Ms Kym Johnson v AimBig Employment Pty Ltd T/A AimBig Employment
[2023] FWC 382
•1 MARCH 2023
| [2023] FWC 382 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Kym Johnson
v
AimBig Employment Pty Ltd T/A AimBig Employment
(U2022/7079)
| DEPUTY PRESIDENT CROSS | SYDNEY, 1 MARCH 2023 |
Application for an unfair dismissal remedy
Ms Kym Johnson (the Applicant/Ms Johnson) made an application to the Fair Work Commission (the Commission) pursuant to s.394 of the Fair Work 2009 (Cth) (the Act) for an unfair dismissal remedy (the Application) in relation to her dismissal from employment with AimBig Employment Pty Ltd T/A AimBig Employment (the Respondent/AimBig). The Application was lodged with the Commission on 13 July 2022.
I conducted a Directions Hearing in this matter on 13 September 2022. At the Directions Hearing, directions were issued for the filing of materials by the parties (the Directions). The Applicant sought to rely on the following documents in the matter:
The Form F2 – Unfair Dismissal Application together with Annexures dated 13 July 2022;
The Statement of Kym Johnson together with Annexures, dated 3 October 2022; and
The Statement in Reply of Kym Johnson dated 25 October 2022.
The Respondent sought to rely on the following documents in the matter:
The Form F3 Employers Response dated 27 July 2022;
The Statement of Matthew McIntyre dated 24 October 2022;
The Statement of Chiara Schultz dated 24 October 2022; and
The Statement of Tyronne Worrell dated 24 October 2022.
The Respondent also sought to lead evidence from Ms Jacqueline Cleworth who appeared at the hearing pursuant to a Form F51 Order to attend. Ms Cleworth, who was no longer employed by the Respondent, appeared by way of a video link.
At the hearing on 10 November 2022, the Applicant, who was previously represented by A Whole New Approach Pty Ltd, represented herself. The Respondent was represented with permission by Mr J R McLean of Counsel instructed by Ovartis Lawyers. All witnesses were required for cross examination.
The Reasons for Dismissal
The allegations put by the Respondent to the Applicant, which were all found substantiated, were that she:
(a) Knowingly altered information including dates of employment for the benefit of receiving outcome payments (Allegation 1);
(b) Had participants sign-off on information that was inaccurate and not a true reflection of their employment duration, hours, and earnings (Allegation 2);
(c) Hid key information from the Participant while getting them to input their signature at the bottom of the page, and providing them fuel cards to do so (Allegation 3); and
(d) Did not attend or work from the offices within her region on a regular basis as expected as part of her role and her employment contract (Allegation 4).
The Background Facts
The evidence received in this matter traversed issues well beyond the allegations outlined above, and at times was of barely peripheral relevance. Where necessary, that evidence will be addressed. However, the evidence as it related to the Allegations relates to two subjects, being:
(a) The events of late June 2022, regarding the completion of a “Confirmation of Employment Form” (the COE Form) and surrounding dealings with a participant whom I will refer to, for privacy reasons, only as “the Participant”. These events traverse Allegations 1, 2 and 3; and
(b) The Applicant’s attendance at work and compliance with the Work from Home policy. This evidence relates to Allegation 4.
(a) The COE Form
AimBig has been appointed by the Commonwealth Department of Social Services as a Disability Employment Services (DES) provider under the Commonwealth DES Grant Agreement (the DES Grant Agreement). As a DES provider, AimBig helps individuals with disabilities find and maintain meaningful employment.
In recognition of its provision of DES services, AimBig receives funding from the Commonwealth pursuant to the terms of the DES Grant Agreement. Under the terms of the DES Grant Agreement, AimBig is entitled to, amongst other payments, an “outcome fee” for each documented instance where a “participant” has been placed in employment by AimBig and has remained in that employment through to the relevant milestone (be it 4 weeks, 13 weeks, 26 weeks, or 52 weeks).
To facilitate AimBig claiming an outcome fee, AimBig maintains a COE Form in respect of each employee that AimBig places in approved employment. The COE Form is then periodically and incrementally completed with the participant to record both the number of hours worked by, and gross earnings of, the participant each week. Once AimBig has received satisfactory evidence of the participant remaining in employment through to the relevant milestone, the participant and an AimBig representative will sign off on the completed COE Form, and the AimBig representative will send the form to AimBig’s Claims team for lodgement with the Department of Social Services. On receipt of a completed COE Form, the Claims team will lodge the COE Form through the Department of Social Services’ online ESS system, and by so doing, request payment of the corresponding outcome fee from the Department. The Applicant’s evidence was that “… you always have to abide by the [DES Grant] agreement.”[1]
Funding received under the DES Grant Agreement is the primary source of AimBig’s funding. I accept that if AimBig were to lose DES provider status or otherwise become disentitled to funding under the DES Grant Agreement, AimBig’s business would be financially unviable. The Department of Social Services undertakes quarterly “spot checks” of the COE Forms that AimBig has submitted, and if AimBig were found to have made claims for funding in breach of the terms of the DES Grant Agreement, a loss of DES provider status would be a real possibility.[2]
AimBig’s also has it’s own Employment and Educational Outcomes Procedure (the Claims Procedure), which provides:
Outcome Requirements For The 13, 26 And 52 Week Claims:
Evidence the participant remained employed for the 13, 26 or 52 week period and worked an average of their benchmark hours over the period; or
Evidence the participant has remained employed for the 13, 26 or 52 week period and earned sufficient income for their base rate of any income support payments to cease (auto claim).
As recently as 18 May 2022, AimBig delivered online training to all AimBig employees on DES outcomes.
It was the evidence of Ms Schultz that, while outcome fees are paid to AimBig, outcome fees are a primary determinant of an Area Manager’s eligibility and entitlement to a bonus in a given financial year. The effect on the Applicant’s bonus of the actual outcome fee relating to Allegations 1, 2 and 3 would be, as described by Mr McIntyre, be “miniscule”.[3]
In or around early July 2022, Ms Jacquie Cleworth (previously a Team Leader, Central Coast) raised a concern with AimBig about the completion of a COE Form by the Applicant. That complaint was first raised informally with Ms Christina Robertson (then Head of Employment Services), and subsequently formalised by Ms Cleworth in an email to Louise Linnell (then Outcome Support Consultant). That email stated:
From: Jacqueline Cleworth
Sent: Wednesday, 6 July 2022 10:16 AM
To: Louise Linnell
Subject: [The Participant] - possible recoveryHi Louise,
Thank you again for your time on the phone; I put together the below recount for Chrissy previously regarding this claim.
On 22/6, [the Participant] attended our Wyong office for a scheduled appointment with Kym as his 52-week claim was due. Kym was not at our office, so once I finished the appointment I was in, given it was 30 mins past the scheduled appointment time, I saw [the Participant] and identified his claim was due. I could see a COE had been requested by Kym, so I printed it off but once we started talking, [the Participant] immediately disclosed that he had voluntarily resigned from his employment 8/5/22 and provided his final payslip. I asked him about a notice period, he stated that he had provided 2 weeks and so his final day was 22/5 which aligned with his final payslip. This unfortunately meant that he had fallen out of employment prior to the end of his claim period – 2/6. The Participant also disclosed that he was hoping to start in a new role 24/6/22. I began explaining the process from here with [the Participant] and about how we would need to get him re-registered with us. At this point, Kym arrived and so I explained the circumstances. Kym said none of this would be necessary and took the forms from my desk. She went over to her desk and added on hours for the final weeks of the claim. She then brought the forms back over to [the Participant] with the signature page on top of the hours page so he couldn’t see it. He asked what he was signing and proceeded to have a look at the other page, then noting that there were hours and earnings entered where he had not worked. Kym said to him that it was fine and that she had just put in his annual leave earnings and hours. [the Participant] then said he hadn’t worked in that time or been paid anything after the final payslip he had provided to us, at which point, Kym offered him a $100 fuel card. [The Participant] said he did not need a fuel card more than once, but Kym said it was no trouble and that she was happy to give him one. [The Participant] signed the form. I had also been in the process of updating [the Participant]’s Job Plan, and once Kym saw this, she told me to leave his employment in it, as she said otherwise it would cause issues with the Claims team. She then said she would do the Job Plan and so she printed it out with employment still in it, even though the Participant again advised he was not working. Kym replied that it was fine as he would be working again soon. [The Participant] signed the Job Plan and Kym approved it. Kym approved [the Participant]’s fuel card immediately and submitted the 52-week claim.
[The Participant] now confirmed with me that he commenced in a new role with Pinnacle 24/6 as a security guard. I have entered some notes into JobReady but have not entered the placement as of yet as I’m not sure what’s happening with this one.
Let me know what you need us to do from here.
Kind regards,
Jacqui
As may be seen, the Participant attended AimBig’s office for a scheduled appointment to discuss the status of his employment. The Participant had been due to reach the end of his 52 week employment period on 2 June 2022. The Participant advised Ms Cleworth that he had resigned from his employment, giving two weeks’ notice, with the effect that his final day of employment had been 22 May 2022.
When the Applicant arrived, Ms Cleworth explained to the Applicant that the Participant was no longer employed, but the Applicant took the Participant’s COE form, added in hours of work for the final two weeks of the claim period, and handed the COE Form to the Participant to sign.
When the Participant questioned the Applicant as to why the COE Form included hours and earnings for periods for which he had not worked, the Applicant told the Participant it was fine and offered him a $100 fuel card. The Applicant then advised Ms Cleworth to leave the participant’s former employment on the participant’s job plan record to avoid any issues being raised by the Claims team.
The particular COE Form was in evidence and it is agreed that it shows Ms Cleworth’s handwriting on every line but for the 52 week line, that was filled out by the Applicant.[4]
In order to address allegations 1, 2 and 3, I must balance the evidence of the Applicant and Ms Cleworth. In that regard, where their evidence differs, I prefer the evidence of Ms Cleworth. As noted above, she attended to give evidence under compulsion of a Form F51 Notice to Attend, and while reluctant to revisit the events of a past workplace, gave clear and considered evidence. The Applicant, on the other hand, while conceding many aspects of the regulatory structure from the DES Grant Agreement, gave evasive and inconsistent evidence when focus was applied to the unacceptability of her actions outlined in Allegations 1, 2 and 3.
In addition to the email referred to above, Ms Cleworth’s evidence in examination-in-chief included the following:
(Regarding Allegation 1)[5]
It would not have been accurate to complete the week 52 row?‑‑‑Yes, to put in details if I didn't have evidence of worked hours for that period.
Is it fair to say, Ms Cleworth, that in circumstances where you didn't complete the row it's because you didn't have the evidence that [The Participant] had worked that period?‑‑‑Yes, I would say so.
Given the questions I've just asked of you, Ms Cleworth, do you have any greater recollection now of a meeting with [The Participant] and Ms Johnson?‑‑‑Yes, look, I do recall from the conversation, I do have one memory with him thinking that he would need to be exited and that we would need to re-register him as a participant with us because he had ceased an employment. I do remember giving him that or beginning to give him that instruction and it was at that time I recall that my old manager [the Applicant] entered the office and, you know, advised me that wouldn't be necessary and I deferred to her. But it was not my – I did not have the same summation of the situation, I suppose. I didn't reach the same conclusion.
You didn't agree with Ms Johnson's conclusion that the 52-week row could be filled in?‑‑‑I did not, no.
Do you recall why Ms Johnson said the 52-week row could be completed?‑‑‑Not really. I recall being uncomfortable and I recall – yes, as I said, I really didn't have a great experience all through. So I recall being uncomfortable and I, you know, recall thinking that maybe, you know, it was something I could look further into but I did not. I deferred to her in that instance.
That's understandable?‑‑‑But I didn't – I do recall thinking myself that I was not prepared to be involved in it because it didn't – with the information that I had at that time it didn't look accurate to me.
(Regarding Allegation 2)[6]
Was there – what was your recollection of that discussion in relation to the fuel voucher?‑‑‑The biggest thing I remember struggling with is that we had other participants where we had not been able to get fuel vouchers for who I felt were deserving and in need, and this particular participant had not requested one, however – and had actually – I do recall that he actually, you know, was sort of like, 'No, I'm fine', and it was offered to him anyway. So I do remember thinking, you know, it wasn't a needs-based decision.
When you say it wasn't a needs-based decision, do you have any understanding of the context in which the fuel card was offered?‑‑‑Well, he wasn't asking for it. He didn't require it to access employment or to maintain his employment. He was not – yes, so needs-based I would say would be more, you know, if we're trying to enable or maintain a person's employment that would be needs-based. This was not about that. This is not how that request arose or was fulfilled.
(Regarding Allegation 3)[7]
Do you recall whether the participant raised any concerns about the content of his confirmation of employment form?‑‑‑Yes, I do remember him saying, 'I didn't work in those weeks'.
Was there any - - -?‑‑‑The way – yes, I do remember something else. It was printed – it wasn't printed double-sided. It was a two-sided document that was provided to him and the page for him to sign which did not have any of the hours visible was what was provided to him which meant and then he lifted it up to review his hours and that was when he made the comment, you know, 'I didn't work in these hours'.
What was the response - - -?‑‑‑'I didn't work in these weeks.'
Did you respond to that, Ms Cleworth?‑‑‑It wasn't a question raised to me. It was to Ms Johnson. I believe – and, look, I'm stretching here and I don't know if I should – I think I should only be giving facts and I – my recollection is grey on this so I probably - - -
After the above events, the Applicant provided the COE Form to the Claims team for lodgment. The COE Form, being signed by the Applicant and the Participant, would have appeared compliant on its face, and as a result the Claims team lodged the claim in the Department’s ESS system on 21 June 2022. The Department approved the claim on 23 June 2022, and paid AimBig an outcome fee in relation to the Participant’s employment.
The Applicant’s conduct in respect of the Participant’s COE Form caused AimBig to claim monies to which it was not entitled, in contravention of the DES Grant Agreement. The Applicant’s conduct in that respect would also have been in breach of the DES Grant, AimBig’s Claim Procedure, and the Code of Conduct.
Further, in relation to Allegation 3, in around April 2021, AimBig issued all team members (including the Applicant) with an “Operational Bulletin” on the use of fuel cards. That Bulletin stated:
Gift cards cannot be offered to Participants for the purpose of obtaining evidence in order to claim outcome fees.
AimBig has consequently had to notify DES that the amount has been claimed improperly, however, the date on which the Respondent formally notified the Department of its concerns in relation to the outcome fee claim was not until 21 October 2022, 20 days before the hearing of this matter.
(b) The Applicant’s Attendance at Work
The group of companies of which AimBig was a member had a Working From Home Policy, of which the Applicant was aware.[8] The Applicant, however, sought to suggest that some separate policy, which was part of the “onboarding process” applied to staff.[9] I consider the Applicant to be evasive in this regard.
I accept the evidence of Mr McIntyre that AimBig has a Policy, which requires that an employee submit to their manager a Flexible Work Agreement Form and be notified in writing of the outcome of that application, before being permitted to adopt a working from home arrangement.
I also accept that as an Area Manager, it was critical for the Applicant to regularly attend each of the five offices within her region of responsibility, to both ensure that staff in those offices were supported, and to maintain AimBig 's service delivery.
The Applicant’s office attendance was first raised with AimBig by a team leader in the Central Coast region in early July 2022, around the time of the investigation into Allegations 1, 2 and 3. In the meeting on 8 July 2022, the Applicant asserted that she had been in the office "every day".
I accept Mr McIntyre’s evidence that AimBig 's IT department subsequently reviewed the Applicant's office attendance in June 2022, and determined that the Applicant had not logged-in to AimBig's systems from an AimBig office on any of the following workdays (with weekends excluded):
1-3 June 2022;
6-10 June 2022;
15-17 June 2022;
23-24 June 2022; and
28-30 June 2022.
I note that Mr McIntyre accepted the possibility that the Applicant could have theoretically attended the office on some of the above days and not had any occasion to log into AimBig 's system, but agree that would certainly not have been a plausible explanation for all of the above days, nor even a majority of them.
(c) Other Matters
In the proceedings, further issues were raised regarding alleged inappropriate credit card use, and damage to AimBig motor vehicles and a wage subsidy issue. None of the evidence raised in relation to those issues assisted in the determination of the existence or otherwise of those allegations, and they have formed no part of my consideration. I also note the Respondent relied on those issues only as to remedy and not valid reason.[10]
(d) The Investigation
On 1 July 2022, the Applicant stated that she received a Microsoft Teams call from Dallas Wilson (Human Resources) and Christina Robertson (Manager). In a subsequent telephone call that day, Ms Wilson and Ms Robertson informed the Applicant that there had been allegations made against her which were “serious in nature”, however when the Applicant asked for clarification, Mr Wilson stated that they did not have time to go over them. Ms Wilson and Ms Robertson also stated that the Applicant would be suspended, and her access to the Company’s systems would be revoked.
On 5th July 2022, the Applicant received an invitation to a disciplinary meeting to occur on 8 July 2022. That letter set out the four allegations outlined above. The Applicant stated that all four of the allegations were completely incorrect.
The Applicant noted that she attended the disciplinary meeting on 8th July 2022, with Ms Wilson and Ms Robertson, where she denied the four allegations and explained the basis for her position. The Applicant stated that she offered to provide evidence which would rebut the allegations, however Ms Wilson and Ms Robertson said, “that won’t be required”.
The Applicant stated that she attempted to raise her concerns regarding the lack of support she received during the COVID-19 lockdown and the American Express credit card, but Ms Wilson and Ms Robertson did not engage with her concerns and commented that she had sorted the work credit card issues. Ms Wilson then said that CEO, Ms Tracey Clenaghan, would be presented with all the evidence and will make a decision regarding her employment. I note that there was in evidence a 25-page transcript of the 8 July 2022 meeting that disclosed a significantly more detailed consideration of the allegations against the Applicant and other matters, and I prefer the recollection therein contained.
After the 8 July 2022 meeting, the Applicant emailed Ms McClenaghan about the investigation, noting that she wished it had been handled differently and requesting a discussion before a decision would be made. The Applicant stated that Ms Clenaghan responded that she was “unable to discuss further”.
The Applicant stated on 11th July 2022, she received an email with a letter attached advising her that she was invited to attend a Show Cause meeting. On 13 July 2022, she attended the show cause meeting with her support person. The Applicant stated the meeting was extremely brief, lasting under 10 minutes, though thereafter, the Applicant received an outcome letter (the Termination Letter), that stated:
13 July 2022
Private & Confidential
Kym JohnsonDear Kim,
We met with you today to discuss the outcome of investigation, to share with you the findings and the decision taken as to whether the allegations made against you were founded or not. You were accompanied by a support person Mr Boy Gu, and I was in attendance with our Head of People & Culture, Dallas Wilson. The purpose of this letter is to confirm what we discussed with you.
On Friday 8 July in the presence of myself and Dallas Wilson our Head of People & Culture, you were given the opportunity through a show cause meeting to respond to the allegations made against you. You chose not to have a support person with you and were comfortable to proceed.
As agreed by you, the recording of the investigation and all supporting evidence obtained throughout the investigation process was provided to a senior manager, our AimBig CEO for her to review and to determine the outcome to ensure impartiality and fairness in the process.
The allegations that formed part of the investigation are listed below, and the outcome is also outlined.
You have knowingly altered information i.e., dates of employment for the benefit of receiving outcome payments.
Substantiated | it was determined that there were inconsistencies in your responses and that it was contrary to the information provided to us by several employees and sources.
You have had participants sign-off on information that is inaccurate and not a true reflection of their employment duration, hours, and earnings
Substantiated | the evidence provided to us clearly suggest that you have on occasions, hidden parts of the page (the information) when obtaining a participant’s signature. We also know that there have been times when the participant has questioned you about the content that they are signing as it is not reflective of the truth, and you have confirmed to them that it is all within due process.
You have hidden key information from the Participant while getting them to input their signature at the bottom of the page and providing them fuel cards to do so.
Substantiated | the evidence supplied to us was obtained from several sources and all indicate that fuel cards have been offered to distract a participant and/or coerce an outcome that would positively benefit the business and disregard the legal framework.
You are not attending or working from the offices within your region on a regular basis as expected as part of your role and your employment contract.
Substantiated | the information technology records that we maintain, and the employee statements provided, confirm to us that you are not attending the office locations or being available and responsive which are key expectations of the Area Manager position.
Kym, your decisions to exercise poor judgement and conduct yourself unethically goes against the values of our business, our code of conduct, your employment obligations and that of the Department. These actions not only put your area contract at risk but are potentially damaging to the entire business and constitute gross misconduct.
As the Area Manager you are expected to support and lead your team and exemplify ethical practice. These founded actions are so serious so to mitigate any further risk to our AimBig business and in accordance with clause 26. Termination of Employment of your employment contract, we are terminating your employment with immediate effect based on points (a) and (b) of the clause.
(a) commit any serious or persistent breach of any of the terms of the Contract; and
(b) are guilty of dishonesty, misconduct or neglect in the performance of the of your obligations under the Contract.We will need to collect all company property from you, and I will coordinate this with you and arrange for you to collect any of your personal items that you may have at the office. You will be paid any outstanding entitlements as part of your last pay.
This matter remains highly confidential and to ensure that all our employees feel safe, we ask that you do not contact them at any point to discuss this matter. It is our duty of care to ensure that the psychological safety of our employees is maintained so failure to adhere to this request may result in us taking further legal action.
Yours sincerely,
Christina Robertson
Head of Employment Services
AimBig Pty Ltd.
Consideration
(a) Preliminary Matters
I am satisfied that the Applicant is protected from unfair dismissal. The dismissal was not a redundancy and the Respondent is not a small business such that the Small Business Fair Dismissal Code does not apply. Further, the application was made within the time limits prescribed by the Act. I am also satisfied that the Applicant was dismissed from her employment.
In determining if the Applicant was unfairly dismissed it is necessary to determine if her dismissal was harsh, unjust or unreasonable. Section 387 of the Act sets out those matters to be considered by the Commission.
Section 387 of the Act states:
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.”
(b) Valid Reason for the Dismissal and Severity of Misconduct (S.387(a) and (h))
To be a valid reason, the reason for the dismissal should be sound, defensible or well founded and should not be capricious, fanciful, spiteful or prejudiced. However, the Commission will not stand in the shoes of the employer and determine what the Commission would do in the same position.
In Sydney Trains v Gary Hilder[11] (“Hilder”) the Full Bench summarised the well-established principles for determining such matters[12]:
“The principles applicable to the consideration required under s 387(a) are well
established, but they require reiteration here:(1) A valid reason is one which is sound, defensible and well-founded, and not
capricious, fanciful, spiteful or prejudiced.(2) When the reason for termination is based on the misconduct of the employee the
Commission must, if it is in issue in the proceedings, determine whether the conduct
occurred and what it involved.(3) A reason would be valid because the conduct occurred and it justified termination.
There would not be a valid reason for termination because the conduct did not occur or
it did occur but did not justify termination (because, for example, it involved a trivial
misdemeanour).(4) For the purposes of s 387(a) it is not necessary to demonstrate misconduct
sufficiently serious to justify summary dismissal on the part of the employee in order to
demonstrate that there was a valid reason for the employee’s dismissal (although
established misconduct of this nature would undoubtedly be sufficient to constitute a
valid reason).(5) Whether an employee’s conduct amounted to misconduct serious enough to give rise
to the right to summary dismissal under the terms of the employee’s contract of
employment is not relevant to the determination of whether there was a valid reason for
dismissal pursuant to s 387(a).(6) The existence of a valid reason to dismiss is not assessed by reference to a legal right
to terminate a contract of employment.(7) The criterion for a valid reason is not whether serious misconduct as defined in reg
1.07 has occurred, since reg 1.07 has no application to s 387(a).(8) An assessment of the degree of seriousness of misconduct which is found to
constitute a valid reason for dismissal for the purposes of s 387(a) will be a relevant
matter under s 387(h). In that context the issue is whether dismissal was a proportionate
response to the conduct in question.(9) Matters raised in mitigation of misconduct which has been found to have occurred
are not to be brought into account in relation to the specific consideration of valid reason
under s 387(a) but rather under s 387(h) as part of the overall consideration of whether the dismissal is harsh, unjust or unreasonable.”
As noted above under the heading “Background Facts”, I have found each of the Allegations relied on by the Respondent did occur. The issue regarding valid reason in this matter after finding that the conduct occurred, is whether the conduct of the Applicant justified termination. That consideration arises as a relevant matter pursuant to s.387(h) of the Act.
Taken as a whole, the four Allegations collectively justified the summary dismissal of the Applicant. Allegations 1, 2 and 3, being necessarily collectively considered, themselves justified the termination of the Applicant, constituting as they did conduct that could have an impact on the very existence of the Respondent. I find the Applicant knowingly contravened the DES Grant Agreement, the Claims Procedure and the Respondent’s code of conduct.
The Applicant’s cavalier use of the offer of the fuel card is particularly concerning. On the evidence of Ms Cleworth, which I have preferred, the fuel card was used as a device to distract the Participant at the time his signature was being sought. Similarly, the presentation of the document for signature in a form where previously questioned hours were not visible was also concerning.
Apart from cavilling with whether Ms Cleworth had written the email to Ms Linnell on 6 July 2022, and pressing a further interpretation of the DES Outcome Guidelines,[13] the Applicant did not in her submissions dispute the essential facts of Allegations 1, 2 and 3.
I find that there existed valid and justifiable reasons for the dismissal of the Applicant. While there was negligible monetary gain to the Applicant, and I am concerned that for a breach of substance that it was not reported to the department for some months, the gravity of the conduct is not diminished.
(c) Procedural Fairness
The issue of procedural fairness is a significant issue raised by the Applicant in her submissions, however I do not accept her criticisms. While the letter of allegation of 5 July 2022, lacked detail of, for example, the Participant’s name, it is apparent from the detailed 25-page transcript of the meeting of 8 July 2022, that the Applicant had no difficulty is understanding, and responding to, the allegations being put to her. That may have been because the minutes recorded the invitation to the meeting describing “…some of the material that we have that we want to share with you today”.
Otherwise, I formally note that the Respondent:
(a) Notified the Applicant of the reasons for dismissal (s.387(b));
(b) Gave her the opportunity to respond to any allegations (s.387(c)); and
(c) Allowed her to have a support person present at relevant times (s.387(d)).
The matter did not involve any concerns about the Applicant’s performance and no warnings had been issued in this regard (s.387(e)). Neither party submitted that the size of the Respondent’s enterprise or its access to human resource management specialists or expertise was likely to impact on the procedures followed in effecting the dismissal.
Conclusion
I have made findings in relation to all matters 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 and therefore an unfair dismissal.
I do not find that the dismissal of the Applicant was in any way harsh, unjust or unreasonable.
The Application is dismissed.
DEPUTY PRESIDENT
Appearances:
Ms Kym Johnson, for the Applicant
Mr J McLean, Counsel for the Respondent
Hearing details:
2022.
November 10.
Sydney.
[1] Transcript PN 232.
[2] Transcript PN 344 to 352, and 394
[3] Transcript PN 1369; see also PN 1007.
[4] Transcript PN 493.
[5] Transcript PN 922 to 928.
[6] PN 934 and 935.
[7] PN 936 and 939.
[8] Transcript PN 728.
[9] Transcript PN 746.
[10] Respondent’s Submission at [9].
[11] [2020] FWCFB 1373.
[12] Ibid at [26].
[13] Applicant’s Submissions, lines 89 to 129.
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