Ms Krystil Ryan v Orbitz Elevators Pty Ltd T/A Orbitz Elevators
[2019] FWC 8445
•16 DECEMBER 2019
| [2019] FWC 8445 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Krystil Ryan
v
Orbitz Elevators Pty Ltd T/A Orbitz Elevators
(U2019/6412)
COMMISSIONER SIMPSON | BRISBANE, 16 DECEMBER 2019 |
Application for unfair dismissal remedy – Employee engaged as a Financial Controller - Employment contract provides for annualised salary of $114,975 inclusive of reasonable additional hours – Employee engaged on 34 hour week –– Contract provides annualised salary compensates for any periodic rate of pay, overtime – Payroll function central to employees role – Employee paid themselves additional amounts for hours above 34 per week – Allegation of misconduct – Investigation – Valid reason for dismissal - Termination not unfair.
[1] On 12 June 2019, Ms Krystil Ryan (the Applicant) made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for unfair dismissal remedy against Orbitz Elevators Pty Ltd T/A Orbitz Elevators (Respondent). Ms Ryan did not seek reinstatement and instead sought financial compensation.
[2] The Respondent was not a small business employer within the meaning of s.23 of the FW Act at the relevant time having approximately 75 direct employees at the time of termination. 1
[3] Ms Ryan was employed by the Respondent as a Financial Controller and commenced her employment with Orbitz Elevators on 10 January 2018 and was dismissed on 10 June 2019. Upon employment, Ms Ryan agreed to and signed an employment contract which stated that she was to be employed in a part-time capacity and negotiated an annualised salary of $114,974 inclusive of superannuation, working a 34 hour week with reasonable additional hours compensated for in the annual salary.
[4] At the arbitration hearing on 18 November 2019, Ms Ryan was self-represented, and the Respondent was represented by Mr Timothy Dive, an employee of the Respondent.
[5] Ms Ryan gave evidence on her own behalf and also relied on the evidence of Ms Sue Ferguson, a former work colleague, and Mr Geoff Gatehouse, also a former work colleague.
[6] The Respondent relied on the evidence of four witnesses, Mr Timothy Dive, Mr Stephen Burns, Mr Garry Holden, and Mr Jonathan Dwayre.
[7] Ms Ryan submitted that there was no valid reason for the dismissal related to her capacity or conduct because she believed she recorded and documented all details regarding her pay in the company’s records, and never falsely represented her hours or payment for them. Ms Ryan argued that despite the Respondent having full access to these records she never received notification that her hours or pay was incorrect or not in accordance with her employment contract.
[8] The Respondent submitted that there was a valid reason for the dismissal related to Ms Ryan’s capacity or conduct because her conduct was intentional and in breach of the employment contract.
[9] I have set out some of the correspondence exchanged between the parties prior to the termination in some detail below as it provides a useful summary of the issues.
[10] On 28 May 2019, Mr Burns, the Chief Financial Officer of the Respondent, sent correspondence to Ms Ryan advising her that she was to be stood down on paid suspension. The correspondence included the following:
“RE: Notification of instruction to stand down (paid suspension)
Dear Krystil,
Further to our discussion held at approximately 4.30pm on Tuesday 28 May 2019 between you, Tim Dive (Head of People, Culture & Compliance) and myself, I write to confirm the Company’s decision to investigate anomalies discovered in your management and administration of your personal payroll.
We will now commence an investigation into the anomalies that you were made aware of today. Specifically, this includes:
Consistent and continuous unauthorised payments of non-approved additional hours over and above your contracted salary of $110,000;
The potential breach of contract relevant to any conduct that may have occurred in the administration of your personal payroll activity; and
Any other relevant matters related to anomalies in financial management that may be uncovered during this investigation.
You are instructed to remain away from the Orbitz Elevators office and to not make any attempts to access Orbitz Elevators financial management systems, tools or financial accounts.
You are instructed not to talk to any other employees about the matters under investigation, to fully enable Orbitz Elevators to effectively investigate all related matters.
Given your position in the Company, qualifications, and the level of trust placed upon your position, a possible outcome of this investigation may be the termination of your employment.
You will be notified as soon as practicable of a meeting which you will be required to attend to provide response to any allegations related to this investigation. Tim Dive, Head of People, Culture & Compliance will contact you via email to make arrangements and provide further correspondence.
If you have any questions, please contact me at ……………
Yours sincerely
Stephen Burns
CFO”
[11] Ms Ryan was later sent correspondence from Mr Dive dated 31 May 2019 that included the following:
“Krystil,
RE: Request to appear to respond to formal allegations.
We refer to our recent communications, meetings and correspondence in relation to matters regarding your personal payroll.
We request that you attend Orbitz Elevators on Monday 3 June 2019 at 12:00pm to meet with Mr Stephen Burns and Mr Tim Dive to provide your response/s to allegations detailed below. You are entitled to be accompanied by a support person, who can act in the capacity of a personal support person to you, only.
1. A meeting was convened on Tuesday 28 May 2019 at approximately 4:30pm between yourself, Mr Stephen Burns (CFO) and Mr Tim Dive (Head of People, Culture & Compliance), for the purposes of querying what appeared to be anomalies in payroll data.
2. You are the Financial Controller for Orbitz Elevators and one of your key responsibilities is to manage the execution of payroll payments for the Company.
3. You were advised by Mr Burns that your personal payroll Year-to-Date record seemed high in relation to your contracted salary amount.
4. Your immediate response was an admission that you have been paying yourself additional hours over and above your agreed, contracted salary, and that Mr Garry Holden (Finance Manager) was also doing the same.
5. When questioned by Mr Burns in relation to the fact that your employment agreement is that of a salaried staff member, you confirmed that even though that was the case, you decided to continuously and regularly self-authorise, and set up for payment additional hours of pay.
6. By completing the process required to make these payments, you have manipulated your salary pay template, unauthorised, each pay cycle in the Company’s accounting software, Xero, to enable the payment of additional money to yourself over and above your contracted salary.
7. Mr Dive confirmed with you that you did read your employment contract (the Contract) prior to signing it. You confirmed “yes”. Mr Dive confirmed that you understand the Contract, you confirmed “yes”.
8. Mr Dive referred to the “Salary” clause in the Contract and stated that your Salary of $110,000 per annum is all inclusive of all hours worked. You denied the contract stated this. For your own information the clauses from the Contract are included below:
a. “Any element of the Employee’s remuneration paid to the Employee in any period, which is in excess of the minimum ordinary rate payable under a pay scale in an industrial instrument or applicable legislation, for that pay period, may be set-off by the Company against any amount payable to the Employee in relation to any overtime, weekend work, shift work or paid leave that would be otherwise payable to the Employee under any Award, other industrial instrument, or other law.”
b. “Compensation for all legal entitlements: Except as specifically provided for under this contract, the Employees’ annual salary compensates the Employee for any legal entitlement arising under an award, agreement or any other law or legal instrument, such as, but not limited to, any periodic rate of pay, overtime payments, weekend and holiday penalties, shift allowance, vehicle allowance, travelling expenses, penalty payments and annual leave loading. As such any salary that the Employee receives that is greater than the entitlement the Employee would receive under NES, any applicable award, agreement or any other law or legal instruments satisfies any other legal entitlements where the employee receives less than the minimum amount under that law or legal instrument.”
9. You were instructed by Mr Dive that an investigation will need to take place into this matter, and you were instructed to exit the Orbitz Elevators office and remain on paid suspension to enable the Company to investigate all matters thoroughly.
10. You were instructed to not discuss with any employee, anything related to the matters being investigated. You breached this instruction immediately when you approached Mr. Holden and demanded that he spend five (5) minutes with you before you left the building.
11. You have breached instructions not to discuss matters under investigation with employees on at least two (2) occasions on Tuesday 28 May 2019 and Wednesday 29 May 2019, and we have received copies of text messages that you have sent to Mr Holden and Mr Jon Dwayne (Managing Director). You have also contacted at least one (1) other employee and questioned payroll matters.
12. The Company has investigated the management of payroll. On Thursday 30 May 2019, an independent third party has completed an audit of payroll and other relevant data and has presented their findings.
13. Our findings resulting from the investigation are noted following:
i. We allege that you have wilfully and intentionally acted in manner that breached the conditions of your employment agreement, resulting in your personal financial gain.
ii. We allege that you have defrauded the Company, to the value of at least $13,800.00 by claiming paid hours outside the scope of your contracted salary.
iii. We allege that you have breached the conditions of the Company’s Employee Code of Conduct and Ethics, Clauses 1.2, 2.4, 2.6, 2.7, 2.9, 3.2 and 5.1.
a. We refer to the Signature page if the document (signed by you), “any breach of this Code of Conduct and Ethics will be considered grounds for appropriate disciplinary action and may result in the termination of employment and, in some circumstances, legal prosecution.”
In view of these matters and in recognising your correspondence to the Company earlier today, Friday 31 May 2019, your ongoing employment with Orbitz Elevators is at risk of termination without notice for serious misconduct.
To reiterate, by way of an independent investigation, the Company has discovered overpayments to you of $13,800.00.
In consideration of all matters, the Company may report this matter to the Police, and we reserve our right to pursue the matter and all monies owing to the Company by you, via the appropriate tribunals and available avenues, including reporting the matter to relevant statutory bodies where the Company deems this appropriate.
The Company may also be obliged by statute or otherwise to report this matter to interested industry member bodies that you may hold membership to, where holding membership is subject to a professional history in full compliance of managing Company funds, lawfully.
We advise that you are to continue to remain away from the workplace on paid suspension until this matter is finalised, except for meetings that have been arranged between you and the Company in relation to this or other matters.
……….”
[12] Ms Ryan provided a written response to the Respondent dated 3 June 2019 that included the following:
“Dear Tim,
In response to your letter of Friday 31 May, 2019, I absolutely refute the allegations made therein and disagree with your account entirely. I have consistently acted in good faith under the full supervision of Jon Dwayer and Garry Holden during the entire duration of my employment with Orbitz Elevators based on the employment agreement made between us.
The allegation that I have engaged in serious misconduct is baseless and malicious. I have paid myself and other staff members in accordance with my understanding as to their entitlements at law or under the terms of their employment. I have paid hours performed in excess of my contractually agreed hours of 34 per week as a Permanent Part time employee. My employment is not subject to an Award but stipulates the agreed number of weekly hours is 34 per week. I did not agree to work more than 34 hours each and every week without pay. My payment of actual hours worked has been appropriately documented in the company systems each and every week. Every payment made to my bank account was authorised by the Managing Director and completely accounted for in the payroll systems. I have not deceived anyone nor attempted to claim anything I was not contractually entitled to. I have at no stage received notification or direction that payment of actual hours worked was incorrect or not in accordance with the terms and conditions of my employment that you now assert – after 18 months of regularly and systematically carrying out this process as my role and duties require. I have acted in an honest and transparent manner and your allegations that I have acted dishonestly and/or fraudulently are offensive and defamatory.
During the six month period in which you have been engaged as “Head of Human Resources” it is my understanding that fourteen (14) staff members have been terminated or left as a result of disputed allegations relating to the performance of their duties. The allegations you seek to rely upon to facilitate the termination of my employment are vehemently denied and represent an unjust and unwarranted attack on my reputation and career.
I was interviewed for the role of Financial Controller at Orbitz Elevators in December 2017 at the offices of KPMG Accountants in Bundall by Garry Holden, Finance Manager at Orbitz Elevators.
I was asked to attend a second interview with Garry and Jon Dwayre, Director at the offices of Orbitz Elevators a few days afterwards. During this meeting we discussed my experience and the current circumstances at Orbitz as well as my salary expectations. I informed them that although I received a much higher salary ($150,000) at my last full-time position I would be happy to accept $120,000 for less hours and because the position was based on the Gold Coast.
After this interview I was contacted by Garry Holden and told that they would like to offer me the position. Garry said to me that he did not want to insult me but that they only wanted to pay $105,000 with a further $5,000 after a successful 6-month probationary period. As I was keen to work with them, I said that I could accept that based on a 4-day week. Garry advised that they needed it to be 4 and a half days until all the accounting issues they had were sorted out but after that I could potentially work 4 days per week in the future. I agreed and a commencement date of 10th January, 2018 was arranged.
On my first day I was asked to go to the meeting room for induction which simply involved going through a full folder of policies that I was required to read and sign as well as a generic letter of appointment which all office staff received whether salaried or employed under an award. I pointed out that there was an error in the letter regarding the hours we agreed and it was changed to the agreed 34 hours per week. At no time was it put to me that I would have to work more hours than the agreed 34 each week and not receive payment. Had this been the case I would strongly suggest that I would not have agreed to the terms of employment or would have insisted that the employment contract record the hours I was expected to work each week and the amount of remuneration I would accept in relation to the adjustment of hours.
At the commencement of my employment I raised issues in relation to clauses in the standard employment agreement provided to all staff regardless of their position, classification or Award coverage as not being compliant with the NES. In particular, it became apparent as I was doing the payroll that the office staff were being paid 40 hours normal time per week whilst field staff were being paid 38 hours per week plus overtime and allowances. I suggested that this could be resolved by either paying the office staff overtime or allowing them to accrue time off in lieu. It was agreed that they would accrue time off in lieu moving forward but accept the circumstances as they were for all past payments.
I was directed to attend work at 8.00am along with my colleagues. I entered my arrival and departure times in the company’s systems as required and directed as did my colleagues. I paid my self for actual hours worked as I did for all staff not receiving TOIL under the Award agreement. My salary was for 34 hours and any hours worked over this was simply overtime I was entitled to be paid for at the flat hourly rate my annual salary provided for based on a 34 hour week.
Garry Holden was also paid for the exact number of hours he worked as a permanent part time employee. As we both worked less than 38 hours per week, we were both classified as part-time and received pro rata entitlements based on a 34 hour week.
I note that you have referred to the generic letter of appointment provided to every employee at Orbitz. You state that the employer is entitled to request reasonable additional hours of overtime and that these hours are included in the salary amount. I would expect that this reasonable overtime refers to overtime requested occasionally or intermittently and in line with the varying operational needs of the company. I do not accept that this provision entitles the employer to completely disregard the weekly hours negotiated and agreed to by the respective parties by unilaterally adding every week an unpaid number of hours to the employee’s terms of employment.
It is not reasonable to expect that additional hours be worked on a consistent weekly basis for free. It was always my complete understanding that the salary I had accepted was for 34 hours only. Thus, as Garry and I were both part time employees I entered our rates as hourly in the payroll system and simply paid the hours that we each worked. I have at no stage received notification that this was not what the company expected or intended and performed this act under the direct supervision of the Managing Director and ultimately our external accountants and consultants. This issue has never previously been raised and to now assert that I have acted dishonestly is reprehensible.
After preparing the payroll each fortnight I was often asked to send Jon the payroll details report which listed the calculations for everyone’s pay so that he could check it before authorising and releasing the payroll from the bank. I adhered to every direction and request made by Jon in relation to the production of records relating to the payroll activities undertaken relating to myself and all staff. I have provided information and explanation as to these records whenever required or requested. These records have been provided to our external accountants and have at all times been available to the Managing Director for review. I never had authority to authorise payments as this was done by the Managing Director based on his access to records as well as various documents or reports he asked me to prepare in relation to the payroll access.
This process changed over time and sometimes he just wanted to see the spreadsheet with the hours for the field staff. Regardless, each pay run always had a full listing of the amount that each staff member was to receive. Jon also had full access to all areas of the accounting program to review all transactions. It should be obvious therefore that with this level of scrutiny, if I really believed I was not entitled to be paid for the hours that I worked it would be foolish to pay myself in excess. I note that since Stephen Burns commenced with the company, he has also had full access to all accounting records.
Thus, I believe that I have acted consistently and in good faith during my employment and I find it absolutely disgraceful that you would suggest that I have breached the conditions of my employment, and defrauded the company funds which I am entitled to receive for my hours of work. Further, that suggest that you intend to contact my professional associations with the obvious intention of destroying my career and ability to work as a professional is nothing more than a malicious attempt at bullying.
I note from the clauses that you mentioned in your letter that no distinction is made between those staff who are employed under an award or industrial agreement and in fact the entire letter is quite ambiguous and not in compliance with relevant laws. I reiterate, I was employed under a part time arrangement with payment of $110,000 per annum being in exchange for 34 hours of work per week. If Jon or Garry was not happy with the payment of additional hours, they should have raised this matter much earlier and re-negotiated the agreement. However, this was not the case as Jon, continued to allow the release of payment based on the hours calculated in the payroll system.
In closing, it is apparent to me that with the termination of approximately 14 people over the last few months, your treatment of me is just another opportunity to remove another staff member who does not agree with your methods. You have basically gone on a witch hunt to have me removed and your treatment of me has been absolutely appalling. These are very serious allegations you are making against me which you are aware have the potential to prevent me from earning income in my profession ever again. You have also demanded a response on short notice since I only received your emails and letters on Friday after close of business and thus was left with no time to seek legal advice, especially under the circumstances of my illness which you have exacerbated. You are in a position of higher power in this situation which you are obviously using to your advantage.
I shall await your determination.
Yours faithfully,
Krystil Ryan.”
EVIDENCE AND SUBMISSIONS
Employment Contract
[13] Ms Ryan said that on her first day of employment she was asked to go to the training room for an induction which was conducted by Mr Holden. Ms Ryan said upon reviewing her employment contract she raised the issue that her employment contract stated that the normal working hours would be 36, and that this was in excess of what had been agreed during an earlier telephone conversation. Ms Ryan said she expressed concern that she had already agreed to a lower salary and this would potentially further erode her earnings. Ms Ryan said Mr Holden apologised and told her to change it to 34 per week. 2
[14] Ms Ryan said that Mr Holden never proposed that she should work any additional hours and not be paid for them and said that he just worked whatever hours were needed as he was paid an hourly rate. He said that it was a standard employment letter given to everyone. 3
[15] Whilst giving evidence Ms Ryan was presented with a copy of her employment contract that was signed by herself and by Mr Dwayre on behalf of the Respondent. The contract included the amendments to the commencement date, the minimum hours of work from 36 hrs to 34 hrs per week, and the salary from $105,000 to $114,975 inclusive of 9.5% superannuation.
[16] The employment contract included the following language under a heading of ‘Hours of Work’, and a subheading ‘Reasonable additional hours (overtime) to be worked’:
“The Company may require the Employee to work reasonable additional hours that have been compensated for in the Employee’s annual salary.
The Employee may refuse to work additional hours if to work those hours would be unreasonable. In determining whether additional hours are reasonable or unreasonable the following must be taken into account:
(i) Any risk to Employee’s health and safety from working the additional hours.
(ii) The Employee’s personal circumstances, including any family responsibilities.
(iii) The needs of the workplace/project, site or enterprise. Such needs include, but are not limited to, unforeseeable delays in the programme; work that is critical in ensuring site access; housing activities, and maintenance.
(iv) The notice (if any) given by the Company of the requirement to work overtime and the notice by the Employee to the Company of their intention to refuse it.
(v) The usual patterns of work in the industry in which the Employee works.
(vi) Whether any of the additional hours are on a public holiday.
(vii) The nature of the Employee’s role, and the Employee’s level of responsibility.
(viii) Whether the additional hours are in accordance with an averaging arrangement in this agreement.
(ix) Any other relevant matter.”
[17] Ms Ryan was asked why she did not raise an issue about the terms of the contract that she signed given her claimed view on her entitlement was to be paid for hours over 34 per week. Ms Ryan responded that she was not wanting to seem antagonistic on her first day of work, which was consistent with what she had previously said in her witness statement.
[18] Ms Ryan stated in reference to other parts of the contract that even though it says that it includes compensation for annual leave loading there is another section under benefits that says leave loading was payable. Ms Ryan also said that the contract was a standard contract given to everybody and they all contain these similar clauses, and there are parts of the contract where it contradicts itself.
[19] It was put to Ms Ryan that she had made amendments to other clauses. Ms Ryan said that was the key one that she thought was really important because they had specifically agreed. It was put to Ms Ryan that she signed the rest of the agreement without amending anything else and was asked if it would be right to deduce that where there were clauses in the contract that she agreed to with an initial, that other clauses were accepted. Ms Ryan responded that you could deduce that, but that she had already explained her position on that.
[20] Ms Ryan said in her witness statement that had she been directed at any time to stop working more than 34 hours per week and receiving payment for the ordinary hours she worked she would have complied. 4 Ms Ryan said she was only ever paid for the hours that she worked, so she didn’t consider that was an over payment at all because she actually worked those hours.
[21] Ms Ryan said in her statement that she was often asked to complete certain tasks which were urgent, and she always complied meaning she often worked more hours than the agreed 34 hours. Ms Ryan said that provided she was paid for the hours she did not object. 5
[22] Mr Holden held the position of National Finance Manager at the Respondent, and his role included the management of Ms Ryan as her direct manager. 6 Mr Holden said one of the main functions of Ms Ryan’s role was to manage and lead payroll operations in the Respondent. Mr Holden gave evidence that across his time managing Ms Ryan, he cannot recall requesting Ms Ryan to perform additional hours or overtime in any frequent manner.7 He said that he did not recall ever speaking with Ms Ryan about her recorded hours of work as he was never in receipt of her recorded hours for approval purposes.
[23] Ms Ryan was asked about this during her own evidence. Ms Ryan said Mr Holden asked her to do certain tasks that were important. It was put to Ms Ryan that she was not asked to work longer hours. Ms Ryan said that Mr Holden did not specifically say stay longer, but he asked her to complete other tasks.
[24] Mr Holden said in his evidence that he recalled that Ms Ryan was on a number of occasions late to work, and he didn’t recall Ms Ryan staying late to make up the hours to a point where she could have performed additional hours as frequently as she has reported. Mr Holden said that as far as he recalled, while he did not keep track of Ms Ryan’s daily hours, Ms Ryan left the office between 4:30pm and 4:45pm each day apart from Fridays, when she left at 12pm. 8 Ms Ryan said that Mr Holden wasn’t at work on Fridays so he wouldn’t be aware of when she left.
[25] Ms Ryan put to Mr Holden that on the day of her commencement at Orbitz she pointed out an error that had been made in her contract in relation to the start date and the number of hours she was to work in exchange for the annual salary amount. Ms Ryan asked Mr Holden was it not clear to him then that she expected to be paid the agreed salary for the agreed number of hours. Mr Holden replied no. Ms Ryan asked Mr Holden if that wasn’t clear to him, then why did he direct her to change and initial thirty-six to thirty-four. Mr Holden said he didn’t direct Ms Ryan to change anything, and he said the agreed hours as part of the employment was thirty-four hours per week as part of a salaried position.
[26] Ms Ryan asked Mr Holden if he recalled asking her to complete certain tasks that were important for the company’s operations. Mr Holden replied yes, within normal business.
[27] Mr Geoff Gatehouse provided a witness statement 9 and gave evidence in support of Ms Ryan. Mr Gatehouse was formerly the National Operations Manager for the Respondent before resigning from employment with the Respondent in March 2019.
[28] Mr Gatehouse accepted during his evidence that his understanding of Ms Ryan’s employment contract was based on hearsay. I have not found his evidence to be of assistance in determining the central matters in dispute. Ms Ferguson also provided a witness statement 10 and gave evidence in support of Ms Ryan. Ms Ferguson was formerly employed as an Administrative Assistant by the Respondent before resigning from her employment. For similar reasons to those concerning Mr Gatehouse’s evidence, I have not found the evidence of Ms Ferguson to be of any probative value in determining the issues in dispute in this matter.
[29] Mr Dwayre, the Managing Director and Founder of the Respondent gave evidence that he approved the recruitment of Ms Ryan and the expectation was always that having negotiated an annualised salary, that should it be required Ms Ryan would be flexible in performing hours of work as reflected in the contract and the amount of salary paid. 11
[30] Mr Dwayre gave evidence that Ms Ryan never requested additional money for any hours worked over her agreed part time hours, nor did he understand there were any approved additional hours that Ms Ryan would have received additional payment for.
[31] Ms Ryan asked Mr Dwayre if he expected the additional hours to be worked for free each week, and if so how many free hours of work did he expect her to provide each week? Mr Dwayre replied not free hours of work, its more salary to get the job done, and every manager is in that same position.
[32] In the course of her evidence Ms Ryan suggested she was not a salaried employee but was paid an hourly rate of pay.
[33] The evidence is clear that Ms Ryan entered a contract of employment with the Respondent that she was to be paid an annual salary which was inclusive of reasonable additional hours. The facts of the case do not provide any support for the notion that Ms Ryan was entitled to payments in addition to her annualised salary. There was no legal basis for Ms Ryan to have claimed the additional payments as she did.
[34] Given Ms Ryan’s experience and professional qualifications it would have been reasonable to expect that Ms Ryan would have understood the contract she signed.
Ms Ryan’s role, Level of Supervision and authorisation of payments by Managing Director
[35] Ms Ryan said in her statement that Mr Dwayre was fully aware of what everyone was being paid, and Mr Dwayre was the only person authorised to release payments. Ms Ryan claimed Mr Dwayre reviewed the timesheets and payroll, and this system continued after the introduction of electronic timesheets as the organisation grew. Ms Ryan said Mr Dwayre never questioned the hours she was paid. 12
[36] Mr Dive said in his statement that he reviewed all emails sent by Ms Ryan to Mr Dwayre related to Payroll and found only on 7 occasions in 18 months did Ms Ryan email Mr Dwayre information that contained details on her individual pay. He said Ms Ryan usually only emailed payroll reports for Mr Dwayre’s approval that contained Field Staff only, not all staff.
[37] Mr Dive put to Ms Ryan during her oral evidence that it would be impossible for a person to direct you to stop paying yourself additional remuneration if nobody had any knowledge it was occurring. Ms Ryan disputed the premise of the question.
[38] Ms Ryan agreed that she was the submitter and the approver for T-sheets, the time recording system that she used to pay herself payroll.
[39] The Respondent put to Ms Ryan that Ms Ryan’s specific payroll data was almost non-existent across their period of her employment of 18 months in reference to a bundle of documents concerning payroll data admitted into evidence. 13 Ms Ryan’s response was that there were specifically seven or eight occasions when extra detail was provided, and on every single occasion that payroll was released, Mr Dwayre had the full listing of every person who was being paid and how much.
[40] Mr Dwayre said that it was always his expectation that the people placed in senior positions in the business were employed to be specialists and advisors to him, rather than supervised by him. He said Ms Ryan was appointed to provide specialist advice on all financial management matters, and a major part of her role was to manage the payroll function for all employees in the business. 14
[41] Mr Dwayre said that he relied on Ms Ryan to ensure the accuracy of payroll and time recordings across the entire business and provide him with accurate financial and payroll records so he could approve the release of payments. He said Ms Ryan was the trusted leader and expert in the field within the business. 15
[42] Mr Dwayre said that Ms Ryan executed this task via a time recording system (T-Sheets) and payroll management system (Xero). He said that Ms Ryan provided payroll data to him semi-regularly, and most payroll data provided to him by Ms Ryan contained hours accrued in the pay period for field-based staff only.
[43] Ms Ryan said that was not entirely true, and prior to the implementation of T-sheets the Respondent used spreadsheets, and it was a job of some of the supervisors to gather paper time sheets and enter that information into the spreadsheet to summarise it and give totals of double time, annual leave etc. Ms Ryan said after those supervisors had entered the information, the spreadsheet was passed to her and it was also passed to Mr Dwayre, and he reviewed it and questioned anything that he didn’t agree with.
[44] Ms Ryan claimed that Mr Dwayre always had full access to all systems as Managing Director, and he was at liberty to delve into any information that he wished to at any time.
[45] Mr Dwayre said in his evidence 16 that he was not aware that Ms Ryan established herself as the “Approver” for her own time recording in T-sheets. He said it is his recollection and understanding that Ms Ryan’s salary was fixed and as such not subject to variation by weekly time recordings.
[46] In regard to Mr Dwayre’s evidence that he relied upon Ms Ryan to ensure the accuracy of payroll and time recordings across the entire business and provide him with accurate financial and payroll records to approve the release of payments, Ms Ryan asked Mr Dwayre why then did he insist that the recorded hours were checked by the Operations Manager and Construction Manager, and then also sent to himself, before she used them to prepare the payroll and the accounting progress. Mr Dwayre said he wanted to double check the processes actually worked, and finding anomalies in the field staff as well. He said it was all about the field staff, with travel and that there was a lot of confusion around that.
[47] Mr Dwayre said very, very rarely did he look at salaried staff if at any time, and he wasn’t looking at the salaries, and he was concentrating on the field staff. Ms Ryan asked Mr Dwayre if he had the opportunity to look at salaried staff. Mr Dwayre agreed he had the opportunity but said that he would not have had the time, because it was all in the last minute, paid within the last 24 hours.
[48] Ms Ryan asked Mr Dwayre if he had unlimited access to the accounting program, and therefore the ability to check any accounting records that he might want to check. Mr Dwayre responded that he had authorisation for anything in the business obviously, because he is the owner, however indicated he didn’t have the time to do that and that is why he hired good people around him and placed trust in them for their roles.
[49] Ms Ryan asked Mr Dwayre who else did he expect to be the approver, if he believed that Ms Ryan was the person who was expected to ensure the accuracy of all payroll and time recordings. Mr Dwayre said the approver in his understanding was the managers.
[50] Ms Ryan said there were a number of people that had the authority to be “Approvers”, but obviously anyone that was not involved in the finance area would not be approving her particular hours, and someone had to approve the hours for it to be synced with Xero.
[51] Ms Ryan’s evidence was that she didn’t establish the system in the first place and she had a processor who actually established the payroll system using spreadsheets, and the way that part-time people were paid was already established by that person.
[52] Ms Ryan submitted that as evidenced by the copies of the emails, with spreadsheets and payroll details that were attached to them, it is clear that Mr Dwayre did have access to this information.
[53] Ms Ryan explained the T Sheets system and said staff members clock in and clock out of work and so those hours are recorded by the system, and after those hours are entered someone can go through and approve those hours and if they have any questions about those hours they can go though and deal with that.
[54] Ms Ryan accepted that she approved her own hours in the payroll system. Ms Ryan was asked if it would be sound practice to have somebody submitting their own hours that they will receive payment for approving those same hours and then processing them and giving them to the Managing Director to release for payments. Ms Ryan said the system was set up in conjunction with other people.
[55] The Respondent produced a document said to be a list of the emails from Ms Ryan to other persons at the Respondent concerning payroll. 17 It was said by the Respondent that only about five reports over the course of Ms Ryan’s employment showed her exact hours worked.
[56] It was put to Ms Ryan that she relied on this information to submit Mr Dwayre understood what was being put before him however he didn’t even understand the time sheets.
Ms Ryan responded that she won’t say he didn’t understand, but he didn’t want to be involved in using T-sheets, however he always had full access to financial information with regards to who is being paid what.
[57] Mr Dive put to Ms Ryan of all the emails that had been sent by Ms Ryan to Mr Dwayre only approximately seven or eight sent to Mr Dwayre had any information regarding Ms Ryan’s accruals, or hours work. Ms Ryan continued to maintain Mr Dwayre had access to the individual amounts being paid to each person.
[58] It was put to Ms Ryan that Mr Dwayre trusted her to manage and maintain the system.
Ms Ryan agreed with that but said there were several occasions where her hours were obvious and he had them in front of him.
[59] The evidence indicates that there were thirty-nine pay cycles in the 18 months of Ms Ryan’s employment, and of the reports sent by Ms Ryan to Mr Dwayre, thirty-one contained no specific data of Ms Ryan’s payroll data.
[60] It is clear from the evidence that contrary to the claim of Ms Ryan, Mr Dwayre was not supervising, reviewing or authorising the payments she was making to herself when she sent payroll records to him. It was apparent his primary focus in looking at payroll records as Managing Director was on the Field Staff because of their variable entitlements including travel compared to salaried staff.
[61] It is also apparent, even if he was minded to review the payments Ms Ryan was making to herself which from the evidence he wasn’t, he was operating on the basis that he was trusting Ms Ryan as the Financial Controller to manage and maintain her own payments being on an annualised salary. In any event, Ms Ryan was not giving Mr Dwayre sufficient information to be able to discern whether Ms Ryan was paying herself in accordance with her salary, particularly given his admitted limitations in understanding the system.
Mr Holden’s pay arrangements
[62] Ms Ryan claimed Mr Holden was also paid for the exact number of hours he worked as a permanent part time employee and as they both worked less than 38 hours per week, they were both classified as part-time and received pro rata entitlements based on a 34 hour week.
[63] Mr Dive said that he decided that given Ms Ryan made allegations concerning Mr Holden he would be subject to the investigation process and it would be inappropriate for Ms Ryan and Mr Holden to discuss the particulars of the matters under investigation. 18
[64] Ms Ryan challenged Mr Burns during his evidence concerning the treatment of Mr Holden as compared to herself. Mr Burns said that Mr Holden didn’t approve his own payments and there is a contractual difference between Ms Ryan’s salaried contract and Mr Holden’s employment contract.
[65] Ms Ryan asked Mr Holden during his evidence if he received payment for all the hours that he recorded in times sheet or t-sheets. Mr Holden said no. Mr Holden disagreed with Ms Ryan’s statement that he was paid for all the hours he recorded in the system.
[66] Mr Dive said that he investigated Mr Holden’s terms of employment and discussed his personal arrangement with Mr Dwayre. Mr Dive said Mr Dwayre and Mr Holden did have an agreement that Mr Holden would not be required to commit to working fulltime hours and would be paid for all hours worked. Mr Dive said Mr Holden was never presented with a written contract of employment as such, and Mr Dive said he had to rely on the verbal contract of Mr Holden and Mr Dwayre. Mr Dive said that he found that Mr Holden’s agreement with the Respondent was different to the contractual arrangements agreed to by Ms Ryan, and Mr Dwayre confirmed Mr Holden’s conditions were agreed to be paid for all hours worked. 19
[67] The evidence of Mr Holden, Mr Dwayre and Mr Dive indicated that Mr Holden was engaged on a basis that he was paid for the hours he worked. Ms Ryan tried to draw an analogy between Mr Holden’s arrangements and her own however the evidence supports the conclusion that the employment arrangement made between Mr Holden and Mr Dwayre was an oral agreement that Mr Holden would be paid hourly and was quite different to Mr Ryan’s written contract with an annualised salary.
[68] Mr Holden gave some evidence about his reasons for wanting an arrangement like this because his hours of work fluctuated and could be project based. I am satisfied Mr Holden was paid for hours worked as he had a different arrangement to that of Ms Ryan. Although it is not entirely clear, it appears that Mr Holden never disclosed to Ms Ryan that nature of his oral contract with the Respondent as agreed with Mr Dwayre. Ms Ryan gave some evidence about a discussion with Mr Holden on her first day of employment when she raised the amendments to her contract but this evidence does not support a conclusion that that there was any agreed variation to the relevant parts of her contract clearly setting out that her salary was inclusive of additional hours.
Manner of Investigation
[69] Ms Ryan said that at 4.30pm on 28 May she was in the process of preparing payroll and she was asked to attend a meeting with Mr Burns and Mr Dive. Ms Ryan said that she was told by Mr Burns it was not a disciplinary meeting, but he wanted Ms Ryan to explain something that he did not understand. Ms Ryan said when she was asked why her year to date earnings seemed high she replied that she usually worked more than the 34 hours per week as originally agreed.
[70] Ms Ryan said Mr Dive said this was not acceptable and asked her if she had read her employment contract. Ms Ryan said she replied that she had read it on her first day and there were anomalies in it. Ms Ryan said that Mr Dive then began to aggressively interrogate her and said she was being overpaid. Ms Ryan said Mr Dive advised an investigation would be launched and that she was being placed on paid suspension. 20
[71] Mr Dive, who held the position of Head of People, Culture & Compliance at the Respondent, said he had worked in Human Resources since 2017 and holds qualifications in Human Resource Management. 21
[72] Mr Dive said that at 1pm on 28 May 2019, Mr Stephen Burns, the CFO, approached him about anomalies in the Respondent’s year to date earnings report with regard to Ms Ryan’s earnings. Mr Dive said he asked Mr Burns to meet with Ms Ryan to ask her about the anomaly. 22
[73] Mr Dive said a meeting was held at 4.00pm in the Respondent’s Boardroom attended by Ms Ryan, Mr Burns and Mr Dive where Ms Ryan was asked about the matter.Mr Dive said that Ms Ryan explained said “Yes, I pay myself for the actual hours that I work”. 23 Mr Dive said that Ms Ryan claimed Mr Holden was doing the same. Mr Dive said Ms Ryan was advised she would be stood down in order to investigate the matter and the claims concerning Mr Holden.24
[74] Mr Dive said Ms Ryan was instructed to leave immediately and await further advice about how the investigation would proceed, and not to touch anything on her computer, not to email anybody, access documents or systems, not to make contact with staff members about the matter, and to gather her things and go.
[75] Ms Ryan said Mr Dive followed her to her office where she had been in the middle of processing the payroll and sending an email to the Business Administration Manager. Ms Ryan said she proceeded to complete and send the email but was stopped by Mr Dive who told her to shut the computer down and leave.
[76] Mr Dive gave evidencethat a couple of minutes after the meeting he walked to Ms Ryan’s office and witnessed her typing an email and he said he instructed her to stop immediately and he said Ms Ryan than proceeded to shut down spreadsheets and web pages and he again told Ms Ryan to stop, which he said Ms Ryan did and proceeded to leave.
[77] Ms Ryan said that Mr Dive followed her out of her office when she stopped to asked Mr Holden if she could have a word with him as she thought he could solve the matter since he was the person directly involved in her recruitment. Ms Ryan said Mr Dive stopped her and said she could not speak to Mr Holden and to leave.
[78] Mr Dive’s evidence was that he followed Ms Ryan and Ms Ryan stopped at an office where Mr Holden was in attendance and Ms Ryan asked Mr Holden to speak to her for 5 minutes. Mr Dive said that he instructed Ms Ryan that this was not appropriate and asked her to move on, and Ms Ryan then made two additional and aggressive demands for Mr Holden to come outside and speak with her for 5 minutes. Mr Dive said he made a hand signal for Mr Holden to stop him walking towards Ms Ryan and told Ms Ryan to stop disturbing these people and move on. 25
[79] Ms Ryan said that when she left she tried to call Mr Holden and the message went through to message bank. Ms Ryan said Mr Holden returned her call later and told her Mr Dive said they were investigating payroll anomalies and to stay out of it. Ms Ryan said she also called Mr Dwayre and Mr Dwayre said Mr Dive and Mr Burns were investigating the matter. Ms Ryan said she sent a further email to Mr Dwayre reiterating what she had previously said and did not get a response.
[80] Mr Dive said that on that afternoon and evening Ms Ryan continued to contact Mr Holden and Mr Dwayre via phone call and text message specifically related to the matters to be investigated. Mr Dive said that he discussed next steps with Mr Burns and it was agreed that an external review of the anomalies would be required and Mr Burns organised that it be conducted by KPMG which occurred on 30 May 2019.
[81] Mr Burns said that subsequent to Ms Ryan leaving the premises, and after further discussion with Mr Dive, he tasked KPMG to undertake a high level review of payroll data in relation to Ms Ryan to either confirm or dispute his initial calculations. The review was extended to additional staff either named by Ms Ryan or referred to by Ms Ryan in communications. This task was completed and the total figure of over payments to Ms Ryan was determined by KPMG to be approx. $13,000.
[82] Ms Ryan said she received two separate emails from Mr Dive on 31 May. Ms Ryan said in her witness statement 26 that the second email stated that a formal investigation had been undertaken by a third party and they would notify her of the next steps in the process by close of business. Ms Ryan said that she was also instructed to have no further communication with Mr Holden or Mr Dwayre. Ms Ryan said she found this to be very unfair as they were the only two people who were directly involved in her recruitment and employment arrangements and to be prevented from communicating with them meant they could not assist in resolving the matter.
[83] Mr Dive said that he sent correspondence to Ms Ryan on 31 May 2019 advising that the matter was being investigated and reminding her that she was instructed not to discuss the matters under investigation with staff members. Mr Dive said Ms Ryan responded on the same day advising that she did not recognise Mr Dive’s authority with respect to the matter. Mr Dive said soon after Mr Burns showed him the KPMG report confirming the anomalies and a gross overpayment of $13,800 received by Ms Ryan since she commenced her role. 27
[84] Mr Dive said Ms Ryan was then sent a detailed letter at 5.31pm on 31 May (set out above) advising of initial findings and requesting Ms Ryan provide a response to the findings alleged to date, and that there was a risk of her employment being terminated. The letter invited Ms Ryan to respond by either attending a meeting with a support person at 12:00pm on 3 June or should Ms Ryan refuse the meeting to provide a response in writing.
[85] Mr Dive said that Ms Ryan did not attend the meeting and provided a written response (as set out above). Ms Ryan said that on 3 June despite being quite unwell with high blood pressure due to stress caused by the Respondent’s unwarranted attack she responded by email and letter in which she further explained what she had already outlined on 28 May. Ms Ryan said she felt her response would have little bearing on the determination as the Respondent had already made it and were simply following a process to support it. 28
[86] Mr Dive’s evidence was to the effect that on reviewing Ms Ryan’s response on 3 June and further investigations into those responses he made a decision that, given the evidence and consistent defiance of any wrongdoing from Ms Ryan, it was unlikely the Respondent could trust Ms Ryan moving forward. Mr Dive said he provided a comprehensive response of some 7 pages to Ms Ryan on 5 June which addressed each of the points raised by Ms Ryan.
[87] Ms Ryan said that on 5 June 2019 she sent a letter of demand for payment of unpaid wages and did not receive a response. Mr Dive said he held further discussions with Mr Burns and Mr Dwayre advising the Respondent should move forward with a show cause, and on 6 June the show cause letter was sent to Ms Ryan.
[88] Ms Ryan said on 6 June she received a letter to request that she show cause in which the Respondent repeated the allegations they had already made and outlined determinations they had already made and about her involvement in the investigation in which it was stated that she had interfered with the fair process by trying to communicate with Mr Holden and Mr Dwayre. Ms Ryan said the letter requested that she attend another meeting on 10 June 2019 at 10am or otherwise respond in writing by the same date.
[89] Ms Ryan said although she felt it was pointless as the Respondent had already determined the matter, she responded again in a further attempt to clarify the points she had already raised. Ms Ryan said she subsequently received a phone call from Mr Burns asking for a discussion to settle the matter but Ms Ryan said this was unsuccessful. Mr Dive said that on 10 June at 10.05am Ms Ryan responded to the show cause letter in writing but provided no new relevant information. Mr Dive said he had a discussion with Mr Dwayre and Mr Burns to provide all information and gather their perspectives on whether to move to termination.
[90] Mr Dive said in his statement that he reviewed and considered the following: 29
“
a. The payroll anomalies were explained by Ms Ryan herself as caused by her practice of recording and approving hours that may or may not have been worked;
b. The payroll anomalies appeared to indicate that Ms Ryan received a significant amount of money she was not entitled to;
c. If these hours were indeed worked, the employment terms and conditions in Ms Ryan’s employment contract, declared her understanding and acceptance that her salary was paid in full satisfaction of all additional hours worked;
d. Ms Ryan herself, emailed explanations and requests to all staff in the company detailing her understanding of salaried staff payments, which contradicted the manner of how she treated her own wages;
e. No manager or person Ms Ryan was reporting to in the company received Ms Ryan’s actual time recordings, or had the opportunity to understand the regular and frequent additional hours being claimed by Ms Ryan;
f. Ms Ryan, when faced with the evidence, consistently and vehemently denied any error or misinterpretation made on her behalf, making it very difficult to find common ground and a reasonable pathway to protect her employment post – investigation;
g. Ms Ryan was provided with ample opportunities to correspond, participate in discussions via face to face meetings, explain her side, provide alternative perspectives prior to any determinations on her employment being made by the Company;
h. Ms Ryan gave no indication that her practice of recording additional hours and receiving payment for them would cease, should she remain employed. Her defiance clearly indicated she believed she was entitled to money she was not lawfully entitled to;
i. Ms Ryan’s statements that Mr Dwayre approved her hours and payroll each pay cycle was not true, and Ms Ryan’s continued reliance on that claim demonstrated her unreliability;
j. I did consider the Company’s processes seemed lacking, given this practice of Ms Ryan was performed every pay cycle since she commenced in the role, however, I also considered that Ms Ryan was employed to manage and execute the company’s payroll function and lead the development of effective payroll management practices – and in my view, was rightfully relied upon by the Managing Director, given Ms Ryan’s experience and qualifications;
k. It appeared Ms Ryan witnessing Mr Holden’s agreed terms of employment, simply disregarded her own terms of employment and mirrored Mr Holden’s more favourable terms for her own, even though Mr Holden’s terms were individually negotiated with Mr Dwayre, and Ms Ryan never had any such agreements or discussions with Mr Dwayre;
l. After considering all the evidence it appeared plausible that Ms Ryan had established a procedure that enabled her to systematically receive more money than she was entitled to via her payroll management practices. I considered any outcome where Ms Ryan remained employed would be particularly high-risk, given Ms Ryan was trusted in the position of Financial Controller to ensure this practice was not occurring anywhere in the business.”
[91] Mr Dive said he advised Mr Dwayre and Mr Burns to terminate Ms Ryan and that her conduct amounted to serious misconduct. Mr Dive said his advice was accepted and he issued the notice of termination due to serious misconduct.
[92] Ms Ryan said on 13 June 2019 she received a letter notifying her of the termination of her employment on 10 June 2019.
[93] Ms Ryan accepted during her evidence that she was advised in a meeting with representatives of the Respondent that an investigation would need to take place to understand the relevant facts of the situation whatever they may be, and that it was reasonable to conduct an investigation process to understand the facts.
[94] Ms Ryan said in reference to the KPMG Payroll Analysis document 30 that she never received a copy of this until Mr Dive provided his response to her application, and that she never had an opportunity to look at the report during the investigation.
Closing Submissions
[95] Ms Ryan submitted that she didn’t believe the dismissal process was conducted fairly, the meeting on the 28th of May was conducted with two managers Mr Dive and Mr Burns and she did not have a support person. Ms Ryan said that in this meeting she was accused of paying herself more hours and subsequent correspondence was merely a repeat of the accusation made against her.
[96] Ms Ryan submitted that her responses to the allegations were not properly addressed, considered or refuted and her responses to their questioning have been misrepresented. Ms Ryan said she recorded and documented all details regarding her pay in the company’s records and she had never falsely represented her hours or payment for them. Despite the Respondent having full access Ms Ryan said she had never received notification that her hours or pay were incorrect or not in accordance with the agreement. Mr Ryan said she was not given any opportunity for an alternative arrangement and was a single woman of 55 years of age with reduced prospects for employment.
[97] Mr Dive submitted for the Respondent that Ms Ryan’s conduct was intentional and in breach of her contract. It was submitted Ms Ryan did not seek to amend the clause in the contract that she argues with now. Mr Dive submitted that termination was the only outcome, given the type of role held by Ms Ryan and misconduct that occurred.
Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct?
[98] In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded” 31 and should not be “capricious, fanciful, spiteful or prejudiced.”32 However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.33
[99] Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination.34 “The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.” 35
[100] I have found that Ms Ryan’s employment contract was clear that her annualised salary included compensation for additional hours worked. There is simply no reasonable basis for Ms Ryan to have formed the view that she was entitled to pay herself additional amounts to that described in her contract of employment. Despite that I am not inclined to accept that Ms Ryan was engaged in deliberate deception. Having listened to her evidence I am inclined to accept that at least Ms Ryan believed she was entitled to be paid the additional amounts. What is most concerning about that is the fact that a person of Ms Ryans considerable experience and professional qualifications could have arrived at that view given the evidence.
[101] What’s more, despite having been confronted with facts that pointed to the practice she had adopted as being clearly inappropriate, Ms Ryan refused to concede that there was anything inappropriate about what she had been doing.
[102] I do not intend to deal with each of the matters that Mr Dive set out in his witness statement at paragraph 35 as the reasons he gave for making the recommendation to Mr Dwayre and Mr Burns that Ms Ryan that was accepted, for the termination of Ms Ryan.
[103] I am satisfied on the basis of the evidence of the following;
• Ms Ryan through her role as Financial Controller arranged to make payments to herself in the amount of $13,800 over a period of 18 months that she was not entitled to under her contract;
• Throughout the investigation Ms Ryan did not, and still does not accept that there was anything wrong with what she had done;
• Mr Dwayre as Managing Director was not in the practice of supervising, reviewing or authorising the payments Ms Ryan made to herself as claimed and Ms Ryan’s view that he was did not provide her with a reasonable basis to believe the payments were approved,
• The failure on the part of Mr Dwayre or anyone else within the Respondent’s business to detect at an earlier stage that Ms Ryan had been making additional payments to herself was also not a reasonable basis for Ms Ryan to believe the payments were approved;
• Mr Dwayre was entitled to rely upon Ms Ryan given the seniority of her role as Financial Controller, and her previous experience and qualifications that Ms Ryan would have been paying herself in accordance with her employment contract, and if she believed she was entitled to be paid more than her contract stipulated as she appears to have done, Ms Ryan should have raised the issue squarely rather than unilaterally decided to make the payments to herself.
[104] Having regard to the matters I have referred to above, I find that there was a valid reason for the dismissal related to the Applicant’s conduct and in the circumstances the conduct was sufficiently serious to warrant summary dismissal.
Was the Applicant notified of the valid reason?
[105] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment, 36 and in explicit37 and plain and clear terms.38
[106] Having regard to the evidence set out above, I find that the Applicant was notified of the reason for her dismissal prior to the decision to dismiss being made, and in explicit, plain and clear terms.
Was the Applicant given an opportunity to respond to any valid reason related to their capacity or conduct?
[107] In her own evidence Ms Ryan was asked this question directly and accepted that she was given the opportunity to respond. The evidence established that Ms Ryan was given three opportunities to respond to the allegations, firstly at the meeting on 28 May 2019, again in her written response of 3 June 2019 to the Respondents letter of 31 May 2019 and again in her response of 10 June to the show cause letter of 6 June.
[108] In all the circumstances, I find that Ms. Ryan was given an opportunity to respond to the reason for her dismissal prior to the decision to dismiss being made.
Did the Respondent unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal?
[109] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present.
[110] There is no positive obligation on an employer to offer an employee the opportunity to have a support person:
“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.”39
[111] Ms Ryan submitted that she had not been informed by the Respondent that she could have a support person present under s.387(d) of the FW Act. However, as noted by the Full Bench of the Fair Work Commission, “[t]he subsection is not concerned with whether or not the employee was informed that he or she could have a support person present, though that matter may be relevant and taken into account under s.387(h).”40
[112] The Respondent submitted that it did not unreasonably refuse to allow Ms Ryan to have a support person present to assist at discussions relating to the dismissal on the basis that she did not request one.
[113] In response to a question from myself as to whether Ms Ryan asked for a support person
Ms Ryan responded that she didn’t ask for one.
[114] In all the circumstances, I find that the Respondent did not unreasonably refuse to allow Ms Ryan to have a support person present at discussions relating to the dismissal.
Was the Applicant warned about unsatisfactory performance before the dismissal?
[115] As the dismissal did not relate to unsatisfactory performance, this factor is not relevant to the present circumstances. Both parties agreed this is not applicable in their submissions.
To what degree would the size of the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal?
[116] The Respondent has in the order of 75 employees. Neither party submitted that the size of the Respondent’s enterprise was likely to impact on the procedures followed in effecting the dismissal and I find that the size of the Respondent’s enterprise had no such impact.
To what degree would the absence of dedicated human resource management specialists or expertise in the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal?
[117] The Respondent has a Head of People and Culture in Mr Dive with considerable experience in Human Resource management. I find that the Respondent’s enterprise did not lack dedicated human resource management specialists and expertise.
What other matters are relevant?
[118] Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant.
[119] Ms Ryan has submitted that she is a single woman of 55 years and will have difficulty gaining other employment. Ms Ryan has considerable professional qualifications in her area of expertise. Ms Ryan gave evidence that she had obtained casual work from 14 August through to 21 October with varying hours with total gross pay of $10,286.25 in this period.
[120] Ms Ryan further submitted that as a registered tax agent she has operated a sideline business for the last four years which revolves around tax time, doing tax return for individuals which paid around $3,000 (after termination).Ms Ryan submitted that this income would have been earned regardless of her termination as she did this every year.
Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust or unreasonable?
[121] I have made findings in relation to each matter specified in section 387 as relevant. I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable. 41
[122] Having considered each of the matters specified in section 387 of the FW Act, I am satisfied that the dismissal of the Applicant was not harsh, unjust or unreasonable because the Respondent had a valid reason for dismissal and my findings in regard to the other matters contemplated in section 387 to do not lead to a conclusion that the dismissal was harsh, unjust or unreasonable.
[123] I have taken into account Ms Ryan’s submissions concerning the dismissals consequences for her, however whilst the termination has had harsh consequences I do not regard the termination itself as harsh for that reason given all of the facts.
Conclusion
[124] Not being satisfied that the dismissal was harsh, unjust or unreasonable, I am not satisfied that the Applicant was unfairly dismissed within the meaning of section 385 of the FW Act. The Applicant’s application is therefore dismissed.
COMMISSIONER
Appearances:
Ms K Ryan on her own behalf
Mr T Dive on behalf of the Respondent
Hearing details:
2019
18 November
Brisbane
Printed by authority of the Commonwealth Government Printer
<PR715259>
1 Exhibit 13 para 3
2 Exhibit 1 para 3(a)
3 Exhibit q para 3(c)
4 Exhibit 1 para 10
5 Exhibit 1 para 5(a)
6 Exhibit 14 para 3
7 Exhibit 14 para 6
8 Exhibit 14 para 9
9 Exhibit 11
10 Exhibit 12
11 Exhibit 13 para 6
12 Exhibit 1 para 6(a) – (d)
13 Exhibit 4
14 Exhibit 13 para 8-9
15 Exhibit 13 para 10
16 Exhibit 13 para 17
17 Exhibit 5
18 Exhibit 16 para 20
19 Exhibit 16 para 27(g)
20 Exhibit 1 para 9(a)
21 Exhibit 16 para 2
22 Exhibit 16 para 7
23 Exhibit 16 para 10
24 Exhibit 16 para 13
25 Exhibit 16 para 18
26 Exhibit 1
27 Exhibit 16 para 23
28 Exhibit 1 para 9(i)
29 Exhibit 16 para 35(a) – (l)
30 Exhibit 9
31 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373
32 Ibid
33 Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681, 685
34 Edwards v Justice Giudice [1999] FCA 1836, [7]
35 King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24]
36 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151
37 Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998)
38 Ibid
39 Explanatory Memorandum, Fair Work Bill 2008 (Cth), [1542]
40 Jurisic v ABB Australia Pty Ltd[2014] FWCFB 5835, [84]
41 ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]–[7]
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