Ms Kylie Richardson v Ace Gutters Pty Ltd T/A Ace Gutters

[2013] FWC 8178

[2013] FWC 8178

FAIR WORK COMMISSION

REASONS FOR DECISION

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

Ms Kylie Richardson
v
Ace Gutters Pty Ltd T/A Ace Gutters
(U2013/10025)

COMMISSIONER WILSON MELBOURNE, 21 OCTOBER 2013

Application for relief from unfair dismissal.

[1] The following are my edited reasons for decision, originally given in transcript at Melbourne on 11 October 2013.

[2] Ms Kylie Richardson has made a complaint to the Fair Work Commission (the Commission) that her dismissal from employment with Ace Gutters Pty Ltd (the Company) is, in all the circumstances, harsh, unjust or unreasonable within the meaning of the Fair Work Act 2009 (the Act). Her ongoing employment with Ace Gutters Pty Ltd commenced on 28 June 2010, when she was employed as a sales clerk. Prior to that time she had worked for some months as a casual through a temp agency. At the time she was dismissed on 25 May 2013, the position she held with the company was Sales-Admin Clerk/Acting Plumbing Supervisor. Ms Richardson's dismissal took effect on the same day that she was notified of her dismissal.

[3] The Applicant argues that she was dismissed unfairly because she had not been warned of the consequences of accepting a discontinued item back into stock, which is the immediate issue that led to her dismissal, and because, connected with her employment circumstances, she had made a complaint to her employer in February 2013 about bullying by a co-worker.

[4] The Company argues that Ms Richardson's dismissal was not unfair and that there was a valid reason for her dismissal, being her unsatisfactory work performance, into which category combines the issue of accepting for return a discontinued stock item, together with an already unsatisfactory employment history, which included several warnings.

[5] In the proceedings on 11 October 2013, evidence was taken from Mr Samild, the Victorian Branch Manager, and Ms Richardson, the Applicant. I have considered this evidence, together with the material provided by Ms Richardson in her application and subsequent submissions, and then, similarly, the material provided by the Company in its formal response and outline of submissions filed with these proceedings.

[6] The evidence shows that the Company is a medium size business based in New South Wales, with a total employment base of around 160 employees, 18 of whom work in the Company's Melbourne branch at Braeside. 1 The Company sells guttering and other metal products to the trade and retail customers and it manufactures to a limited extent at its Braeside premises.

[7] The role of the Applicant, at least in respect of her sales clerk duties, is set out in the job description contained in the employer's submissions. 2 The job description sets out numerous clerical functions and activities that appear to be associated with the functions of receiving sales orders from customers, processing the orders so the product is picked and then invoiced, and ensuring stock is controlled.

[8] The applicant is employed under an enterprise agreement applying to the Company, being the Ace Gutters Pty Ltd Enterprise Agreement 2011 (the Agreement) that was approved by the Commission in 2011, with a publication code of AE885049.

[9] The evidence discloses that the Company had some problems with Ms Richardson's employment from at least mid 2012, and in particular in relation to time keeping. On 4 May 2012, Mr Samild counselled Ms Richardson about continued late starts, and that was characterised as a level one warning. 3 The warning was based on concerns that the Company had at that time concerning the Applicant's attendance record.

[10] In October 2012 a further warning was issued, and that was characterised as a level two warning. 4 On 13 March 2013 a further warning was issued to Ms Richardson by the Company, and that was characterised as a level three formal written warning.5 The context of those warnings is set out within clause 27 of the Agreement, entitled "Warning Procedure".

[11] Following those warnings, the Company had further concerns about Ms Richardson's attendance, and those were set out in an email from Ms Dean to Mr Samild dated 10 April 2013. There was subsequently a file note which was provided by Mr Samild to Ms Richardson on 10 April 2013. 6

[12] Mr Samild's evidence is that he felt some pressure from the Company to do something following the third warning, and that led to a counselling session. 7 The Respondent was concerned that there had been a repetition of events even after the warning.8

[13] In February 2013, Ms Richardson made a complaint about being bullied at work, the details of which are set out in correspondence, firstly, from Ms Richardson to the Company and then, secondly, from the Company to Ms Richardson. 9 The evidence regarding that complaint is that she initiated the complaint by giving it in written form to Mr Toranto, the Operations Manager, who passed it to Mr Samild and Ms Dean, the HR Manager.

[14] Mr Samild responded by convening a meeting with Mr Toranto, Ms Winchester and Ms Richardson. The consequence of that meeting is written up in two file notes dated 11 February 2013. 10 In particular, the second of those file notes indicates an agreement reached between Ms Richardson and Ms Stacey Dorbolo on the basis that Ms Richardson did not wish to speak to Ms Dorbolo unless it was work related and, if it was work related, then it had to be done in a professional manner and that that should be reciprocated. Both people indicated that they were prepared to abide by that request. Mr Samild's evidence is that he believed the matter had been resolved as a result of the reaching of that agreement.

[15] In May 2013, Ms Richardson credited the return of some product from a customer. Essentially, the evidence regarding that is agreed between the parties. Ms Richardson gave a credit to a customer for the return of steel product of a deleted colour. The value of that product was approximately $1154. It was, however, in a category of no returns, and the category was expressed in the Company's price book. It was discussed in a toolbox meeting at which both Mr Samild and the Applicant participated and it was also referred to in an email from Mr Samild to all staff on 13 May 2013.

[16] In that email Mr Samild writes to all staff:

“As discussed previously, all deleted colours will/are to be treated as special cuts for all gutter and fascia orders (so no returns as per the special cut protocols)”.

[17] The email continues and makes it clear that only Mr Toranto and Mr Samild would be able to make alterations or exceptions to that decision.

[18] There were signs placed in the workplace, and in particular around EFTPOS machines, indicating that returns should not be accepted, and a black and white copy of those signs is shown in exhibit R4 and in the Employer's Response in a colour version.

[19] The incorrect return of the product was realised by the Company on or around Friday, 24 May 2013, and Mr Samild gave evidence that he received a phone call regarding the matter when he was interstate from Mr Toranto and Ms Winchester. Ms Richardson says that she forgot the Company's policy about not returning the product.

[20] Once the Company understood that there was a problem, it initiated a meeting with Ms Richardson, which took place on Tuesday, 28 May 2013. It was not able to take place earlier than that because, first of all, on the preceding Friday Mr Samild was interstate and, secondly, on the preceding Monday Ms Richardson was not at work. The meeting that did take place on Tuesday 28 May included Mr Samild and Ms Richardson, and also Mr Toranto and Ms Winchester.

[21] The evidence of Mr Samild is that, prior to the meeting with Ms Richardson, he asked Mr Toranto and Ms Winchester whether they had authorised a credit or return, and they had not. As a result of that, he requested to meet with Ms Richardson, which subsequently did occur, in which Mr Toranto, Ms Winchester, Ms Richardson and Mr Samild were in attendance.

[22] Mr Samild's evidence is that he spoke to the Applicant about what had occurred. He put to her that a mistake had occurred and he asked for an explanation. When he was not satisfied with the explanation, he said to the Applicant that, because of her overall performance, she would be dismissed. In particular, the evidence that he gave was to the effect that Ms Richardson's overall performance had not been going in a positive direction and that that led to her dismissal.

[23] Ms Richardson in her evidence is not as clear about the use of the words "overall performance". She cannot recall hearing the words but it is possible that they may have been used. Ms Richardson in her evidence, though, is quite clear that she says that she had made a mistake; that she had forgotten the Company's policy about not returning the product.

[24] The Act sets out who is a person protected from unfair dismissal in section 382. The evidence discloses that Ms Richardson is such a person. Having been continuously employed in a fulltime position since June 2010, Ms Richardson was employed for longer than the minimum employment period, which in her case would be six months. Her employment is covered by an enterprise agreement, to which I have referred, and her income is lower than the high-income threshold.

[25] In that regard, I note Ms Richardson’s employment separation certificate, 11 part of which includes a calculation of two weeks' payment in lieu of notice, which is for a gross amount of $1847.98 (implying an annual salary of approximately $48,048).

[26] Section 385 of the Act deals with what is an unfair dismissal. It is common ground, and I find, that Ms Richardson has been dismissed. The exemptions that might otherwise arise because of the dismissal being consistent with the Small Business Code or a case of genuine redundancy do not arise on the facts of this matter. First of all, the Respondent is not a small business. The evidence is that it has approximately 160 employees and, secondly, the Company does not argue that there is a redundancy in play.

[27] As a result, my consideration must turn to whether the dismissal was harsh, unjust or unreasonable. That term is separately dealt with in section 387 of the Act, which sets out a number of criteria to which I must have regard in making a decision. The first criteria to which I must have regard is whether or not there is a valid reason for the dismissal related to the person's capacity or conduct. In considering this, the Commission will look to whether the reason put forward by the employer was sound, defensible or well-founded.

[28] The reason advanced by the Company is unsatisfactory performance and, in particular, that Ms Richardson's overall performance had not been going in a positive direction, which was part of Mr Samild's evidence. Mr Samild also submitted that Ms Richardson had been dismissed for overall performance. Mr Samild's evidence is that he used the phrase "dismissed because of your overall performance", or words to that effect, when he was dismissing Ms Richardson, and I am satisfied that he used that term.

[29] In this regard the Company relies on two heads of reasoning and argues that the whole of the circumstances of Ms Richardson's employment should be considered by me. Firstly and most significantly, it refers to the return of the discontinued product. Secondly, it refers to Ms Richardson's employment record and the numerous warnings she had received, the direct subject matter of which is her time keeping and attendance record. On the other hand, Ms Richardson contends that the return of the discontinued product was a mistake and that it was not connected to the reasons why she had been warned about her work performance.

[30] I am satisfied from the evidence of Mr Samild that the procedures that the Company put in place regarding the non returnable status of the deleted colours were appropriate and would have been reasonably known to any of the employees involved in selling or returning products. I am satisfied that the instruction not to return the product was known to Ms Richardson.

[31] Her evidence is that the customer was on the phone about the subject for quite a while and that the customer gave her a spiel about the matter. Her evidence was also that it did not cross her mind that the colour had been discontinued. While she may have forgotten the instruction in the particular instance, there does not appear to be reasons which might explain why she forgot, such as being pressured in having to handle several things at once.

[32] As a result, I am satisfied the Company could regard her error as attributable to her overall performance and, in particular, that it came about through an inattention to detail or a disregard of what was important to the employer.

[33] In relation to the warnings about time keeping, I am satisfied they can be reasonably taken into account by the Company in deciding what it should do about Ms Richardson. They were proximate to the decision to dismiss, the most recent of which was in written form in March and followed up verbally in April, and they were about repeated behaviour. I accept it was appropriate for the Company to take into account the whole of the circumstances of Ms Richardson's employment in its decision to dismiss.

[34] The remaining criteria within section 387 of the Act deal with issues other than the validity of the reason to dismiss, and I turn to consider each of those criteria as well. The second of the criteria was whether the person was notified of that reason. I consider that Ms Richardson was so notified, although she was not fully aware of what was said to her within the meeting. That is not unusual, in my view, given the seriousness of the meeting and what was being put to her. It is not uncommon for people in her situation not to fully recollect or to understand what might be said to them, but on the basis of what was given in evidence by Mr Samild, correlated with what was said in her evidence by Ms Richardson, I am satisfied that the Company did so notify what its reason for termination might be.

[35] The next of the criteria refers to whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person. In this regard, I consider that Ms Richardson's opportunity to respond was limited. She was expected to respond on the spot, and what she did say was possibly not put as strongly as might otherwise be the case if she had had a representative available for her or time to consider what she might say.

[36] The next of the criteria relates to any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal. While there is no evidence that Ms Richardson was offered an opportunity to have a support person present, there is also no evidence that she requested to have a support person present.

[37] The next of the criteria relates to, if the dismissal relates to unsatisfactory performance by the person, whether the person had been warned about that unsatisfactory performance before the dismissal. Ms Richardson contends, in respect of the credit return, that that particular issue and the issue of performance was not related to the warnings that she had received, and she contends that the warnings received related only to time keeping and her attendance record.

[38] On the other hand, the Company argues that the warnings show the whole circumstance of employment in which an employee had been warned very strongly that she had to follow very closely the Company's directions, particularly in respect of time keeping. The Company does, though, concede that Ms Richardson had not been warned about performance in respect of the return of the discontinued stock.

[39] The next of the matters to which I have to turn is the degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in effecting the dismissal. On the basis of the evidence, I am not of the view that there was an impact because of the size of the employer's enterprise. It is, in my view, a medium size enterprise. It is nationally represented, at least in the eastern States, and has available to it the sophistication which comes with an operation of that size and dimension.

[40] The next of the criteria is 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. In this regard, I do not believe that there has been such an absence of dedicated human resource specialists or expertise.

[41] In fact, the evidence and the documentation provided by the Company is to the contrary. The documentation provided by the Company indicates that it has access to an HR specialist within the Company, Ms Dean. It is also the case that, in the course of giving evidence, Mr Samild advised that he had recourse to Ms Dean's advice before making a decision to dismiss. He also had recourse to advice from lawyers of the Australian Industry Group. I note that, in respect of that issue, while I am aware that the Company sought such advice, I am not aware of what the advice might have been.

[42] The last of the criteria relates to any other matters that the Commission considers relevant. In that regard, Ms Richardson raises in the form of a defence her complaint about workplace bullying. In relation to the workplace bullying complaint, the evidence shows that, on the balance of probabilities, it was isolated to an interaction with one co-worker and that the Company had acted on Ms Richardson's concerns as soon as it had become aware that there was an issue and that it had believed it had resolved the issue through an agreement with the two workers concerned that should allow the two to work more cooperatively together into the future.

[43] While there could be an argument about the extent to which the Company had neutrally received or dealt with the complaint, or followed up with Ms Richardson whether the relationship had subsequently improved on the ground, I am satisfied that the fact of the complaint was not a factor in the Respondent's decision to dismiss Ms Richardson.

[44] While Ms Richardson says her attitude to the workplace changed as a result of the behaviour she perceived as workplace bullying, she concedes that the relationship, at work at least, after the complaint in February was civil and professional and, other than some minor repetition of the behaviour, she did not report the problem further and, to all intents and purposes, considered the matter to be resolved. Ms Richardson did not connect her bullying complaint to the decision of the Company to dismiss her.

[45] As a result, while I refer to the bullying complaint as a factor requiring consideration by me, it is not, in my opinion, a matter that I consider relevant to my determination of whether Ms Richardson's dismissal was harsh, unjust or unreasonable.

[46] Having considered the statutory criteria for the determination of whether the dismissal was harsh, unjust or unreasonable, I am satisfied that the Company had a valid reason to dismiss Ms Richardson. The valid reason was her overall work performance, which was, in their view, unsatisfactory, in particular being the combination of accepting for return the discontinued product, together with Ms Richardson's recent employment history, which included warnings about poor time keeping.

[47] As a result of my consideration of the legislative criteria, I am not persuaded that Ms Richardson was dismissed in a manner that was harsh, unjust or unreasonable. As a consequence, I must dismiss her application to the Commission.

[48] An order dismissing the application has been issued in conjunction with this decision.

COMMISSIONER

Appearances:

Mr M Richardson, support person, and Ms K Richardson,on her own behalf.

Mr S Samild for the Ace Gutters Pty Ltd.

Hearing details:

2013.

Melbourne:

October, 11.

 1   Employer's Response to Application for Unfair Dismissal Form F3 dated 17 June 2013, item 5.

 2   Exhibit R2.

 3   Exhibit R5.

 4   Exhibit R6.

 5   Exhibit R7.

 6   Exhibit R8.

 7   Exhibit R8.

 8   Exhibit R7.

 9   Exhibit R9.

 10   Exhibit R10.

 11   Exhibit R11.

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