Ms Erica Lakatos v Termicide Pest Control Pty Ltd

[2014] FWC 5839

[2014] FWC 5839

FAIR WORK COMMISSION

DECISION

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

Ms Erica Lakatos
v
Termicide Pest Control Pty Ltd
(U2014/4827)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 25 AUGUST 2014

Summary: whether dismissal harsh unjust or unreasonable - conflict of interest - failure to assist employer in investigation or to respond to recently founded questions - employer entitled to seek clarity as to its business risks.

[1] This matter concerned an application by Ms Erica Lakatos (“the Applicant”) made under section 394 of the Fair Work Act 2009 (“the Act”). The Applicant seeks an unfair dismissal remedy in respect of her dismissal on 3 February 2014 by Termicide Pest Control Pty Ltd (“the Company”).

[2] The Applicant performed duties as a bookings officer for the Company, and had performed these duties since 17 September 2012.

[3] At the broadest level, the Applicant contends that she was ‘unjustly’ dismissed for reasons that she was not given:

• a valid reason to be dismissed;



• a chance to respond;



• an opportunity to have a support person;



• a termination notice; and



• any warning of any unsatisfactory performance.

[4] The Applicant claims that her partner (Mr Allan McKay) and her partner’s son (Mr Andrew McKay) had both been employed by the Company in the past and had been terminated. The Applicant contended that the day following the dismissal of her partner, he had received a telephone call in which Mr Paul Jeynes, the Company Director, in an allegedly inebriated state had informed Mr McKay that “Your girlfriend is sacked too”. This occurred a number of weeks prior to the dismissal of the Applicant.

[5] The Applicant’s partner corroborated (through his witness statement) the same conduct, which, according to Mr Andrew McKay arose because of Mr Jeynes’ concern over his (Mr Andrew McKay’s) unfair dismissal application

[6] When the Applicant attended work the next day (regardless of Mr Jeynes’ alleged comments above) she continued to perform her duties as she had previously and no reference seemingly was made to the above alleged communication.

[7] The Applicant claims that she started to receive what she described as “harassing phone calls” from Mr Jeynes.

[8] One such telephone call she described as “harassing” occurred when Mr Jeynes inquired whether “there would be a problem between us [because] my partner had been sacked.” The Applicant claimed that she replied, “No, why should there be?”

[9] In other alleged telephone calls Mr Jeynes was said to have inquired as to the identity of members of her partner’s family and at another time also indicated that, “I'm going to bring down the whole McKay family”.

[10] On 3 February 2014, the Applicant claims that Mr Jeynes telephoned her at 9:30 AM and made enquiries about whether her partner had obtained a new job. The Applicant stated that she replied that she “didn’t know”.

[11] Mr Jeynes was said to have laughed in relation to her response to the question.

[12] A short while later Mr Jeynes spoke with the Applicant again, and was said to have posed a series of questions about where her partner was now working. The Applicant kept replying, she says, that “I don’t know”, and explained to Mr Jeynes that he should call her partner himself to obtain the necessary information.

[13] Mr Jeynes was said by the Applicant to have directed her thereafter in the following terms:

Put down your pen, and leave my office.

[14] The Applicant claims that upon leaving the office she spoke to Ms Angela Buckland, the office manager. After the Applicant had informed Ms Buckland of the events that transpired, Ms Buckland was said to have stated that the Company needed to know where her partner was working. The Applicant was said to have enquired:

Why? What does it have to do with my job? I just want to go back to my desk and continue with my job.

[15] The Applicant was then “taken into” the office of Ms Jenny Hyman, the Company’s finance/business manager. Ms Hyman also indicated that the Applicant:

[N]eeded to tell [the Company] where [her partner] was working, as it might be a big rival of ours and they need to know.

[16] The Applicant said that she “eventually relented” under further questioning and disclosed to Ms Hyman the identity of her partner’s place of employment (which was in fact a rival pest control company). The Applicant was advised by Ms Hyman to go home and that she would be telephoned shortly in order to arrange a meeting with her (Ms Hyman) and Mr Jeynes.

[17] Ms Hyman subsequently telephoned the Applicant and indicated, so the Applicant said, that:

We are not going to ask you back Erica, you were terminated.

[18] The Applicant inquired as to why she had been terminated and Ms Hyman replied:

You did not divulge the name of the company [where your partner] is now working.

[19] The Applicant claimed that she replied that she had disclosed the location of her partner’s place of work. But Ms Hyman indicated that that information was only disclosed “once we dragged it out of you”. The Applicant claimed that she commented that that she hadn’t “done anything”, to which Ms Hyman was said to have replied, “Well it’s too late is that when you have”. (sic)

[20] The letter of termination, directed to the Applicant by Mr Jeynes, read relevantly as follows:

I am writing to you about the termination of your employment with Termicide Pest Control Pty Ltd.

I refer to a meeting on Monday 3 February 2014 which was attended by yourself and Jenny Hyman. At this meeting was discussed that your employment was terminated because of a “conflict of interest” due to your partner commencing employment with an opposition pest control company. It was also explain to you how this conflict of interest poses a threat, not only to my company, but to that of the Termicide staff given the risk of sensitive information falling into the hands of this competitor, be it unintentional or not, this would undoubtedly result in financial loss for my company along with possible job losses.

The termination of employment with Termicide is regrettable, however in order to protect my company from risk of possible financial loss, I do believe this to be the only option available to me.

You will be paid any accrued entitlements and outstanding remuneration, including superannuation, up to and including the date of this letter.

I wish you all the best in securing future employment, and have no hesitation in acting as a referee should you require one.

[21] The letter of termination does not reflect the particularised circumstances relied upon by the Company to defend its actions. Indeed, the Applicant noted that the letter of termination did not reflect the circumstances of the conversation with Ms Hyman set out above (which concerned nondisclosure of information as requested).

[22] The Company contends that the Applicant, in actuality, was dismissed for reasons of having in her possession documents about the Company’s business which reasonably implied to it that the Applicant’s conduct gave rise to a conflict of interest which was required to be managed for the sake of the Company’s commercial interests.

[23] To this end, the Company contended that the Applicant’s construction of the events leading to the termination was selective. The Company claims that on 3 February 2014 Ms Buckland identified numerous printouts from the Company’s database in the Applicant’s desk drawers which concerned lists which contained real estate agent details and properties managed by them. Such documents were not required in the normal course of the Applicant’s duties, it was claimed.

[24] Mr Jeynes, once informed of this development, was then said to have telephoned the Applicant and told her to report to Ms Hyman. Mr Jeynes indicated to the Applicant, so he said, that he could discern no reason why the Applicant would be in possession of the client lists and that a conflict of interest issue may arise.

[25] The Applicant then met with Ms Hyman. Ms Hyman was said not to have had any communication with Mr Jeynes to that point so she adjourned the meeting and advised the Applicant to obtain a support person in the interim. Ms Hyman was said to have utilised the adjournment the purposes of having a discussion with Mr Jeynes. The adjournment was for a short period only.

[26] At the expiry of the adjournment the Applicant did not present at Ms Hyman’s office.

[27] Ms Hyman telephoned the Applicant, so it was claimed, to enquire as to her whereabouts. The Applicant was said to have advised Ms Hyman that she was at home. When invited to return to her place of work the Applicant was said to have replied that there was “no point”. The conversation was said to have ceased at that point.

[28] It was following this set of circumstances that the termination letter set out above was directed to the Applicant.

Some evidentiary issues

[29] There are difficulties in the evidence provided by the witnesses in this matter. Neither of the parties was able to provide comprehensive witness evidence, and much of their claims had to be reconstructed through wider questioning during the course of the proceedings.

[30] As is evident from the above exposition, the Applicant did not make reference in her written evidence to there having been any issue between her and Ms Hyman in relation to documentation of a commercial nature which related to the Company’s clients. The Applicant’s evidence was only to the effect that following a telephone call with Mr Jeynes in which Mr Jeynes abruptly and without context made enquiries of her partner’s place of work, she was then directed to “put down her pen and leave my office”. The Applicant held that she entered a conversation with Ms Hyman only incidentally (for the purposes of being consoled) as she was leaving work in accordance with Mr Jeynes’ direction. Thus, according to the Applicant there was no meeting as such, and no adjournment as such. The Applicant’s viva voce evidence in this respect was as follows:

I received a phone call from Paul Jeynes, because I had sent him an email that he needs to contact the Fair Work Commission immediately with all the details, and he wanted to speak with Ms Jenny Hyman, but before he asked me to put him through, he questioned - asked how is my mate, Allan, and I just said, “I don’t know,” not wanting to get involved in such a conversation, and he just laughed and I put him through to Jenny. He spoke with Jenny for a few minutes and then Jenny called my phone back and said, “Paul wants to speak to you a bit more,” and then Paul came back through to me, started asking me very threateningly, “Where is your partner working now? We need to know,” and I said, “Well, I don’t feel I need to tell you where he’s working. You fired him. Of course he’s going to get another job,” and he basically just said, “We need to know, we need to know, we need to know,” and when I said, “Well, you’ve got his number. You can call him. I’m not going to answer that question,” he said, “Fine. Put your pen down and get out.” 1

[31] In respect of this particular issue, the Applicant’s narrative, as set out in her viva voce evidence and in her witness statement, does not provide any context in which she was persistently asked to identify the place of work of her partner. Even at the later point of her alleged dismissal by telephone by Ms Hyman, the Applicant did not ask why this was a matter of any importance to her employer. Therefore, on the Applicant’s version of events she had an exchange with Ms Buckland and Ms Hyman as to why she was being dismissed, which turned on her failure to disclose her partner’s place of work, but the Applicant never inquired why this would be important to her employer.

[32] This strikes me as being a particularly unusual set of circumstances. Reasonably, it would be expected that the Applicant would have inquired why the matter of her partner’s place of work was important or even relevant. But she did not do so. It is true that on the Applicant’s evidence she asked the question of Ms Buckland, but her written statement records no reason was given by way of a response (even though Ms Buckland - the Applicant said - informed her that “we really need to know where Allan is working”).

[33] In short, the Applicant’s written and viva voce evidence suggests that through the entirety of the exercise, she was unaware as to why she was being asked any questions about her partner’s place of work.

[34] However, the Applicant’s original application provides a different narrative of events. In her lengthy written statement which was appended to her application, the Applicant claimed that Mr Jeynes informed her in his initial telephone conversation with her on 3 February 2014 that he had concerns that there was a conflict of interest in so far as her partner might work for a rival company. The Applicant’s original statement stated that Mr Jeynes apparently expressed a concern about the Applicant having access to information that she could easily pass on to another company. Mr Jeynes had:

[...] said it was a conflict of interest that I worked for him and that my partner worked for another rival company. He said I had access to information that I could easily pass on to the other company. Even though I said I would not do that he again told me to put my pen down, leave the office and take him for unfair dismissal.

[35] This, then, was the point of Mr Jeynes’ inquiry about the place of work of the Applicant's partner. It was not a personally invasive question without a reasonable cause. This is a narrative that is consistent with Mr Jeynes’ narrative as set out in his viva voce evidence as set out above.

[36] The original application also indicated that the Applicant had stated in reply that she would not pass on such information and refused to respond to Mr Jeynes request for her to identify her partner’s place of work. Mr Jeynes was then said to have told her to put down her pen and leave the office and “to take him for unfair dismissal”. The Applicant’s original statement also indicated that she “went to” to Ms Hyman’s office whereupon Ms Hyman (before adjourning the meeting) contended that she should have answered Mr Jeynes’ questions. That is, rather than being taken to Ms Hyman’s office, only incidental to her departure from work (as stated in her written statement, the Applicant had originally claimed that she “went to” Ms Hyman’s office (a course which is consistent with Mr Jeynes’ narrative, which indicated he directed the Applicant to attend Ms Hyman’s office).

[37] I brought this evidentiary anomaly, as it was, to the attention of the Applicant. The Applicant merely embraced the facts asserted in her original statement and overlaid them on her written witness evidence, though it changed the context of that evidence very considerably. For the purposes of these proceedings, the Applicant’s witness statement had the effect of presenting her as an employee of whom personal information was demanded without reason: but the wider evidence - as the Applicant knew all along - was very different. Thus, this was not a case in which a witness, by dint of inexperience perhaps, or absence of representation, had innocently omitted relevant facts and claims. The Applicant’s witness statement and her viva voce evidence was more calculated, for effect or impression.

[38] Other complications arise. That is, the Applicant’s written statement tendered in these proceedings indicated that she had questioned Ms Buckland (following the abrupt conversation with Mr Jeynes) as to why she was being asked questions about her partner and what did this have to do with her job. But the Applicant’s statement, as provided with her original application in these proceedings, indicated that the conversation with Mr Jeynes had fully disclosed what the issues were - there was a perceived, potential conflict of interest and Mr Jeynes wanted to know the full extent of that risk by confirming the Applicant’s partner’s place of work. That is the actual context in which the questions were put to the Applicant and in respect of which she refused to reply.

[39] The Company’s narrative of events provides a context for the questioning to which the Applicant said she was exposed. That is, the Applicant (the Company claims) was asked by Mr Jeynes about her partner’s place of work in the context of the documentation to which she has access. The Company reasonably apprehended a potential conflict of interest and sought to clarify whether the Applicant’s partner performed duties for a rival pest control company.

[40] Thus, the Applicant’s conduct must be put in the context of the Company making enquiries of her to ascertain the extent of its exposure to a conflict of interest.

[41] And further, it would appear that the Applicant was far from unaware of the purpose of her employer’s likely line of inquiry of her.

[42] I say this not only because Ms Julieanne Richardson, who also performed the role of a bookings officer for the Respondent, gave evidence that the Applicant had expressed an awareness of the situation in which she was in given her partner’s place of work. Ms Richardson, who otherwise appears to have had no other involvement in this matter, nor was motivated by any known ulterior purpose, gave the following evidence:

On the morning of Monday 3 February 2014 [the Applicant] advised me that her partner, Alan McKay, who had previously worked for Termicide, had just recently commenced employment with another pest control company. [The Applicant] said she expected Termicide might have a problem with this due to the conflict of interest and made a comment to the effect “they’ll have to catch me before they can fire me”.

[43] The Applicant was therefore not naive as to the circumstances in which she had fallen, and what her employer’s interests might be.

[44] I would add at this point however, that I am not inclined to accept that Mr Jeynes referred the Applicant to the documents allegedly found in her desk draw in his discussion with her on 3 February 2014. I am more inclined, on the balance of probability, to conclude that that allegation was kept back from the Applicant at the time (for reasons known to the Respondent). That is, Mr Jeynes - on the evidence I have heard - can reasonably be taken to have expressed concerns to the Applicant about her having access to commercially sensitive documentation. But I very much doubt he expressly referred to the Applicant having been in possession of documents that (he considered that) she intended to make available to her partner. If he had, the evidence around that issue reasonably would have had a much larger role than it did in the proceedings.

[45] That is, if such an allegation had been made, the conversation between the Applicant and Mr Jeynes and the Applicant and Ms Buckland and Ms Hyman (respectively) would have evidenced a challenge to such an important allegation. As it is, the exchanges that morning evince very little about the particular documentation in question.

[46] There remains a further set of circumstances which are reconstructed in very different terms between the Applicant’s and the Company’s evidence. This concerns the conversation that occurred with Ms Hyman following the Applicant’s departure from the workplace. The Applicant contends in her evidence that Ms Hyman telephoned her and told that she had been dismissed, by Mr Jeynes, because she had failed to disclose promptly her partner’s place of work.

[47] Ms Hyman (taken with the evidence of Mr Jeynes) puts the case differently. Ms Hyman met with the Applicant following Mr Jeynes having directed her to do so (a point of evidence that I have earlier found to be soundly based). Ms Hyman claims that she was unable to progress the meeting as she was not fully informed of the details and needed to speak with Mr Jeynes. Consequently, Ms Hyman adjourned the meeting and suggested the Applicant obtain a support person (an opportunity the Applicant had been provided in an earlier disciplinary incident). Ms Hyman telephoned the Applicant about an hour later and invited her to come back in for a meeting to discuss dismissal proceedings. The Applicant commented that there was, “no point” and the telephone conversation ceased at that point.

[48] In this circumstance, the Applicant had foregone at her own volition the procedural rights to be afforded to her by the “dismissal process” and left that decision making in the hands of her employer.

[49] I think on the balance of probability Ms Hyman’s evidence is more reliable than that of the Applicant. Ms Hyman gave her evidence candidly and her regard for procedure was consistent with the Respondent’s past approaches. Her evidence did not give rise to any suggestion of fabrication or contrivance, and when questioned about aspects of the authorship and origin of certain phrases in the termination correspondence she was frank and to the point, and did not attempt to gild her evidence (though the opportunity to do so presented itself).

[50] By contrast, I have found earlier that the presentation of the Applicant’s evidence was exposed to question.

[51] The dismissal followed events of the day. This does not seem to be case in which the employer took the non-involvement in its procedures as a repudiation of employment, which it could have accepted in due course (perhaps upon further enquiry). When the Applicant said there was no point in her attending work for purposes of the dismissal procedures, she may well have presumed the result, but it does not follow that the Applicant resigned her employment at that point.

[52] By not being involved in the termination process (which was the point of Ms Hyman having invited her to resume their meeting) the Applicant merely disenfranchised herself from participation in the process itself. The employer took the step, instead, of intervening directly and dismissing the Applicant at its own initiative, by way of correspondence as set out earlier.

[53] I indicate further at this point that I do not consider that the Company has exaggerated the commercial sensitivity of the documentation to which the Applicant had access. Mr Jeynes gave credible evidence that having a client list, which indicates the due date for annual termite inspection, allows a competitor to contact the client ahead of the inspection and introduce its own services on the basis that the annual inspection is due, or else undercut the Company’s service price. That is to say, therefore, that the Company held a reasonable concern for its commercial interests.

Legislative provisions

[54] Section 387 of the Act provides as follows:

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.

Consideration

(a) whether valid reason(s) for the dismissal

[55] The Applicant did not provide prompt direct or cooperative assistance to Mr Jeynes upon his enquiries being made of her in relation to his concerns about a conflict of interest that may be apparent. On the Company’s evidence in these proceedings, which I have accepted, the Applicant at no time advised Mr Jeynes (upon his direct questioning) of the place of work of her partner.

[56] It is important for an employee to cooperate with an employer who reasonably raises a point of inquiry, as in this case about a concern in relation to a possible conflict of interest:

We are also of the view that the Commissioner did not err in finding that there was a valid reason for the termination of Mr Villani’s employment. A failure to engage in the conversation to reply to questions that were clearly relevant to the employer’s interests in establishing whether or not Mr Villani’s ownership of or interest in and/or driving of a concrete truck for a competitor was clearly a relevant matter to which the employer was entitled to expect an answer. Failing to provide that level of detail was upon Mr Villani’s head and the termination of his employment in those circumstances was not harsh, unjust or unreasonable. (Villani v Holcim (Australia) Pty Ltd [2011] FCAFC 155 PN 13 and see transcript of proceedings before the Full Bench of FWC in [2011] FWA 141) [My emphasis]

[57] Here, as in the circumstances cited above, the employer had a reasonable concern about a potential conflict of interest between the Applicant and her partner, who had accepted work at a rival business. It was a matter about which the Applicant’s employer was reasonably entitled to enquire.

[58] I do not think that the Company’s concern was exaggerated in this respect, and I enquired into that exact point in the examination. The Company held the view that there were real risks that it had to manage and ascertaining the place of work of the Applicant’s partner was a concern relevant to its business interests. Mr Jeynes’ evidence in these proceedings was clearly put in the proceedings:

Erica had a very different attitude once her fiancé was no longer working with us and it was clearly destructive, and finding that information printed out would be equivalent to a bank teller having everyone else’s credit card details when it wasn’t required for part of their job.

That’s something of an exaggeration, isn’t it, Mr Jeynes?---No, not at all, no. This is the whole thing, and these are names, addresses, times when all these jobs are due. There’s hundreds of them. If you gave that to one household, there’s over $45,000 worth of work on an annual basis. No. It’s tremendously significant. It’s not - - -

What can you do with that information?---With that information, you can ring these people up and say, “Your inspection is due now,” and of course what they then presume is, “Well, this is my - they tell me when it’s due and we know it’s due now,” and this is exactly what they do. They correlate this information and then it’s your database, it’s - so every - this is my annuity stream. This is my rent roll, if you like. This is - and that’s the information that’s most sought-after, and we have got hundreds of these printed out and each of them at $195 a job, all they do is get on the phone and say, “Listen, we’ll do it for $10 cheaper,” and if you have access - “We know it’s due at this time. We can do your warranties.” This is not frivolous information. This is not just, “We once did work for this person.” This is the annuity stream that we have and I don’t believe that it has been taken for as serious as in fact what it is. This was a real, real threat. 2

[59] The Applicant herself cannot be said to have been naive to her employer’s concerns. She conveyed as much to Ms Richardson.

[60] What transpired was that the Company suspected that the Applicant’s partner was working for a rival firm and sought to clarify this situation by directing a question to the Applicant. The Applicant refused upon enquiry by Mr Jeynes, to reply or to otherwise assist the Company.

[61] It appears to me that the Company’s concerns were reasonably founded and the enquiries reasonably directed to the Applicant. The Company was entitled to expect a cooperative response.

[62] It is true that the Applicant “eventually relented”, as she said, to Ms Hyman that her partner did work for a rival business. But she made no such concession to Mr Jeynes, and in response to his questioning, the Applicant said, “I kept replying, “I don’t know””.

[63] The Applicant’s conduct in this regard must be objectively framed: she knew without any ambiguity what the purposes of her employer’s inquiries were, and had anticipated such questions might eventually be asked of her, but she refused to provide her employer with any answer to those inquiries, or to cooperate with him at the most elemental level.

[64] This was a damaging position for the Applicant to have adopted. Following the Applicant’s refusal to cooperate, Mr Jeynes thereafter lost confidence in the Applicant as an employee who would serve him with all due fidelity. The Applicant’s effort to contrive her evidence in these proceedings only reinforced my conclusion in this regard.

[65] I add further that the Applicant’s refusal to reply to her employer also damaged fatally her employer’s confidence in her to manage the very risks which were the subject of the enquiry.

[66] That is, Mr Jeynes was concerned that the Applicant might not be able to manage (or should be able to satisfy him that she could manage) the potential conflict of interest which was of commercial concern to him. But the manner of the Applicant’s exchange with him - her refusal to provide any reply to his queries - jeopardised, and reasonably so in my view, his confidence in the Applicant to manage those risks in the interest of the business.

[67] In light of these findings, in my view the Company had a well founded, sound and defensible (and thus valid) reason for dismissing the Applicant by way of its correspondence of 3 February 2014.

[68] I make the point that it matters not whether the conflict of interest was made out or the Applicant was known to have passed confidential business information to her partner to the benefit of a rival firm. The Company was entitled to act upon its reasonable concerns that its financial interests were at stake and to seek some clarity about its business risks by way of an explanation from the Applicant.

[69] I make the further point that the Company’s case did not press in any obvious way that I should make a finding that the Applicant had printed off the business documents found in her draw (by Ms Buckland) to undermine her employer’s interests. That was a matter that went largely untested in the proceedings (as I have mentioned above).

(b) whether the person was notified of that reason

[70] The Applicant was not notified of the reason for the dismissal in advance of receiving the letter of termination on 3 February 2014. But it was the Applicant who did not return to work following the adjourned meeting with Ms Hyman on 3 February 2014. That is, it was the Applicant’s conduct which frustrated the Company’s capacity to notify her of the reason for her dismissal.

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[71] The Applicant was not given an opportunity to respond to the reason for the dismissal. But the circumstances in this regard are as set out immediately above.

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal

[72] The Applicant’s meeting with Ms Hyman was adjourned. The Applicant had an opportunity to request a support person, but did not take that step. The Applicant, therefore, was not refused an opportunity to have a support person to assist in her pending discussions with Ms Hyman.

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

[73] This is not a matter that reflected on the Applicant’s performance of her duties.

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal

[74] The Company is a small business. The small size of the Company reasonably could have impacted on the procedures it utilised in effecting the dismissal. The process was not rich in concern for detail, a lengthy investigation was not accorded to the issue, and there was no subtlety in expressing the Company’s considered view of the circumstances. One would expect no less from a business of this size with so few available resources at its disposal. Ultimately, however, this matter was not the subject of any direct evidence.

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal

[75] There was some incidental evidence that Mr Jeynes had some experience with unfair dismissal applications, but this was far indeed from an indication that the Company possessed any dedicated human resource management specialists or expertise. The fact the Company did not possess this expertise (but acted through the agency of Ms Hyman) reasonably suggests that it procedures for effecting the dismissal of the Applicant reflected these circumstances. But as I have noted immediately above, this particular matter was not the subject of any direct evidence.

(h) any other matters that the FWC considers relevant.

[76] There are some peculiarities in this case. As I have indicated above the Applicant’s partner and her partner’s son had both been dismissed by the Company at an earlier point in time. Nothing was said about the circumstances of these matters. No doubt the Applicant may have harboured concerns that she was being targeted for dismissal by Mr Jeynes, who was said to have also harboured some ill feeling towards his previous employees (Mr Allan McKay and Mr Andrew McKay). The interactions that occurred - and which I have set out above - were textured by these various difficulties.

[77] But be this as it may, it is the Applicant’s own conduct, in particular set of circumstances, which is the focus of this particular application

[78] That said, I do consider there were elements of harshness in the manner in which the dismissal was given effect. It was always open for Mr Jeynes to reconsider the Applicant’s conduct once she had yielded to Ms Hyman’s further inquiries, and to seek further information to allay his concerns over the prospect of a conflict of interest emerging. It was a an issue that reasonably warranted some wider investigation.

[79] But equally, had the Applicant returned to work to participate in the termination procedures, arguably at least, she may have had another opportunity to press her case (as it might have been) to her employer.

[80] Whilst I consider there were elements of harshness to the manner of the Applicant’s dismissal, I do not think, on balance, that they are sufficient to overwhelm the wider case. That is, in the end, the Applicant refused to respond to the reasonable enquiries by her employer, made in respect of issues which caused him genuine commercial anxiety, and in relation to which he was fully informed (and had anticipated). The Applicant’s conduct in this regard struck at the heart of her employer’s confidence in her as an employee (and who needed to manage the conflict of interest issue that was afoot).

[81] The Applicant also rejected an opportunity to participate in the dismissal procedures, which represents a form of self-inflicted harshness.

Conclusion

[82] In my view, given my findings above and noting my findings in relation to the Company possessing a valid reason for the dismissal of the Applicant I find that the Applicant was not dismissed for reasons that were harsh unjust or unreasonable. I therefore dismiss the application under s.394 of the Act.

SENIOR DEPUTY PRESIDENT

Appearances:

Ms E. Lakatos, Applicant

Mr P. Jeynes, of the Respondent

Hearing details:

Brisbane

2014

18 August

 1   Transcript of proceedings dated 18 August 2014, at PN72.

 2   Transcript of proceedings dated 18 August 2014, at PN305-307.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR554660>