Ms Dodie Donovan v Regents on the Lake / Me-n-u Catering

[2017] FWC 2759

[2017] FWC 2759

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Ms Dodie Donovan
v
Regents on the Lake / Me-n-u Catering
(U2016/14292)

COMMISSIONER SIMPSON BRISBANE, 18 MAY 2017

Application for relief from unfair dismissal – Jurisdictional objection no dismissal – Dismissal effected – Employer did not comply with Small Business Fair Dismissal Code – Accumulation of issues provided valid reason for dismissal – Dismissal lacked procedural fairness - Dismissal overall not harsh, unjust or unreasonable.

[1] This matter concerns an application under s.394 of the Fair Work Act 2009 (the Act) by Ms Dodie Donovan who alleges that the termination of her employment with Regents on the Lake/ Me-n-u Catering (Regents) was unfair.

[2] The matter proceeded as a determinative conference conducted at the Toowoomba Magistrates Court on Thursday 27 April, and telephone conference in Brisbane on Friday 28 April 2017. Ms Donovan represented herself, Mr Colin Scrivener represented Regents.

[3] Ms Donovan submitted she commenced as a volunteer at Regents in July 2007. Ms Donovan became a paid employee on 4 December 2013. Ms Donovan submitted her position at Regents was never defined although her duties were said to include waitress and kitchen duties. Ms Donovan’s employment ended on 25 November 2016, a period of just less than three years. Ms Donovan performed only a comparatively small number of hours of work for Regents. Ms Donovan claimed to have performed more hours of work in the past however the evidence of Mr Scrivener was that she averaged one shift every 9.5 days, and in the last six months of her employment only earned $3,752.75 or an average of $144.33 per week.

[4] Ms Donovan claims she was dismissed by Regents following a conversation with Mr Colin Scrivener, the Owner of Regents, on the morning of 25 November 2016 where he advised Ms Donovan her employment was going to be terminated. Ms Donovan claims the dismissal was unfair as performance issues had never been raised prior to her termination. Regents raised a jurisdictional objection on the basis that the Applicant resigned voluntarily and was therefore not dismissed. Regents raised a further jurisdictional objection on the basis that Ms Donovan engaged in serious misconduct and Regents had complied with the Small Business Fair Dismissal Code. Ms Donovan disputed she was not dismissed and the allegations of serious misconduct.

[5] Ms Donovan gave evidence, and called Mr Robert O’Reilly and Mr Darren Vayro, her husband, as witnesses in support of her case. Mr Scrivener gave evidence for Regents as well as Mr Tony Morton, Ms Jennifer Stark, Ms Charlotte (Sara) Rogers and Ms Tiana Ramage.

Jurisdictional Objection – Applicant not dismissed

[6] Regents submitted that Ms Donovan “walked out” following a conversation between Mr Scrivener and Ms Donovan at the workplace on the morning of 25 November 2016, and that as a result, she was not sacked.

[7] Ms Donovan, Mr Scrivener and Ms Ramage were the only witnesses who could give direct evidence about what was said in the conversation between Mr Scrivener and Ms Donovan on the morning of 25 November 2016. Ms Donovan asserts she was told she had been terminated whereas Mr Scrivener asserts that he told Ms Donovan that he intended to terminate her however when he sought to have a discussion about the matter Ms Donovan ended the conversation saying words to the effect of “this isn’t over”.

[8] Ms Tiana Ramage, who was present at the time of the conversation on 25 November, provided evidence for Regents. Ms Ramage stated that Ms Donovan came in to the workplace at approximately 7:30am with her two children, whereby Mr Scrivener advised Ms Donovan that he had something to discuss with her after Ms Donovan had dropped her children to school. Ms Ramage stated that Ms Donovan returned later that morning and said the following exchange took place:

“Colin told Dodie that he was going to terminate her employment. Before he could explain Dodie got furious and said that if this was true she wanted a letter of termination of employment, Colin said that that could be arranged. She also commented that she couldn't understand why he was choosing to keep his wife happy and save his marriage instead of choosing to keeping [sic] her on as staff. She was still angry about the fact that he was doing this as she bought gifts and bragged about booking massages for him. She stormed out of the kitchen calling behind her that "this wasn't over". Colin looked at me and asked me what I thought it meant and I shrugged my shoulders and said" I didn't know," Dodie was always boasting about the lawsuits she has previously won so I suggested that maybe that was what she might have meant. After Dodie had left Colin rang his wife, she manages the book work for the business, and told her that Dodie requested a termination of employment certificate and letting her know that I was there when he tried to tell Dodie.” 1

[9] It is clear from Ms Ramage’s evidence that she had a conversation with Mr Scrivener earlier on the same morning where Mr Scrivener told Ms Ramage that he was intending to terminate Ms Donovan and that he was just waiting for the right time. It is also clear Ms Ramage said that she told Mr Scrivener she could stay as a witness for him because they both knew that Ms Donovan could be unpredictable and explosive when things didn’t go her way. Ms Ramage also says that Mr Scrivener rang his wife to tell her that Ms Donovan requested a termination certificate.

[10] The evidence of Ms Ramage, Ms Donovan and Mr Scrivener is generally consistent and to the effect that when Ms Donovan returned to the restaurant on the morning of 25 November after dropping her children to school, Mr Scrivener told her that he was going to terminate her employment. Where the evidence departs is that Ms Ramage and Mr Scrivener maintain that before Mr Scrivener could explain his intention to terminate Ms Donovan, she became furious and said that if this was true that she wanted a letter of termination.

[11] Ms Donovan said that Mr Scrivener said to her words to the effect that he needed to make a decision between Ms Donovan and his wife. Mr Scrivener accepted that he had said to Ms Donovan that his wife was not comfortable with Ms Donovan booking a massage for him. Mr Scrivener said in other evidence that his wife had told him that she was not comfortable with Ms Donovan coming into the workplace at times when she was not rostered to work, ignoring her and asking where Mr Scrivener was. Mr Scrivener also claimed that he raised with Ms Donovan the issue of a complaint made by Rotary that they did not want Ms Donovan on shift when they had their weekly breakfast gatherings. Mr Scrivener claimed that the last thing he said was that he wanted to discuss things.

[12] Ms Donovan and Mr Scrivener both agree that Ms Donovan made a phone call to Mr Scrivener later that morning requesting confirmation of her termination. Mr Scrivener did not from the evidence appear to take issue with Ms Donovan’s request for confirmation of her termination. Ms Donovan sent an email to Ms Laureen Scrivener later that day requesting a separation certificate. Mr Scrivener said he later received advice that he had not dismissed Ms Donovan because she had walked out.

[13] Mr Scrivener confirmed in the course of the determinative conference that it was his signature on an Employment Separation Certificate dated 5 December 2016 (the Certificate) that described the reason for separation as ‘misconduct as an employee’, and the further detail provided was “Handing out alcohol at work to staff. Negative person. Upsetting client.” The Certificate stated the employment ceased on 2 December 2016. When I put to Mr Scrivener that the Certificate tended to support Ms Donovan’s assertion that she was dismissed, and that she did not cease work voluntarily Mr Scrivener appeared to accept that the Certificate created that impression. He did not seek to explain why he wrote what he did on the Certificate in circumstances where his evidence contradicted it.

[14] The evidence concerning the matter of whether a dismissal occurred, and if so when, is not entirely clear. I am however inclined to the view that the employment was finally terminated in the course of the telephone conversation that both Ms Donovan and Mr Scrivener agree occurred on 25 November after the earlier exchange between them on that morning. I am of that view because I am satisfied that while Mr Scrivener told Ms Donovan of his intention to terminate her during the conversation on the morning of 25 November, termination had not yet been effected as he was still in the course of explaining his intentions when Ms Donovan ended the conversation.

[15] I am satisfied the termination was given effect in the course of a telephone conversation later that day whereby Ms Donovan requested written confirmation of her termination. There is no evidence that Mr Scrivener took issue with her request, and it would appear he decided not to seek to further engage with Ms Donovan about his earlier stated intention to terminate as if it was understood by both Ms Donovan and Mr Scrivener that the earlier stated intention was being put into effect. The Separation Certificate that Mr Scrivener later completed and sent to Centrelink tends to confirm my view this is what both Mr Scrivener and Ms Donovan understood at the time had occurred, despite the Separation Certificate indicating the termination did not occur until a week later on 2 December 2017.

Jurisdictional Objection – Small Business Fair Dismissal Code

[16] Regents raised a further jurisdictional objection on the basis that it is a small business and Ms Donovan engaged in behaviour that constituted serious misconduct. Regents submitted that Ms Donovan engaged in serious misconduct and provided a range of reasons in material filed prior to the determinative conference. Both parties were self-represented, and the manner in which material was presented made the task of clearly defining the reasons relied upon by Regents somewhat difficult. Regents filed two separate outlines of argument on merits, in addition to two separate outlines of argument on their jurisdictional objections.

[17] I sought to glean from the material filed the misconduct that Regents asserted was the misconduct it relied upon for the purposes of satisfying the Small Business Fair Dismissal Code.

[18] I sought to be clear on this point by putting this directly to Mr Scrivener during his evidence. Whilst there were a wide range of issues that were raised by Regents against Ms Donovan in the material filed by Regents the evidence of Mr Scrivener at the determinative conference was to the effect that the specific misconduct relied upon for the purposes of satisfaction of the Code were as follows:

(i) An alleged workplace health and safety issue concerning her wearing artificial finger nails;

(ii) An issue concerning a sum of money missing from the till;

(iii) Bullying of young staff at work;

(iv) Taking alcohol for herself and her son and Drinking alcohol during a function on 12 November 2017;

(v) Overstepping her role as an employee in the context of an appropriate employer/employee relationship.

[19] Other issues were raised in the course of the determinative conference including an issue in connection with the alleged theft of an ice machine. However, as I understood Regents’ case, this was not relied upon in connection with the jurisdictional objection regarding the Small Business Code as a basis for summary dismissal at the time. I will deal with each of the issues that I understood Regents to rely on for the purposes of the Small Business Code.

Nails Issue

[20] Evidence was given by Ms Donovan, Mr Scrivener and Mr Morton on the issue of Ms Donovan wearing artificial finger nails at work. Ms Donovan accepted she wore artificial finger nails to work but claims she was never instructed not to wear the nails. She asserted any discussion concerning her nails was more to the effect that they may have made it more difficult to perform her role, and that it was joked about. Ms Donovan asserted she had worn the nails for 25 years and claimed she had never been directed to remove them during her time at Regents.

[21] The evidence of Mr Scrivener and Mr Morton was that they had spoken to Ms Donovan about the state of her finger nails being too long in the context of working in a restaurant. Mr Scrivener said the nails were too long and could break off or fall into the food. Mr Scrivener said that he had asked Ms Donovan not to wear them a couple of times. Both Mr Scrivener and Mr Morton’s evidence fell short of them having given Ms Donovan a clear direction not to wear them. In the circumstances I am inclined to the view that whilst a concern about her wearing the nails was raised with Ms Donovan on a number of occasions, she was not given a clear direction about this issue. On that basis I am not satisfied that Ms Donovan engaged in conduct that made it fair for Regents to dismiss her without notice or warning on the basis that the employer believed on reasonable grounds that her conduct was sufficient to justify immediate dismissal.

Money missing from restaurant till Issue

[22] Mr Scrivener said that money went missing from the till several weeks before 25 November. It appears from the evidence an allegation that Ms Donovan stole money was never put squarely to her. Ms Donovan said that on the day in question a delivery driver came to the premises and the till was sitting on the counter and the door to the premises was open. Ms Donovan said that she told Mr Scrivener she believed a delivery driver took the money. Ms Donovan emphatically denied taking money from the till.

[23] Mr Scrivener said he became aware there was money missing from the till that same day. Mr Scrivener gave evidence that he followed up the issue with the delivery company whose representative had been on the premises on the day and the company denied its driver would have taken any money. The matter was never put to Ms Donovan again. In the circumstances I cannot be satisfied that Ms Donovan engaged in conduct that made it fair for Regents to dismiss her without notice or warning on the basis that the employer believed on reasonable grounds that her conduct was sufficient to justify immediate dismissal.

Taking UDL cans and drinking alcohol during a function

[24] Mr Scrivener claimed that during a function on 12 November 2016 attended by over 100 guests the restaurant lost power and candles were used to continue the function. Mr Scrivener claimed that part way through serving food at the function Ms Donovan asked him if she could have a cold drink, to which he replied that she could. Mr Scrivener claimed he later became aware Ms Donovan had gone to the bar and served herself and her son (who was also working) an alcoholic drink, which was contrary to his policy that no staff were to drink alcohol while working. He said that the rule was that staff could have a drink when customers have left the premises, but not when customers were still at the restaurant. Ms Stark supported Mr Scrivener’s evidence that it was generally understood employees were not to drink at work until all customers had left. He said he spoke to Ms Donovan about the matter and advised her that what she had done was unacceptable.

[25] Ms Donovan claimed Mr Scrivener said that they could have drinks from the bar. Ms Donovan claimed Mr Scrivener had agreed that her son could have a spirit. Ms Donovan claimed her son had finished working at the relevant time. Mr Scrivener’s evidence was Ms Donovan’s son was washing up at the time. Ms Donovan said when Mr Scrivener “carried on” she told her son to go and pay for the drink. Ms Donovan said Mr Scrivener came storming through the kitchen and “had a go” at herself and Ms Stark about drinking. Ms Donovan accepted that customers were still at the restaurant at the relevant time.

[26] Ms Stark said on the night Ms Donovan asked everyone in the kitchen if they wanted a drink from the bar, and that she said to Ms Donovan that she would need to go and ask Mr Scrivener if that was okay first. Ms Stark said that Ms Donovan left and when she came back said that Mr Scrivener had said that it was okay for everyone to have a drink from the bar. Ms Stark said that she would never have had an alcoholic drink if Ms Donovan had not come and said to her that they were allowed to get a drink from the bar. Ms Stark said there was no way she would have had a drink at work if she did not believe Mr Scrivener had said it was alright. Ms Donovan said that Ms Stark got her own drink. Mr Morton supported Mr Scrivener’s account of this incident in his statement but his oral evidence was less sure about what happened.

[27] Ms Donovan’s evidence appears to be contradictory to the extent that she asserted Mr Scrivener had said her son could drink alcohol but was later upset because there had been drinking of alcohol. Whilst Ms Donovan claimed Mr Scrivener had allowed her son to drink because he had finished his shift, the evidence generally supported the conclusion that work was continuing and patrons were still at the restaurant, and I find it unlikely Mr Scrivener agreed to the drinking of alcohol by any staff at the time.

[28] I am inclined to accept that Ms Donovan knew at the time of this incident that Mr Scrivener did not approve of any of his employees drinking alcohol while the restaurant was still serving customers and yet, she facilitated the drinking of alcohol at that time. However it also appears Mr Scrivener made very clear with Ms Donovan his displeasure at her conduct at that time on 12 November 2016. On that basis I cannot be satisfied that Ms Donovan engaged in conduct that made it fair for Regents to dismiss her without notice or warning on the basis that the employer believed on reasonable grounds that her conduct on 12 November was sufficient to justify immediate dismissal about two weeks later on 25 November.

Bullying of young staff issue

[29] The issue of bullying of staff by Ms Donovan appeared to arise throughout the evidence of the various witnesses for the Regents, not so much as an allegation in connection with specific events at specific times but often as a general observation made by a number of witnesses about working with Ms Donovan. For example Mr Scrivener said in his evidence that one of Ms Stark’s daughters had not wanted to work with Ms Donovan. Ms Stark gave evidence that she had worked at Regents herself since March 2016. Ms Stark gave hearsay evidence that her two daughters could not work with Ms Donovan as she made them cry at work, and neither of her daughters work for Regents any longer. Neither of Ms Stark’s daughters gave evidence themselves. Ms Stark said in her oral evidence that Ms Donovan had attacked a lot of people and she didn’t want to be involved in the pettiness.

[30] Mr Morton said that Ms Donovan disrespected Mr Scrivener if he gave her orders and that she wanted to do it her way. Mr Morton claimed that when in trouble Ms Donovan was moody and picked on other staff.

[31] Mr Scrivener also claimed that Charlotte (Sara) Rogers resigned because she did not want to work with Ms Donovan. Ms Rogers gave evidence herself that her experience working with Ms Donovan was that she was bossy, overbearing and patronising of younger staff regardless of experience. Ms Rogers claimed that she observed Ms Donovan being melodramatic and vindictive whilst working with her, as well as manipulative. Ms Rogers also said that Ms Donovan was a “liar” and was “toxic”.

[32] Ms Tiana Ramage said that Ms Donovan was a very challenging woman to work with, would get frustrated easily and was difficult to work with. Ms Ramage said Ms Donovan brought a lot of her personal issues to the workplace. Ms Ramage said she personally did not enjoy working alongside her.

[33] Ms Ramage said at one point she spoke to Mr Scrivener and told him she was going to leave. Ms Ramage also said that the reason she agreed to stay as a witness to the conversation between Ms Donovan and Mr Scrivener on 25 November was because she was moving to Townsville and therefore Ms Donovan could not retaliate against her, and it would “help protect the other girls.”

[34] The evidence discloses that a number of staff had various concerns about Ms Donovan’s behaviour at work, and about working with her. However the evidence does not show that Ms Donovan was warned or counselled about these issues, or that she may be dismissed if her behaviour did not improve. This should have been done. I am not satisfied that Ms Donovan engaged in conduct that made it fair for Regents to dismiss her without notice or warning on the basis that the employer believed on reasonable grounds that her conduct in connection with the generalised concerns being put to him by other employees was sufficient to justify immediate dismissal without the need to first address the issues with her.

Overstepping her role as an employee

[35] The evidence of both Ms Donovan and Mr Scrivener was to the effect that they had been good friends prior to the relationship turning sour.

[36] Ms Rogers said that Ms Donovan was constantly involved and talking about court matters. Ms Rogers said she believed Ms Donovan did this for attention and there was no need to talk about these matters at work.

[37] Ms Ramage also said that Ms Donovan would discuss court cases she was involved in. Ms Ramage said she regarded Ms Donovan’s behaviour in this regard as boasting, and that it was “like she could take on anyone she wanted.”

[38] Mr Morton claimed that Ms Donovan made up stories, loved being in court and loved to come back and tell stories of what happened in her court cases.

[39] Ms Ramage described Ms Donovan as a very strong woman, who is strong willed and likes things done her way. Ms Ramage said in a business where she is an employee this is not very beneficial.

[40] I do not intend to set out in detail all of the matters that were raised that would fall into a category of the claim that Ms Donovan stepped outside the bounds of what is appropriate in an employer employee relationship. Some examples include a claim Ms Donovan gave inappropriate gifts to Mr Scrivener. It appears this was a reference to arranging an appointment for a massage and also the gift of a CD. Ms Donovan said in relation to the massage issue that it was part of course being conducted for students and she extended the offer to make an appointment for other employees. In relation to the CD it was clarified in the course of the evidence that the CD was in fact a joint gift from Ms Donovan and another employee.

[41] Whilst Mrs Scrivener did not give evidence herself, Mr Scrivener’s own evidence supports the conclusion that Mrs Scrivener was not happy about Ms Donovan continuing to be employed by Regents because of concerns she held about the manner in which Ms Donovan conducted her relationship with her husband Mr Scrivener. Mr Scrivener submitted the following about Ms Donovan;

“Her placing me in a hard spot with advances which made staff uncomfortable and my wife” 2

“…yes I had to say enough is enough, her toxic ways was [sic] bringing the business down, my self [sic], my marriage, and staff. 3

[42] Having considered all of the relevant evidence on this issue I am not satisfied it supports a conclusion that made it fair for Regents to dismiss her without notice or warning on the basis that the employer believed on reasonable grounds that her conduct in connection with these matters was sufficient to justify immediate dismissal without the need to first address the issues with her.

[43] Having considered each of the matters raised in connection with the Small Business Fair Dismissal Code I have concluded that Regents has not complied with the Code and on that basis it is necessary consider the merits of the matter in accordance with section 387 of the Act.

Other Matters

Ice Machine Issue and bottles of scotch

Mr Scrivener gave evidence that after Ms Donovan ceased to be employed by Regents, he complained to the Queensland Police about her failure to return to him an ice machine that he had previously agreed for her to use for a private party on 9 October 2016 for her daughter. Ms Donovan was subsequently charged by the Queensland Police with theft of equipment that belonged to Regents in connection with her failure to return the ice machine to Mr Scrivener. Ms Donovan advised she was contesting the charge. I warned Ms Donovan that she was entitled to seek to rely on grounds of self-incrimination as a basis to refuse to answer questions concerning this matter if she wished. Ms Donovan did not seek to do so.

[44] Mr Scrivener said he first asked for the ice machine to be returned about 2 weeks after the party on 9 October but it was not returned. About a week after 25 November 2016 Ms Stark wanted to use the ice machine for her son’s birthday party and Ms Stark tried to text and ring Ms Donovan about the ice machine without success. Mr Scrivener said he wanted the Police to try and retrieve the ice machine. Mr Scrivener said the Police advised him that they had spoken to Ms Donovan and she said she did not have the ice machine.

[45] Ms Donovan said she was offered the ice machine by Mr Scrivener for her daughter’s party. Ms Donovan said when she transported the ice machine in her car the small feet of the machine cut into the car seats in her car. This was apparently the reason Ms Donovan indicated why she was reluctant to return the ice machine using her own car. Ms Donovan said two weeks after she was dismissed she received a phone call from the Police and she advised the Police she did not have the ice machine.

[46] There appeared to be a conflict between the evidence of Ms Donovan and one of her own witnesses, her husband Mr Darren Vayro on this issue. Ms Donovan said on the day she was dismissed she rang her husband and asked him to return the machine to Mr Scrivener. Ms Donovan also added in her evidence that she had said to her husband Mr Vayro, that Mr Scrivener had stolen scotch that belonged to Mr Vayro. Mr Donovan said that Mr Vayro said to her at the time that Mr Scrivener was not getting the ice machine until he got his stolen scotch back.

[47] In his evidence Mr Vayro said that when Ms Donovan was sacked he took the machine and decided to keep it as Mr Scrivener had stolen from him. Mr Vayro said the machine was returned when Ms Donovan was given a notice to appear in court. Mr Vayro said he took the ice machine to his parents’ property and stored it in his parents’ shed. He said the ice machine was used on 27 December 2016 for a private family event and returned to Mr Scrivener. Mr Scrivener confirmed the ice machine was returned in March 2017.

[48] Mr Vayro said in his evidence that the reason he took the machine was because when Mr Scrivener helped Ms Donovan move Ms Donovan gave Mr Scrivener 2 bottles of scotch which belonged to him and not Ms Donovan. The reason it appears Mr Vayro took the ice machine according to his evidence is that he maintains Mr Scrivener had two bottles of scotch that belonged to him. However his evidence is somewhat contradictory as he said Mr Scrivener stole the scotch, but also indicated it was his understanding Ms Donovan gave Mr Scrivener the scotch to keep safe from him.

[49] The evidence makes clear Ms Donovan gave Mr Scrivener scotch that was the property of Mr Vayro, and after her falling out with Mr Scrivener gave Mr Vayro the ice machine that was the property of Mr Scrivener, in circumstances where she knew Mr Vayro did not intend to return the ice machine. Mr Scrivener to his credit said that he returned the scotch to Mr Vayro on learning that the scotch was not Ms Donovan’s property to give and belonged to Mr Vayro.

[50] It was put to Mr Vayro by Mr Scrivener that he had sent Mr Vayro a text message on 16 December 2016 asking if he had the equipment from Ms Donovan and Mr Vayro responded that he was still working on it. Mr Vayro also did not appear to take issue with having received the text and responded as claimed by Mr Scrivener, or the proposition put to him that he had spoken to staff of Regents a couple of weeks after the termination of Ms Donovan about the ice machine and said to staff he did not know where it was.

[51] The evidence of Ms Donovan and Mr Vayro concerning when Mr Vayro took the ice machine is contradictory. Mr Vayro under cross examination retreated into giving evidence that he couldn’t remember when he took the machine and it could have been anywhere between a day and a month after Ms Donovan was terminated.

[52] In my view this whole matter does not reflect well on Ms Donovan as it is clear she had been in possession of property that belonged to Mr Scrivener, claimed that she had contacted her husband on 25 November and asked him to return the ice machine, was aware from as early as October according to Mr Scrivener, but no later than the middle of December that Mr Scrivener was seeking its return given her conversations with Queensland Police Officers. Despite knowing that, it appears Ms Donovan did little or nothing to seek to facilitate the return of the machine by her husband, and the ice machine was not returned until March 2017, when court proceedings had been initiated.

[53] Further it appears from Ms Donovan’s evidence Mr Scrivener was given two bottles of scotch by her after he had assisted her to move, however Ms Donovan did not seek to correct Mr Vayro’s incorrect belief that Mr Scrivener had stolen his scotch.

Harassment of Rotary member issue

[54] Regents provided other reasons for terminating Ms Donovan’s employment. One of these other reasons was that it was alleged Ms Donovan had been harassing members of Rotary who conducted a weekly breakfast meeting at the restaurant. Mr Scrivener said that he had received a complaint from Rotary about Ms Donovan’s conduct toward a member of Rotary while attending the restaurant. Mr Scrivener said he spoke to Ms Donovan about the matter.

[55] Mr Scrivener claimed that a representative of the Rotary Club of Garden City had said to him they did not want Ms Donovan on shift when they attended the restaurant for their weekly breakfast gathering. Mr Scrivener said Ms Donovan would attend the restaurant on Friday morning breakfasts when Rotary met, even when she was not rostered on, and seek to discuss with a particular member of Rotary legal matters when the member was trying to enjoy the Rotary gathering. Ms Donovan said in response to this that it was in connection with her study. Without going through all of the particulars of the matter Ms Donovan accepted in her evidence that she “did step over the line” in terms of her interactions with a member of Rotary.

Issues in connection with talking about asking for a hitman for an x [sic] named Robert,

[56] The evidence in regard to this matter was somewhat difficult to follow. Mr Robert O’Reilly included in his statement a response to a claim from Mr Scrivener that Ms Donovan had informed him how to break into the house of Mr O’Reilly. Mr O’Reilly said he found this hard to believe as he has security camera surveillance across the front of his house and an alarm system. It was put to Mr O’Reilly that he had sought and been granted a Domestic Violence Order against Ms Donovan. He confirmed this was correct, and said that it was because Ms Donovan had been causing trouble in a family matter. Mr Scrivener also put questions to Mr O’Reilly about how he could have known certain things about Mr O’Reilly’s property if he had not been to the property before. I have not found this evidence of much assistance in determining the matter before me and so will not have regard to it.

HARSH, UNJUST OR UNREASONABLE

[57] For Regents to have had a valid reason for the dismissal of Ms Donovan it requires that the reason be ‘sound, defensible and well founded’.  4 Whilst there was some dispute about the amount of work Ms Donovan’s had previously performed for Regents, there was no dispute the engagement was casual, and the evidence indicates Ms Donovan was only working comparatively few hours, in the order of 1 shift every 9.5 days toward the later part of her employment.

[58] Whilst I have not been satisfied that the evidence supported a conclusion that Ms Donovan’s conduct satisfied the Small Business Fair Dismissal Code warranting summary dismissal, I am satisfied that the relationship had deteriorated to the point that it was no longer tenable for Regents to continue the employment relationship.

[59] There is not one issue of itself that provided Regents a valid reason for dismissal, however the accumulation of issues considered in the evidence taken together provide a sound, defensible and well founded reason for Mr Scrivener to terminate Ms Donovan. It is clear that Mr Scrivener had lost trust in Ms Donovan. He described on a number of occasions his belief that her presence in the workplace was “toxic”. Whilst the evidence concerning the money missing from the till does not prove Ms Donovan took money, the evidence suggests it was most likely either the driver who visited the premises on the day in question when the till was left unattended, or Ms Donovan. Mr Scrivener does not believe Ms Donovan’s denial.

[60] Mr Scrivener and Mr Morton spoke to Ms Donovan about not wearing the artificial finger nails and asked her a number of times not to wear them but did not take the step of formally directing her not to wear them. It appears Ms Donovan decided to continue to wear the nails despite her employer’s requests she not do so.

[61] Ms Donovan did facilitate the drinking of alcohol at work at the function in November, and told others Mr Scrivener had approved them drinking alcohol at work despite knowing he had not. This caused further damage to the employer’s level of trust and confidence in her. Ms Donovan did not dispute that Mr Scrivener spoke to her at the time of the incident and was most displeased about what she had done.

[62] The evidence also disclosed that a number of other employee’s had complained to Mr Scrivener about working with Ms Donovan, and there was evidence some no longer wished to work with Ms Donovan or at Regents because of Ms Donovan. Given these complaints were coming from a number of sources it was not unreasonable for Mr Scrivener to have formed a view that there was some substance to these complaints.

[63] There is also evidence that Ms Donovan was in the habit of visiting and being in the workplace when she was not rostered to work which was one of the issues Mrs Scrivener was displeased about. The complaint from Rotary members about Ms Donovan’s conduct also required Mr Scrivener to speak to her, and given Rotary were regular users of the premises this was potentially quite damaging to the business. The evidence generally supported a view that Ms Donovan’s on-going presence as an employee was having a destructive impact on the business despite her only working such a small number of hours. The evidence when viewed in totality is sufficient for Regents to have had a valid reason for bringing the relationship to an end when it did.

[64] I accept that the evidence is that Mrs Scrivener was placing some pressure on her husband to terminate Ms Donovan, he said as much to Ms Donovan. This no doubt created a perception in Ms Donovan’s mind that this was the reason for her termination. However the evidence as set out above demonstrates the issues which much wider than Mrs Scrivener’s views of Ms Donovan.

[65] Ms Donovan was not notified of the reasons for dismissal on 25 November, but I am inclined to accept the evidence of Mr Scrivener and Ms Ramage that Ms Donovan’s immediate reaction to Mr Scrivener’s stated intention of terminating her employment effectively brought the conversation to an end, and prevented any further ventilation of the issues that that might otherwise have been raised by Mr Scrivener.

[66] Ms Donovan was not given a proper opportunity to respond to the reasons related to her conduct. It would have been preferable for Regents to have set out to Ms Donovan the reasons it sought to rely on as the basis for it considering her termination. Given both Mr Scrivener and Ms Ramage indicated in their evidence that they were anticipating Ms Donovan would react strongly to being advised her employment was threatened it would have been sensible to reduce the issues to writing. However as stated above Ms Donovan did not assist her cause by reacting in the manner that she did.

[67] Given the way the termination was effected there was no real opportunity for Ms Donovan to have a support person present for discussions concerning the dismissal. Section 387(e) is not relevant as the dismissal was related to conduct and not performance.

[68] Regents is a small business. I understand it employed only six people at the time of termination, although Mr Scrivener said at the determinative conference that whilst still a registered company was ceasing to trade. Regents have no dedicated human resources expertise. Both the size of the business and lack of any expertise in human resource would have impacted on the procedure followed in effecting the dismissal.

[69] I am also of the view that the issue concerning the ice machine needs to be considered as another matter that is relevant. Whilst it was not in the mind of the employer at the time of the termination, it was clear that the ice machine was the property of Regents and given to Ms Donovan for a private party in early October 2016. Despite Ms Donovan knowing that Mr Scrivener was seeking its return it was not returned until March 2017 by Ms Donovan’s husband despite Mr Scriveners attempts to have it returned through the intervention of the Queensland Police. This is further evidence of a complete breakdown in the relationship.

[70] I have considered each of the elements in s.387 and have formed the view that for all of the reasons set out above that the dismissal was not harsh, unjust or unreasonable and on that basis have decided to dismiss the application.

COMMISSIONER

Appearances:

Ms D. Donovan appearing on her own behalf

Mr C. Scrivener appearing for the Respondent

Hearing details:

2017.

Toowoomba:

27 April

Brisbane:

28 April

 1  Statement of Tiana Ramage (undated).

 2   Small Business Fair Dismissal Code Checklist.

 3   Form F3 Employer Response to Unfair Dismissal Application.

 4   Selvachandran v Petron Plastics Pty Ltd (1995) 62 IR 371, 373.

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