Ms Jodie McGinnis v BHP Billiton Iron Ore Pty Ltd
[2016] FWC 951
•14 APRIL 2016
| [2016] FWC 951 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Jodie McGinnis
v
BHP Billiton Iron Ore Pty Ltd
(U2015/13982)
DEPUTY PRESIDENT GOSTENCNIK | PERTH, 14 APRIL 2016 |
Application for relief from unfair dismissal; inappropriate conduct in the workplace; whether valid reason for dismissal; whether dismissal disproportionate response to conduct; dismissal not unfair; application for an unfair dismissal remedy dismissed.
[1] Ms Jodie McGinnis (Applicant) commenced employment with BHP Billiton Iron Ore Pty Ltd (Respondent) on 8 September 2010 and was employed as a mine controller. The Applicant was dismissed from her employment with the Respondent on 9 October 2015, effective immediately. 1 On 30 October 2015, the Applicant applied under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy.
[2] Turning first to deal with the initial matters which must be decided before the merits of an application are considered. 2 These matters were not in dispute, and I find that:
- The application was made within the time prescribed in s.394(2) of the Act;
- The Applicant was, at the date of her dismissal, protected from unfair dismissal within the meaning of s.382 of the Act;
- The Respondent was not a small-business employer within the meaning of the Act and so the Small Business Fair Dismissal Code did not apply; and
- The dismissal was not effected for reasons of redundancy, and so it was not a case of genuine redundancy within the meaning of s.389 of the Act.
[3] I have concluded that the Applicant’s dismissal was not unfair. These are my reasons for that conclusion.
Background and factual findings
[4] The Applicant was employed as a mine controller for the Respondent from 8 September 2010 until 9 October 2015. The Applicant’s employment was terminated by the Respondent on 9 October 2015, with immediate effect. 3
[5] The Applicant was advised of the dismissal by letter on 9 October 2015 (Termination Letter). 4 The Termination Letter was handed to the Applicant following a meeting held on 9 October 2015 with Mr Luke Green, Senior Advisor Human Resources and Ms Johanna Cowell, Manager Mine Performance. Although the dismissal was effective immediately, the Termination Letter makes clear that the Applicant would receive four weeks’ pay in lieu of notice, as well as payment for any accrued and unused leave to which she may be entitled.5
[6] The Termination Letter sets out the reason for the dismissal, namely, that the Applicant had failed to conduct herself in a manner that aligned with the BHP Billiton Code of Conduct (inappropriate behaviour), and Charter Values (Respect). 6 The generality of this reason is particularised by reference to an incident that is said to have occurred on 22 July 2015. The Termination Letter refers to the incident and its consequence as follows:
“a) On 22nd July 2015 you engaged in a conversation with a peer regarding a very personal situation that was deemed to be inappropriate in regards to content and that it had taken place in an open work location.
b) This has been deemed a direct breach of your Performance Improvement Plan (PIP), which was implemented as a result of the Final Written Warning. Both documents were issued and signed by you on 04th March 2015.” 7
[7] The conduct said to constitute the reason given to the Applicant by the Respondent for her dismissal is in dispute. In particular, the circumstances and content of a conversation between the Applicant and another employee on 22 July 2015 are hotly contested.
Applicant’s Disciplinary History
[8] The Applicant had previously received two letters from the Respondent both dated 4 March 2015. The first was from Mr Geoff Farmer, Superintendent IROC Mine Control (PIP Letter). 8 The PIP Letter was issued following a disciplinary investigation said to have identified behavioural and conduct issues involving the Applicant. The PIP Letter advised the Applicant that following the disciplinary investigation, a PIP was necessary to assist in the Applicant’s on-going development.9 The PIP Letter noted a number of concerns which had been raised by Supervision and the Applicant’s peers, specifically:
- On the 21st January 2015 you made an inappropriate comment of a sexual nature towards a fellow colleague regarding her husband.
- On the 21st January 2015 you were involved in an incident where you displayed a clear lack of respect towards Supervision. You acted in an intimidating and aggressive manner towards your Supervisor during a meeting that you had requested. You behaviour during this meeting was unacceptable and breached the Code of Business Conduct and Charter Values.
- On 29th January 2015 you were involved in an incident with one of your peers whilst controlling in the MAC Pod which resulted in you requesting a meeting with your Supervisor. It was during this meeting that you stated “I quit and I’m not coming back until you sort this shit out” before leaving shift at 3.30am. Your comment and the behaviour you exhibited was not deemed to be acceptable and was not in line with the Code of Business Conduct or our Charter Values.” 10
[9] The PIP Letter attached a plan setting out performance expectations and measures in order to track the Applicant’s progress and to provide her with an opportunity to improve her performance, conduct and behaviours. 11
[10] The second letter received by the Applicant dated 4 March 2015 (Final Written Warning) also arose as a consequence of the disciplinary investigation. 12 The Final Written Warning was given to the Applicant following two meetings held on 27 January 2015 and 9 February 2015 attended by the Applicant, Mr Geoff Farmer, Mr Simon Spence and Ms Sinead McClintock. The purpose of the meetings was to discuss concerns raised in relation to the Applicant’s conduct and to listen to her responses. The Applicant was given the opportunity to bring a support person to the meetings and both Mr Matthew Steffens and Mr Craig Beverage acted in this capacity for the Applicant.13 The Applicant’s conduct which was said to justify the Final Written Warning was as follows:
- Demonstrated a clear lack of respect towards Supervision by behaving in an argumentative and intimidating manner during a meeting that the Applicant initiated;
- Engaged in unacceptable behaviour by making a derogatory, inappropriate comment toward another employee; and
- Failed to foster a positive and collaborative team environment when conducting her work which resulted in deterioration of some working relationships. 14
[11] The Final Written Warning also summarised the Applicant’s disciplinary history as follows:
- In November 2013, you were issued a Performance Improvement Plan to address areas of concern such as; inappropriate behaviour, lack of accountability, poor productivity, negative communication, failure to meet expectations, failure to follow work instructions and lack of respect.
- In August 2011, you received a Written Warning for inappropriate behaviour towards a fellow employee in the form of a derogatory comment and your conduct was deemed as bullying/harassment.” 15
[12] Prior to 2015, the Applicant appears to have been given a written warning dated 16 August 2011, 16 a letter setting out the outcome of a review of disciplinary action dated 2 January 2012,17 a letter about a PIP, and a PIP, dated 7 November 2013,18 and a letter about the completion of a PIP dated 17 July 2014.19
[13] The fact of the disciplinary history noted above was not seriously contested by the Applicant. Instead, the Applicant sought to explain the conduct and the context of that conduct. 20 Some of the explanations given by the Applicant warrant comment. First the suggestion that it is only inappropriate to engage in a discussion of a sexual nature at work if the discussion was with someone with whom the Applicant does not have a strong friendly relationship,21 completely misunderstands the point of codes of conduct, policies and rules about that which is or is not acceptable conduct at work. Discussions of a sexual nature, excepting the sex industry and perhaps the medical profession, have no place at work. The Applicant cannot judge how other people will react to or be affected by such a discussion. It is for that reason that the best approach is to refrain.
[14] Secondly, the Applicant’s qualified acceptance in her evidence that she was argumentative with a supervisor on 21 January 2015, 22 suggests that the Applicant does not fully appreciate appropriate standards of behaviour in the workplace. Disagreements with colleagues and supervisors can and do occur in workplaces, however that which is commonly required is that those disagreements are expressed in a respectful way.
[15] Moreover, there is no evidence that the Applicant disputed the veracity of the previous warnings through the applicable disputes settlement procedure of the relevant industrial instrument. In the circumstances I am satisfied that the Applicant has a disciplinary history which underscores conduct directed to fellow employees, and to those who supervise the Applicant, that is disrespectful and derogatory.
PIP Plan
[16] I have found the evidence about the PIP meetings unsatisfactory. The Applicant’s evidence was that following the initiation of the PIP in March 2015, she had a few meetings with her PIP supervisor, Mr Simon Spence, before he was transferred elsewhere and that she only had one PIP meeting with her replacement PIP supervisor, Mr Chris Simpson. 23 The Respondent produced records of PIP meetings prepared by Mr Simpson.24 These records disclose that a number of one-on-one discussions occurred between Mr Simpson and the Applicant in June and July 2015. The Applicant maintained that the discussions that were recorded were not PIP discussions, but rather were notes of informal discussions initiated by the Applicant with Mr Simpson about matters that were concerning her.25 Mr Simpson was not called to give evidence and so could not be asked about the circumstances of the meetings and the notes that he prepared of those meetings as reflected in the records. I do not draw any adverse inference from his absence.
[17] However, in reading the PIP records, the notes of the meetings prepared by Mr Simpson do not strike me as conversations about performance improvement. The notes seem to me to be consistent with the Applicant’s evidence that the discussions that she had with Mr Simpson were initiated by her and were about issues that she had at the time of each discussion. There does not seem to me to have been a systematic follow-up with the Applicant, following Mr Spence’s departure, about the PIP or how the Applicant’s performance, in this case measured by her dealings with colleagues and supervisors, is tracking against the Respondent’s expectations. True it is that the PIP was intended to address concerns about the Applicant’s conduct or behaviour towards colleagues and supervisors, however there is an absence of probative evidence which would suggest that her conduct in this regard was being adequately monitored or assessed, or that any meaningful feedback about this aspect of her performance had been given to the Applicant prior to the incident on 22 July 2015.
[18] I accept that the Applicant was looking for formality in feedback and it appears that Mr Simpson used less formal means, namely in discussions initiated by the Applicant, to provide some feedback or guidance, but given the purpose of the PIP, particularly one initiated after the issuing of a final written warning, the formality expected by the Applicant was not in my view an unreasonable expectation. The informality adopted, in my view, falls short of best practice.
[19] That said, I am not convinced that it is necessary to implement a performance improvement plan with the aim of having an employee behave in a way that is respectful of others. Such things should go without saying, but if there were doubt, or uncertainty on the part of the Applicant, the warnings issued should have been clear sign posts to the Applicant that her behaviour or conduct towards some colleagues and supervisors was below par, that it needed to improve and if it did not, consequences, including termination of employment may well follow.
Incident on 22 July 2015
[20] Central to the cases advanced by both the Applicant and Respondent is an incident on 22 July 2015 involving the Applicant and Ms Alesha Brown, who at the time was also a mine controller, employed by the Respondent.
[21] The Applicant gave evidence that she had a strained relationship with Ms Brown. 26 Ms Brown’s description of the relationship was slightly more colourful, describing it as “quite volatile at some points”, as being a “dog eat dog” relationship and definitely not a friendship.27 Although the relationship between the Applicant and Ms Brown was tense and perhaps volatile, it was also capable of civility. The two had, for example, discussed personal matters, including family problems.28
[22] On 22 July 2015, Ms Brown was covering a shift for another employee. This brought the two together in the same work area, also known as the “pod”. 29 The Applicant and Ms Brown had been getting on well during the early part of the shift; they had been chatting and the Applicant contended that she bought Ms Brown a coffee during the Applicant’s morning break.30
[23] At some point after the Applicant’s morning break on 22 July 2015, probably between 10:00am and 11:00am, the Applicant left her work area and walked into the kitchen area to get a coffee from the machine there located. 31 That which occurred thereafter is hotly contested.
[24] Ms Brown’s version of events is that she was in the kitchen area having something to eat and the Applicant was in the vicinity getting a cup of tea. 32 The nature of the beverage being sourced by the Applicant seems also to be in dispute, but is inconsequential. There is dispute as to whether any other employees were present in the kitchen at this time, but nothing material turns on this dispute. It is not in dispute that the kitchen area is in the open, relative to the work areas, and that other employees were in or about the general area. A conversation of sorts appears to have ensued which on Ms Brown’s version of events proceeded as follows:
“Jodie stated to me that she wasn’t sure how to say something, but that she wanted to ask me a very personal question if I didn’t mind. I replied yeah no worries not thinking that what she asked me was anywhere near the question I was anticipating. Firstly she stated that she was concerned because there was a pretty nasty rumour going around the whole of Area C about me and she wanted to see if it was right. Jodie then came straight out and asked me if I had recently had an abortion in the past 3 weeks. My heart started pumping and I became quite anxious, it took me totally by surprise that she would even think that it was ok to me something so direct and in the potential earshot of other people. I quickly said I had no idea what she was talking about, but stated that I would be interested to see where it had come from. She then tried to find out if this was the reason I hadn’t been feeling good and had been a bit down over the past few weeks.
As I was watching her she started to get tears running down her face, and then continued to tell me that she is so emotional about it because I shouldn’t have to go through something as horrible as that on my own, and that even though we have never seen eye to eye all the time that she would have hoped I felt as though I could have gone to her for support and to talk about it. I then said well there’s no need to be upset because its just gossip obviously. Jodie through tears restated that she was so sad that if it was true that she wanted me to know that I could go to her. I was still in shock at this stage because I didn’t know what she was going to do with this so called information about something that was deeply personal.” 33
[25] Ms Brown’s evidence was that the Applicant had suggested that another employee, as in the same employee who had taken Ms Brown to the clinic at which the abortion was performed, was the person telling other employees that Ms Brown had had an abortion. 34 Ms Brown surmised that the Applicant was referring to Ms Gwenda Miles, the employee who had accompanied Ms Brown to her appointment.35
[26] The Applicant’s version of events is that Ms Brown made her way to the communal kitchen area and when she walked into the area, Ms Brown was voicing her dissatisfaction about something using colourful, some might say foul mouthed, language. 36
[27] According to the Applicant, the innocuous conversation that then followed, started because the Applicant had, in response to the colourful description of Ms Brown’s dissatisfaction just articulated, expressed concern for Ms Brown. The Applicant says that she had asked Ms Brown about her welfare in the following terms:
“Are you OK mate? I’ve heard you’ve had a tough time lately”. 37
[28] Ms Brown accepted that the conversation may have begun with the Applicant making the enquiry to which reference has just been made and that it was in response to her colourful articulation of dissatisfaction. 38 That an enquiry of the kind the Applicant says she made was made is also consistent with the evidence of Mr Geoffrey Farmer, a Superintendent IROC Mine Control, employed by the Respondent, about Ms Brown’s report of the conversation made to him shortly after the incident had occurred.39 I therefore accept that the conversation between the Applicant and Ms Brown commenced substantially in the manner described by the Applicant. I also accept Ms Brown’s explanation as to the absence in her statement of any reference to the inquiry made by the Applicant; namely that she was focussed on those parts of the conversation about which she was aggrieved, and not with the conversation starter.40
[29] According to the Applicant the remainder of the conversation was along the following lines:
“I was talking in a normal quiet volume because I was inches away from Alesha. Alesha on the other hand was talking quite loud.
Alesha replied, ‘I’ve heard those rumours too. You have to have sex to get pregnant’ and said it very loudly.
I didn’t say anything back to Alesha.” 41
[30] Ms Brown made a contemporaneous note of the incident soon after it had occurred. 42
[31] Before the note was made, Ms Brown was required to attend a mentoring session with one of the Respondent’s managers, Ms Patsy Mitchell. 43 She was reminded of the need to attend the mentoring session by Mr Farmer,44 who then escorted Ms Brown to the mentoring session.45 On the way, Ms Brown told Mr Farmer about the incident with the Applicant.46 Mr Farmer’s evidence about this conversation was as follows:
“On the way to the mentoring session, Brown told me that McGinnis had approached in the hub area of level 23. This is an open kitchen and sitting area in the middle of the floor. It is open to all employees. There are no walls around the hub and it is also part of the main thoroughfare from the elevators and also to the bathrooms. McGinnis apparently came straight out and asked Brown whether or not she was “ok”. As it was reported to me, Brown then asked McGinnis what she meant by “ok”, to which McGinnis responded the same there were rumours going around that Brown had either had an abortion or terminated her pregnancy. From memory, I think that Brown used the word “abortion”. 47
[32] Mr Farmer’s evidence was that during the course of his discussion with Ms Brown, she came across as very upset and he recalled that she said to him words to the effect: “I can’t believe that she would say that”. 48 Mr Farmer encouraged Ms Brown to discuss the matter with Ms Mitchell during the impending mentoring session.49 Mr Farmer’s evidence was that he believed that Ms Brown raised the incident with Ms Mitchell. Mr Farmer explained that the basis for his belief was that he had had a conversation with Ms Mitchell the following day during which Ms Mitchell expressed disbelief and disgust at what she had been told by Ms Brown.50
[33] Ms Miles is employed by the Respondent in the capacity of the Train Control, IROC. 51 At the time of the incident, Ms Miles was employed as second in charge mine control, IROC.52 Ms Miles gave evidence that on 22 July 2015, she and Ms Brown had a conversation initiated by Ms Brown during which Ms Brown said that the Applicant had approached her at the coffee machine and asked her whether she had had an abortion.53 Ms Miles said that Ms Brown also told her that the Applicant had said that the person who was telling other people in IROC was the person who took Ms Brown to the clinic at which the abortion was apparently performed.54
[34] Resolving conflicts in evidence about a particular conversation is not an easy task. Both the Applicant and Ms Brown were adamant in their versions of the substance of the conversation, however whilst I accept that the conversation is likely to have commenced in the manner described by the Applicant, principally because Mr Farmer’s evidence tends to corroborate that version of events and Ms Brown’s acceptance that she may not have focussed on that part of the conversation, I ultimately prefer Ms Brown’s version of events about the critical elements of the conversation. I have come to this view for the reasons which follow.
[35] First, shortly after the conversation with the Applicant, Ms Brown told Mr Farmer about the conversation. This tends against the suggestion by the Applicant that the conversation was an innocuous one or that no more was said during the conversation than that which the Applicant has alleged.
[36] Secondly, Mr Farmer’s recollection of his conversation with Ms Brown is generally consistent with Ms Brown’s account of the critical parts of her conversation with the Applicant.
[37] Thirdly, Ms Brown made a contemporaneous note of the conversation which is also consistent with her version of events.
[38] Fourthly, Ms Brown appears also to have relayed the conversation that she had with the Applicant to Ms Mitchell, which judging by the evidence of Mr Farmer as to Ms Mitchell’s reaction the following day, appears to be consistent with Ms Brown’s version of events.
[39] Fifthly, Ms Brown communicated the substance of the conversation to Ms Miles shortly after the conversation had taken place. Ms Brown also told Ms Miles that the Applicant was suggesting that Ms Miles had been responsible for telling other employees about Ms Brown’s abortion.
[40] Sixthly, there is the evidence of Mr Farmer as to Ms Brown’s demeanour during the conversation that he had with Ms Brown shortly after the incident, when she communicated to him the substance of her conversation with the Applicant. Mr Farmer’s evidence was that Ms Brown appeared very upset and he recalled that she said to him words to the effect: “I can’t believe that she would say that”.
[41] Seventhly, Ms Brown struck me as a credible witness whilst giving evidence before me. In particular, Ms Brown made, appropriately in my view, concessions during cross-examination which might have been said to be adverse to her interests. 55 Conversely, the Applicant’s evidence, particularly under cross-examination, was sometimes inconsistent.56
[42] Eighthly, there is in my view an inherent unlikelihood of an enquiry from the Applicant to the effect “are you okay? I’ve heard you’ve had a tough time lately” made in response to Ms Brown’s colourful outburst of frustration, eliciting, with no apparent context, a response to the effect that “I’ve heard those rumours too. You have to have sex to get pregnant”.
[43] Finally, in my view it is also inherently unlikely that Ms Brown employed such elaborate means to conjure up a false account of a conversation about what is without doubt a highly personal and sensitive matter; for example, the making of the contemporaneous note, the complaint to Mr Farmer, the appearance of being upset, the reporting of the conversation to Ms Mitchell and the reporting of the conversation to Ms Miles.
[44] In the circumstances, the weight of evidence leads inescapably to the conclusion that Ms Brown’s version of events concerning the critical aspects of the conversation that she had with the Applicant is most likely to be correct, and it is the version that I accept.
[45] During her evidence, the Applicant was asked whether there were any circumstances in which it might be appropriate for someone to ask the questions or to make the statements attributed to the Applicant by Ms Brown. The Applicant’s answer was:
“Never. I don’t think it would ever be appropriate to ask somebody if they had terminated a pregnancy, especially not somebody that you didn’t have an outside of work relationship with.” 57
[46] The Applicant is correct. The comments made by the Applicant to Ms Brown, in an open common area of workplace, during the conversation between them on 22 July 2015, was inappropriate conduct.
[47] It is not in issue that the Respondent has promulgated and maintains a Code of Conduct and a Charter of values which respectively deal with inappropriate behaviour and respect. Doubtless, the Applicant’s conduct is inconsistent with these instruments. But even absent such instruments, common sense and decency dictate that conversations of the kind engaged in by the Applicant have no place in the workplace because they are inappropriate.
Investigation of the incident
[48] Mr Farmer gave evidence that he was given the responsibility of investigating the incident on 22 July 2015 and that during the course of the investigation, he interviewed both the Applicant and Ms Brown. 58
[49] Ms Brown provided a written statement to Mr Farmer on 23 July 2015, shortly following the incident, which was the contemporaneous note to which earlier reference is made. 59
[50] A disciplinary interview was held on 23 September 2015 with the Applicant as part of the investigation. The Applicant was assisted by Ms Sue Pethick as her support person and Mr Farmer and Mr Luke Green, Senior HR Advisor, were both present. 60 During the interview, the Applicant was questioned about the incident on 22 July 2015 and whether she had heard any rumours in relation to Ms Brown. The Applicant denied having made any reference to an abortion or termination of a pregnancy to Ms Brown.61 She admitted having a discussion with Ms Brown but said that all she had done was to enquire as to whether Ms Brown was “ok”.62 Ms Brown’s cotemporaneous note,63 which was accepted as the more accurate version of events during the investigation,64 claimed that the Applicant asked her about the termination of a pregnancy.
[51] Mr Farmer prepared a memorandum following the investigation recommending that disciplinary action be taken against the Applicant and that a meeting should be held with the Applicant during which she should be requested to show cause why her employment with the Respondent should not be terminated. 65
Show cause meeting
[52] A show cause meeting was conducted on 9 October 2015. 66 The Respondent was represented at the meeting by Ms Johanna Cowell, Manager Mine Performance, and Mr Green. The Applicant’s support person at the meeting was Ms Pethick.67
[53] Mr Green’s evidence was that, during the show cause meeting, the Applicant was advised that the outcome of the investigation was that the Respondent preferred Ms Brown’s account of the incident of 22 July 2015 and that it did not accept the Applicant’s denial of the conduct. 68 Mr Green produced interview notes he prepared for use during the show cause meeting, and which according to his evidence, served as a script for the meeting.69 The notes indicate that the Applicant was told that the Respondent was seriously considering terminating her employment and that she was given an opportunity make any comment or provide any reason that she wished to provide or to raise any matter that the Respondent should take into account before making a decision.70
[54] Ultimately, a decision was made to terminate the Applicant’s employment and the Applicant was advised of that decision. 71 The Applicant was also advised of the decision to terminate her employment and the reasons for that decision in the Termination Letter72 handed to the Applicant on 9 October 2015.
Consideration and application of the statutory framework
Protection from Unfair Dismissal
[55] An order for reinstatement or compensation may only be made if I am satisfied the Applicant was, at the date of the dismissal, protected from unfair dismissal under the Act.
[56] Section 382 of the Act sets out the circumstances that must exist for the Applicant to be protected from unfair dismissal as follows:
“382 When a person is protected from unfair dismissal
A person is protected from unfair dismissal at a time if, at that time:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the employment;
(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.”
[57] There is no dispute, and I am satisfied, that the Applicant was, on 9 October 2015, protected from unfair dismissal within the meaning of s.382.
Was the dismissal unfair?
[58] The Applicant’s dismissal will have been unfair if I am satisfied, on the evidence, that all of the circumstances set out in s.385 of the Act existed. Section 385 provides:
“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”
[59] There is no dispute that the Applicant was dismissed at the Respondent’s initiative within the meaning of s.386 of the Act. As I have previously indicated, the Respondent is not a small business employer so the issue of compliance with the Small Business Fair Dismissal Code does not arise, and the dismissal of the Applicant was not a case of genuine redundancy within the meaning of s.389 of the Act.
Harsh, unjust or unreasonable
[60] It remains therefore, for me to consider whether the Applicant’s dismissal was harsh, unjust or unreasonable. The matters that must be taken into account in assessing whether the dismissal was harsh, unjust or unreasonable are set out in s.387 of the Act:
“387 Criteria for considering harshness etc.
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.”
[61] I am obliged to consider each of these matters in reaching my conclusion 73 and I do so below, having regard to the factual findings earlier made and taking into account the helpful submissions filed by the parties.74
[62] The ambit of the words “harsh, unjust or unreasonable” in the context of a dismissal was explained in Byrne & Frew v Australian Airlines Ltd 75 by McHugh and Gummow JJ as follows:
“. . . It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.” 76
[63] Ultimately, however, it is the matters set out in s.387 of the Act to which regard must be had.
Valid reason – s.387(a)
[64] There must have been a valid reason for the dismissal related to the Applicant’s capacity or conduct, although it need not be the reason given to the Applicant at the time of the dismissal. 77 The reason should be “sound, defensible or well-founded”78 and should not be “capricious, fanciful, spiteful or prejudiced”.79 Where conduct of the Applicant is relied upon to justify the decision to terminate employment, I would need to be satisfied that the conduct as alleged, occurred.80 A mere suspicion of conduct does not amount to a valid reason.81
[65] The reason for the Applicant’s dismissal related to her conduct. The letter advising the Applicant of her dismissal set out the reason for dismissal as follows:
“a) On 22nd July 2015 you engaged in a conversation with a peer regarding a very personal situation that was deemed to be inappropriate in regards to content and that it had taken place in an open work location.
b) This has been deemed a direct breach of your Performance Improvement Plan (PIP), which was implemented as a result of the Final Written Warning. Both documents were issued and signed by you on 04th March 2015.” 82
[66] The factual findings earlier made in these reasons, support a conclusion that the Applicant had engaged in the conduct alleged in the Termination Letter. Moreover, viewed from the perspective of the Applicant’s disciplinary history, which concerned her conduct or behaviour towards colleagues and supervisors, the conduct that I have found was engaged in by the Applicant provided a valid reason for her dismissal.
[67] Therefore, in the circumstances I am satisfied that there was a valid reason for the Applicant’s dismissal relating to her conduct.
Notification of the valid reason – s.387(b)
[68] Notification of a valid reason for termination should be given to an employee protected from unfair dismissal before the decision is made, 83 in explicit terms,84 and in plain and clear terms.85 In Crozier v Palazzo Corporation Pty Ltd (t/as Noble Park Storage and Transport),86a Full Bench of the Australian Industrial Relations Commission dealing with a similar provision of the Workplace Relations Act 1996 observed:
“As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170CG(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.” 87
[69] There is no dispute and I am satisfied that the Applicant was notified of the Respondent’s reasons for dismissing her.
Opportunity to respond – s.387(c)
[70] An employee protected from unfair dismissal should be given an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the employee. It seems to me clear on the evidence to which earlier reference has been made, that the Applicant was given an adequate and fair opportunity to respond to the reasons for her dismissal, both during the disciplinary interview on 23 September 2015 and during the show cause meeting on 9 October 2015.
Unreasonable refusal by the employer to allow a support person – s.387(d)
[71] If an employee protected from unfair dismissal has requested that a support person be present to assist in discussions relating to the dismissal, the employer should not unreasonably refuse to allow that person to be present. It is clear from the plain language of s.387(d) of the Act that this consideration is directed to an employer’s unreasonable refusal to allow a support person to be present. It is not concerned with whether an employer offered the employee such an opportunity. In most cases, the section will be engaged if the employee asks for a support person to be present and the employer refuses the request. 88 It may well be appropriate in some cases to consider the overall circumstances in which meetings to discuss an employee’s performance, capacity and conduct or dismissal occurred to properly determine whether there was an unreasonable refusal by the employer to allow the employee to have a support person present.
[72] There is no dispute that the Applicant had a support person with her at each of the two meetings, held on 23 September 2015 and 9 October 2015, to discuss the allegations about her conduct on 22 July 2015 which founded the reason for her dismissal.
Warnings regarding unsatisfactory performance – s.387(e)
[73] If an employee protected from unfair dismissal is dismissed for the reason of unsatisfactory performance, the employer should warn the employee about the unsatisfactory performance before the dismissal. Unsatisfactory performance is more likely to relate to an employee’s capacity than their conduct. 89 For present purposes, the Applicant was dismissed for conduct and not performance, and appears to have received a number of warnings earlier discussed, which on their face also relate to conduct not performance. The Respondent accepts that in the context of this case, this consideration is not relevant.90 I consider the question of the conduct warnings under a separate head below.
Impact of the size of the Respondent on procedures followed – s.387(f)
[74] The Respondent is a large employer. There is no evidence that the Respondent’s size, in and of itself, affected the procedure adopted in effecting the dismissal. In my view, the procedure adopted by the Respondent in the lead up to the dismissal was fair insofar as procedures go. However, as earlier noted, the PIP process so far as it related to follow up meetings and feedback, fell short of best practice.
Absence of dedicated human resources management specialist/expertise on procedures followed – s.387(g)
[75] There was no absence of a dedicated human resources function. It is apparent that human resources management specialists were involved both in the earlier warnings and in the dismissal of the Applicant.
Other relevant matters – s.387(h)
[76] Section 387(h) provides the Commission with broad scope to take into account any other matters it considers relevant. I have also taken into account the following matters:
a) The Applicant’s disciplinary history. It is not insignificant and appears to focus on the Applicant’s interactions with colleagues and supervisors. The conduct for which warnings have been issued was variously inappropriate, disrespectful and derogatory. The Applicant’s conduct founding the valid reason was the very kind of inappropriate conduct which the earlier warnings had counselled her against;
b) The Applicant’s period of service. The period was almost five years. This is not a lengthy period but nor is it insignificant;
c) The Applicant’s work record. There is no suggestion that the Applicant was anything other than good at her job. Her performance was not in issue. It is the Applicant’s conduct that is at the heart of this case;
d) The proportionality of the response (dismissal) to the conduct in which the Applicant engaged. Where this to be an isolated incident, then I would accept the Applicant’s submission that dismissal as a response to the incident on 22 July 2015 was disproportionate. However, the Applicant has a history of warnings about similar inappropriate conduct or communications. The proportionality of the response must therefore be viewed, not in isolation, but against the backdrop of the Applicant’s disciplinary history. When viewed in that light, I do not consider that dismissal for the Applicant’s conduct on 22 July 2015 was disproportionate;
e) The summary nature of the dismissal. Although I have concluded that there was a valid reason, I do not regard the conduct as sufficiently serious as justifying summary dismissal. Had the Respondent not made a payment in lieu of notice, I would likely have concluded that summary dismissal was harsh and that dismissal on notice was more appropriate. However, the payment in lieu of notice has mitigated that which might otherwise have been a harsh dismissal; and
f) The PIP meetings. For the reasons earlier given, the implementation of the PIP by the Respondent fell short of best practice. However, as I have already indicated, this is to be balanced against the warnings earlier given to the Applicant about inappropriate conduct. In the end, it was the Applicant’s conduct which led to her dismissal, having earlier been counselled. I am not persuaded that formal PIP meetings would have prevented the Applicant engaging in the conversation with Ms Brown on 22 July 2015. Nor am I persuaded that inadequacies in the PIP process identified are of such weight or moment as to render the dismissal of the Applicant unfair.
[77] Taking all of these matters into account and for the reasons given in this decision, I have come to the conclusion that the Applicant’s dismissal was not harsh, unjust or unreasonable. Therefore it was not unfair.
Conclusion
[78] The Applicant’s dismissal from employment with the Respondent was not unfair. The application for an unfair dismissal remedy is therefore dismissed. An order to that effect is separately issued in PR579072.
DEPUTY PRESIDENT
Appearances:
Ms E Douglas on behalf of the Applicant.
Mr R Wade Solicitor on behalf of the Respondent.
Hearing details:
2015.
Perth.
February 2.
February 22.
Final written submissions:
Applicant’s Final Submissions, 26 February 2016.
Respondent’s Final Submissions, 2 March 2016.
1 Exhibit 5, Tab 23.
2 Section 396 of the Fair Work Act 2009.
3 Exhibit 5, Tab 23.
4 Ibid.
5 Ibid.
6 Ibid.
7 Ibid.
8 Exhibit 5, Tab 14.
9 Ibid.
10 Ibid.
11 Ibid.
12 Exhibit 5, Tab 17.
13 Ibid.
14 Ibid.
15 Ibid.
16 Exhibit 5, Tab 4.
17 Exhibit 5, Tab 5.
18 Exhibit 5, Tab 6 and 7.
19 Exhibit 5, Tab 8.
20 Exhibit 1 at [29] – [41].
21 Exhibit 1 at [30] –[31].
22 Ibid at [32]-[33].
23 Exhibit 1 at [26] – [28].
24 Exhibit 5, Tab 16.
25 Transcript PN 211–PN217.
26 Transcript PN 46 and 49.
27 Transcript PN 717
28 Transcript PN 747–754.
29 Exhibit 1 at [14].
30 Exhibit 1 at [15]; Transcript PN 755–PN 757.
31 Exhibit 1 at [17].
32 Exhibit 5, Tab 20; Exhibit 6.
33 Exhibit 5, Tab 20; Exhibit 6.
34 Ibid.
35 Ibid.
36 Exhibit 1 at [16].
37 Exhibit 1 at [17].
38 Transcript PN 842–PN 844.
39 Exhibit 2 at [9].
40 Transcript PN 843–PN 844.
41 Exhibit 1 at [18]-[20].
42 Transcript PN 833–PN 836.
43 Exhibit 2 at [8].
44 Exhibit 5, Tab 20; Exhibit 6.
45 Exhibit 5, Tab 20; Exhibit 6; Exhibit 2 at [8] – [9].
46 Ibid.
47 Exhibit 2 at [9].
48 Exhibit 2 at [10].
49 Exhibit 2 at [11].
50 Ibid.
51 Exhibit 4 at [1].
52 Ibid.
53 Transcript PN 545.
54 Ibid.
55 See for example Transcript PN 831–PN 845; PN 848–PN 853.
56 See for example Transcript PN 118 c/f PN 126; Transcript PN 130 c/f PN 137.
57 Transcript PN 93.
58 Exhibit 2.
59 Exhibit 5, Tab 20.
60 Exhibit 5, Tab 19.
61 Exhibit 2 at [15].
62 Ibid.
63 Exhibit 5, Tab 20.
64 Exhibit 2 at [20]; Transcript PN 458–PN 465.
65 Exhibit 2 at [21]; Exhibit 5, Tab 21.
66 Exhibit 3 at [3].
67 Ibid.
68 Exhibit 3 at [7] – [8].
69 Exhibit 3 at [5]; Exhibit 5, Tab 22.
70 Exhibit 5, Tab 22,
71 Exhibit 3 at [13],
72 Exhibit 5, Tab 23.
73 Sayer v Melsteel Pty Ltd[2011] FWAFB 7498 at [14].
74 Applicant’s Outline of Submissions, 11 January 2016, Applicant’s Final Submissions, 26 February 2016; Respondent’s Outline of Submissions, 29 January 2016; Respondent’s supplementary Outline of Submissions, 19 February 2016 and Respondent’s Final Submissions, 2 March 2016.
75 (1995) 185 CLR 410.
76 Ibid at 465.
77 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377–378.
78 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.
79 Ibid.
80 King v Freshmore (Vic) Pty Ltd, Full Bench AIRC, 17 March 2000, (Print S4213) at [23]–[26].
81 Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1.
82 Exhibit 5, Tab 23.
83 Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41].
84 Crozier v Palazzo Corporation Pty Ltd (t/as Noble Park Storage and Transport) (2000) 98 IR 137 at 150–151.
85 Previsic v Australian Quarantine Inspection Services Print Q3730.
86 (2000) 98 IR 137.
87 Ibid at 151.
88 See also Fair Work Bill 2008 – Explanatory Memorandum at [1542].
89 Annetta v Ansett Australia (2000) 98 IR 233 at 237.
90 Respondent’s Outline of Submissions at [24].
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