Ms Leanne Jenner v Salisbury Bowls Club Inc

[2014] FWC 4431

[2014] FWC 4431

FAIR WORK COMMISSION

DECISION

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

Ms Leanne Jenner
v
Salisbury Bowls Club Inc.
(U2014/420)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 17 JULY 2014

Summary: whether fairly dismissed for the purposes of the Small Business Fair Dismissal Code - reason for the dismissal does not constitute serious misconduct - summary dismissal - reliance on s.387 of the Act in the alternative - employee involved non-employee in internal staffing issue etc.

[1] Ms Leanne Jenner (“the Applicant”) has made application under s.394 of the Fair Work Act 2009 (“the Act”), seeking an unfair dismissal remedy in relation to the dismissal from her employment by Salisbury Bowls Club Inc (“the employer”). Since 2008, the Applicant had performed duties variously as a bar attendant and more recently as assistant manager for the employer until 24 January 2014, whereupon she was dismissed by her employer for reasons of: unacceptable language; breaching a duty of care and misrepresenting the nature of an incident when an enquiry was made by her employer.

[2] At the outset I note that the employer is a small business employer for the purposes of section 23 of the Act. The employer has only two full-time employees and 12 regularly and systematically engaged casuals. Notwithstanding this, the employer relies upon the Small Business Fair Dismissal Code (“the Code”), and completed the checklist included as part of the Code. That said, the conduct in evidence in these proceedings was not conduct that could be described as serious misconduct warranting summary dismissal. The Applicant, it should be said, was not summarily dismissed. I will deal with these matters further below.

Background

[3] As important background, it is necessary to set out that in mid-2013 the Applicant decided that the employer should employ a Mr Andrew Scott as a bar attendant. She claims to have had performance issues with Mr Scott from the commencement of his duties, however she did not take any performance action at the time. The Applicant’s relationship with Mr Scott is central to the incidents which led to her dismissal.

[4] Mr Scott was dismissed from his employment subsequent to what I call the “January incident” below.

[5] It is also necessary to mention that in August 2013 the employer’s then club manager, Mr Wayne Lovell, ceased to perform that role and a new club manager was appointed. The new club manager was Mr Craig Howlett. Mr Howlett commenced his duties in September 2013. Mr Lovell’s role in the “January incident” is also of some importance, as of course is Mr Howlett’s role, he being the relevant manager at the time.

[6] By September 2013, the Applicant’s relationship with Mr Scott appears to have reached a parlous state.

[7] Mr Howlett’s diary notes, maintained on a contemporaneous basis, show that in early October 2013 the Applicant had referred to Mr Scott as a “c..t”. Mr Howlett’s diary notes show that at that time he “advised [the Applicant] we don’t speak of staff that way”.

[8] Mr Howlett’s diary notes reveal further that on 5 October 2013 the Applicant had been involved in a “public outburst” with Mr Scott over an issue about the management of a patron on site.

[9] The Applicant claimed, for her part, that at that time in a meeting with Mr Scott and Mr Howlett, Mr Scott was said to have exclaimed:

I’ll only be happy when she [the Applicant] hands her keys in.

[10] The Applicant claims that Mr Howlett gave little support to her following that remark.

[11] The Applicant claims that when she was alone with Mr Howlett the following conversation took place:

The Applicant: Andrew is nothing but I c...t.

Mr Howlett: is everyone a c...t when things don't go your way?

[12] The Applicant claimed that staff members had indicated to her that they did not wish to work with Mr Scott, and that this created difficulties with staff rosters.

[13] The Applicant gave an example of Mr Scott’s apparent inappropriate conduct. She claimed that on 11 November 2013 Mr Scott had rebalanced a cash till upon the commencement of his shift which had just been balanced by the outgoing bar attendant. The Applicant claimed the outgoing bar attendant had said that Mr Scott may not have trusted him because of his action in rebalancing the till. The Applicant said that she had intervened at this point and mentioned to Mr Scott that his time would be better served serving customers and doing his general duties.

[14] It appears, however, that the employer’s cash handling and till procedures (as referred to in these proceedings) require employees to carry out the very act of till verification that Mr Scott executed, at the beginning of each shift and at shift changes.

[15] The Applicant claimed that on that same day, 11 November 2013, she was discussing the cash till issue in the dining area with Mr Scott and Mr Howlett. During the discussion, the Applicant claimed she became upset and said to Mr Scott:

You are just sucking up the f..king arse of Craig and the committee.

[16] Mr Howlett records the exchange in his diary notes in the following way:

Leanne disagreed with Andrew for balancing tills at the start of the shift. Swore at him at the bar in front of patrons. When spoken to said his actions inferred he thought other staff members were dishonest. It was time wasting, he was a bad worker. He was sucking up the arse of the board and myself. Said he must have been promised something from us. That she was the one being bullied.

I clearly advised that swearing will not be tolerated. Staffed be treated with respect and as previously advised that if she has a problem with anyone's work she is to deal with it as it happens and if she is not able to do that she is to speak with me and I will assist her. Matters only arise when there is a conflict. She stated that staff do not want to work with him. This is not true. I have spoken with others. There was a small problem but this was addressed and resolved. (sic)

[17] Following the altercation between the Applicant and Mr Scott at the bar on 11 November 2013, a complaint was received from a Club patron. Again, Mr Howlett’s diary notes refer to the complaint in the following terms:

Phone call from a man who identified himself as Peter. He was in the club on 11/11 when Leanne went off at Andrew. He was accompanied by his daughter and granddaughter. He told me the woman with long blonde hair went off at the barman. He said I don't know what he did but the language used was fouled and should not be heard in the club. The 3 of them departed straight after the altercation. (sic)

[18] The Applicant was subsequently given a warning about her conduct as exhibited on 11 November 2013. The copy of the handwritten written file note relating to the above incident was attached to Mr Howlett’s evidence. The formal written warning given to the Applicant by Mr Howlett formed part of the Applicant’s evidence. Neither the written file note or the text of the formal written warning were contested, though the Applicant did challenge one aspect of the record, which I will deal with later. The file note’s contents are important for the purposes of the determination of this application and I will replicate the relevant part of that file note below. The file note was compiled by Mr Howlett, and included the following comments:

Leanne was asked if she wished to remain working at the club.

Leanne answered that yes she did as she liked her job and was good at it.

Craig acknowledged that Leanne had a lot of knowledge and is a hard worker and that we would like to see her remain at the club.

There are however a number of areas of concern, that have been raised previously that must change:

The following matters were tabled as concerns to myself and the board.

Language being used both in general discussion and at times of conflict with staff members is unacceptable and must be improved. Use of words such as f..k and c..t will not be tolerated under any circumstances. The same standard is to be enforced to all staff.

Disrespectful comments made to patrons and board members about myself and board members has to stop. Telling members that I am not a manager's arse hole and telling members that board members had no idea of what they are doing, they are running the club broke and that our events are running at losses will not be tolerated

Leanne responded in relation to the managers arsehole comment “well you are not” I advised if that is what she truly believed then there is a problem ongoing.

Despite previously been told that conflicts with staff must be handled in private and with both respect and a calm manner Leanne had a conflict with Andrew in the bar area where she used unacceptable language. These actions result in a complaint to myself on the day from Andrew and a patron complaint by phone to me on 12 November. Leanne was advised actions such as this will not be tolerated in the future and we need to find a better way to deal with problems.

Future rosters are to give consideration to all staff needs and hours of those who wish to maximise their hours. My direction is that those wanting maximum hours are to receive as close to even hours as business needs and availability allow. This matter has been requested to be done on three occasions now and is not consistently been done.

I asked if there was anything Leanne wish to say.

Leanne said that it appears Andrew can do what ever he wants and that no one can ask him to do anything. She gave an example of Millie asking him to take rubbish out. I advised that I believe that matter to have been addressed and this meeting was about Leanne not others. I also advised that the report of no other staff members wishing to work with Andrew are not true. I had spoken to staff concerned and any matters had been resolved some weeks ago.

I again asked Leanne if she wished to continue working here.

She replied, I will have to think about it. I can't change after 30 years.

I advised her that if she needed help with anything discussed that I am willing to help. I also advised that I believe she could comply with our requirements but it was up to her to make the decisions.

Leanne asked what I would do if she did not make the required changes. I advised that they were not negotiable and if she chose not to change then I would put in place more formal processes that would look at all our options one of which may include termination. (sic)

[19] The issue with which the Applicant demurred in relation to the above file note was Mr Howlett’s expectations about swearing. The Applicant claimed that it was very common for committee members, patrons and other employees - including Mr Howlett himself - to swear in the workplace.

The January incident

[20] On 18 January 2013, the Applicant claimed that she directed Mr Scott to fill a cooler with beer bottles and ice. The Applicant noticed that Mr Scott was filling the cooler with ice first and then trying to fit the beer bottles in subsequently. She claimed the following exchange ensued:

Applicant: why wouldn't you put the beer in first, then the ice?

Scott: why would you even waste your breath?

Applicant: Gee you’re an arse.

Scott: I’m an arse? You're a f..king arse, and I'm calling Craig.

[21] The Applicant claimed to have been upset by Mr Scott’s comments.

[22] Mr Scott’s written complaint to the employer, made later on the day of the January incident, put the exchange this way:

I was in the process of carrying out an instruction from Ms Jenner to restock a beer cooler when she approached me. She was laughing and shaking her head and said “Why wouldn't you put the beer in before the ice?” Given this kind of statement from Ms Jenner is an example of what I consider an ongoing pattern of petty harassment and serious abuse, I responded; “Why would you even waste your breath worrying?”

[...]

At this point Ms Jenner’s physical demeanour changed and she said, quite aggressively, “Do what you f...ing want Andrew, you're nothing but a pain in the f...ing arse.”

I then removed myself and return several minutes later and said “I need to go on a stress induced break”. Ms Jenner responded, “do what you fu..ing want”.

[23] Mr Stephen Bowen was the shift supervisor on duty at the time, and he overheard the exchange between the Applicant and Mr Scott, which he described as being “an altercation over stocking a beer cooler on the bar”.

[24] Mr Bowen stated that during the course of the altercation, as he described it, he heard the Applicant say:

“Do what you f..king want Andrew, your nothing but a pain in the arse”.(sic)

[25] Mr Bowen gave further evidence that some minutes later he heard Mr Scott “announce [that] he was going on a stress induced break” and the Applicant had responded with words to the effect of, “do what you f..king want”.

[26] Shortly after the altercation referred to above, the Applicant was in conversation with the former manager of the club, Mr Wayne Lovell. Mr Lovell’s tenure as club manager ended in August 2013. He remained a Club member, however. In the course of the conversation with Mr Lovell, the Applicant claimed that she noticed Mr Scott leaving the bar area and moving towards Mr Howlett’s office.

[27] The Applicant said that upon noting Mr Scott’s movement towards Mr Howlett’s office she commented, “Hang on”, and followed Mr Scott. In so doing, the Applicant claimed she requested the attendance of another employee, Ms Wendy Waugh, to act as a witness in any subsequent discussions with Mr Scott.

[28] The Applicant also contended she was aware that Mr Lovell was in her proximity but assumed that he was simply in the process of exiting the club’s premises, which required him to pass by Mr Howlett’s office door.

[29] The Applicant claimed that when she arrived at the manager’s door she unlocked it and noticed that Mr Scott was inside holding his phone and walking towards the office door, which she had just opened.

[30] The Applicant claimed the following conversation then took place:

Applicant: what are you doing in the office?

Scott: I'm phoning Craig.

Applicant: you're not supposed to be in here.

[31] The Applicant then claimed that Mr Scott turned his attention to Mr Lovell and the following conversation took place:

Scott: what are you doing here?

Lovell: as a full member of the club I had every right to be standing here.

Scott: you're in my face. If you don't leave, I will call the police.

Applicant: you would, wouldn't you?

Lovell: if you don't like it, you leave.

Scott: are you threatening me?

Lovell: am I threatening him?

Waugh: No.

Applicant: you are needed in the bar, please go back to work.

Scott: I don't have to listen to you, you are not my boss. He is (referring to the shift supervisor, Mr Bowen).

Applicant: I am the assistant manager and am still on duty so I am in charge.

Lovell: yes she is.

Applicant: this is a waste of time, let's go Wendy.

[32] Mr Lovell gave evidence in these proceedings.

[33] His evidence, in summary, was that:

On 27 August 2013, his employment with the respondent ended, however he remained a member of the Respondent.

It is common for committee members, patrons and employees to use swear words in general conversation.

He came to the conclusion that Mr Scott was unsuitable for employment as a bar attendant with the Respondent.

On 18 January 2014 he was in the course of leaving the respondent’s premises and farewelling the Applicant when he observed her to be crying.

He followed the Applicant out of curiosity but also because he was on his way out of the respondent’s premises on his way home.

He arrived at the manager’s office door after the Applicant and stood to one side.

He corroborated the exchange between the parties as set out above, verbatim.

[34] Mr Lovell was subsequently involved in a complaint process with the employer. He complained he had been spoken to inappropriately by Mr Andrew Scott in the course of the above mentioned January incident. He claimed that he had been involved in a “confrontation” with Mr Scott, at Mr Scott’s instigation and was spoken to in a “very rude and aggressive manner”.

[35] Mr Lovell claimed to be a person “that happened to be standing where I was”.

[36] Mr Lovell provided various other materials in the course of his evidence about his own interactions with the Applicant’s employer subsequently. But these materials are not relevant to these proceedings. Mr Lovell also claimed in these materials that despite not being an employee of the employer that he had “found out details of staffing matters that were mentioned and from subsequent information and personal observations [that he had] concluded that there were indeed staffing issues that appeared to be biased in favour of Andrew Scott.” These claims were of an amorphous nature and not of probative value.

[37] The Applicant’s construction of events around the January incident was challenged by the evidence of one of the participants, Ms Wendy Waugh.

[38] Ms Waugh gave evidence that she was approached by the Applicant to come with her at about 4:34pm and given no reason why.

[39] She followed the Applicant to the bar area beside what is called the selectors office. Mr Lovell, Ms Waugh claimed, also came to the same area from the bar at the same time.

[40] At that point the Applicant advised Ms Waugh - in front of Mr Lovell - that she needed her to be a witness. According to Ms Waugh, the Applicant had still not explained what the purpose was. Ms Waugh then claimed that the Applicant had a conversation with Mr Lovell, which she could not hear as the conversation was directed to Mr Lovell in “a low voice”.

[41] Ms Waugh then claimed that the “three of us then proceeded to the manager’s office [and] the Applicant lead the way followed by Wayne [Lovell] and myself.” (sic)

[42] Ms Waugh claimed that the construction of the exchanges between the parties that she preferred was not that as proffered (in identical terms) by the Applicant and Mr Lovell, but that as proffered by Mr Scott, in the written complaint to the employer referred to above.

[43] The construction of events that is set out in Mr Scott’s written complaint is as follows:

4:30PM: (approximate) I went to the office and use the work phone and left a message Mr Howlett asking him to call me urgently

4:33PM: (approximate) as I walked towards the office door to leave, I heard a key in the lock in the door open towards me. At this point I saw Ms Jenner take several steps backward and Mr Lovell, who was directly in front of the door took a step forward is inside the office. As accurately as I can recall, the conversation went as follows:

Ms Jenner: what are you doing in here?

Me: I came into call Craig

Ms Jenner: you're not allowed to be in here.

Me: I think I am.

Mr Lovell: no you're not.

Me: what does this have to do with you?

Mr Lovell: I am a member of this club, what are you doing in here?

Me: you have no right to interfere, why are you involving yourself?

Mr Lovell: listen to me you little sh.t, I have every right to ask what you're doing.

Me: (to Ms Jenner) so now I have both of you swearing at me.

Ms Jenner: I never swore at you. (To Wendy Waugh) Wendy, did you hear me swear at him?

Ms Waugh: no I didn't.

Me: (to Mr Lovell) can you get out of my way please I would like to leave.

Mr Lovell : I’m not stopping you.

Me: you are, you are in my face and you are blocking the door and you know you're not meant to be in here in the first place.

Ms Jenner: He’s allowed.

Me: no he isn't and you know it.

Ms Jenner: you're a fu..ing waste of time.

Mr Lovell: (clearly highly agitated/clenched fists/shaking) I am the manager... a member of this club.

Me: yes and I’m an employee and have a right to ask you to leave.

Mr Lovell: you should leave.

Me: you're threatening me.

Mr Lovell: no I'm not.

Me: you have me trapped inside the office and if you don't remove yourself I’ll call the police and have you removed.

Ms Jenner: you would wouldn't you.

[44] Mr Scott’s written complaint goes on to explain that Mr Lovell moved slightly away from the door and he (Mr Scott) moved past him and returned to the bar area, whereupon he sent a text message to Craig Howlett.

[45] Ms Waugh’s evidence was that:

I have read the account of this event in the letter dated 19 January 2014 from Andrew Scott and in my recollection is an accurate account of the event in relation to the period between 4:33 PM and the parties leaving the area of the manager's office. The only aspects I am unsure on is if Leanne Jenner or Wayne Lovell swore during this period.

[46] Ms Waugh went on to give evidence that “in relation to Wayne Lovell having verbal interaction with Andrew Scott, this was initiated by Wayne Lovell as stated in Andrew Scott's letter of 19 January and not as stated in the two mentioned witness statements”. The witness statements to which Ms Waugh referred with those of Mr Lovell and the Applicant.

[47] Ms Waugh also disagreed with the Applicant’s evidence that the Applicant - in the course of proceeding to the manager’s office - had stopped near the selectors office to explain to Ms Waugh that:

I wanted her to accompany me to the manager’s office to be a witness because of the previous problems I had with Mr Scott distorting the truth.

[48] Ms Waugh claimed further that while the Applicant had stated in her evidence that she had assumed that Mr Lovell was leaving the club and had only noticed that he was standing nearby, the Applicant and Mr Lovell had in actuality stood and had a conversation prior to proceeding to the manager’s office.

Post “January incident” events

[49] As referred to above, Mr Scott made a written complaint about the January incident and claimed that he had been verbally and physically threatened by the Applicant and Mr Lovell.

[50] The Applicant was interviewed by Mr Howlett about the events described above.

[51] Mr Howlett was assisted in this regard by CCTV footage. I note, however, that he did not provide the Applicant with an opportunity to view the relevant CCTV footage at the time she was interviewed. Though, for reasons I will give below, nothing material turns on this.

[52] Mr Howlett claimed that the Applicant had explained that Mr Lovell had only become involved because he “happened to be passing on his way out”. This was consistent with the Applicant’s evidence in these proceedings. It was also the position taken by Mr Lovell himself.

[53] Upon viewing the CCTV footage Mr Howlett formed a view that Ms Jenner had involved Mr Lovell purposefully in the January incident, and his (Mr Lovell’s) involvement was not serendipitous.

[54] Mr Howlett contended that the Applicant had breached her duty of care under the staff procedures manual and had not appropriately dealt with a disciplinary issue. That is, the Applicant had mismanaged the situation and placed an employee in a stressful and threatening situation.

[55] Mr Howlett also found that the Applicant had involved a non-employee in an internal staffing issue, in the course of which a staff member felt physically and verbally threatened. Further, the Applicant had shown no initiative in seeking to diffuse the situation.

[56] In the light of the previous warnings (as set out above) and what Mr Howlett believed was the inaccurate account of the events given by the Applicant, the Applicant’s employment was terminated.

Legislative context

[57] The Small Business Fair Dismissal Code states as follows:

Summary Dismissal

It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.

Other Dismissal

In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job.

The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.

The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.

Procedural Matters

In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.

A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.

Consideration

[58] On its face, the January incident itself appears not to be a matter of great consequence. However, in the personalised environment of the workplace such interactions take on a wholly different hue than they do to a disinterested observer. True it is that there was no express act of violence, and no physical contact. But the interactions between the Applicant, Mr Lovell and Mr Scott nonetheless were intensely felt, and caused some measure of psychological distress as they formed part of a pattern of interactions. Thus, it is necessary to evaluate the interactions as they were in their particular context, and not relative to other incidents in other workplaces which are of a different nature and origin.

[59] Whilst the interactions which occurred in the course of the January incident exhibited instances of inappropriate language, threatening behaviour and stressful effects, the circumstances cannot be characterised as constituting serious misconduct of the kind envisaged by the Code. Indeed, despite all of its apprehensions about the Applicant’s conduct the employer has nonetheless in the post dismissal period acted to provide some limited work opportunities for the Applicant. If the Applicant had been dismissed summarily for serious misconduct this would be a most unlikely development.

[60] As a consequence, the Code requires that the dismissal be dealt with on the basis of whether:

it can be established that there was a valid reason for the dismissal taking into account the employee’s conduct and capacity

[61] Having had the benefit of hearing the witnesses under cross examination in this matter, I have found the evidence of Mr Bowen and Ms Waugh to be compelling. Neither individual had an interest in the relationship between the Applicant and Mr Scott. Their accounts are therefore more likely to be objective as they are derived from a disinterested body of recollections. Nothing in the manner of their accounts of the exchanges to which they were witness suggested anything other than that they were being truthful to the best of their level of retention.

[62] I add that in Mr Bowen’s case that Mr Scott had made comments about him in staff meeting in December 2013 which had been particularly disparaging and caused him discernible distress. Notwithstanding this, Mr Bowen gave evidence that supported Mr Scott’s construction about the initial exchanges that led to the January incident. I found Mr Bowen’s evidence to be calmly delivered and without any suggestion of fabrication or having been affected (in some manner and for some reason) by hindsight.

[63] The evidence of Mr Bowen critically undermined that of the Applicant in relation to the nature of the exchange that gave rise to the January incident. Mr Bowen’s evidence demonstrated that the Applicant was continuing to address Mr Scott in belittling and socially unpleasant terms. The Applicant had been warned about doing so by Mr Howlett at earlier times.

[64] The warning I refer to is set out in detail above and indicates the employer’s expectations as to the Applicant’s approach to managing Mr Scott and to her behaviour generally.

[65] I make the point that the Applicant claimed that strong language was evident in everyday exchanges in the employer’s workplace. It is another thing, however, to claim that employees in managerial positions commonly used aggressive and expletive rich language personally directed at subordinates. This is a claim that went wholly unsubstantiated. Mr Lovell’s evidence from his experience as the former club manager was to the very same point.

[66] Mr Howlett’s contemporaneous record of conversations with the Applicant demonstrated that he had stressed to her as early as 7 October 2013 (even before the incident of 11 November 2013) that she had “to treat Andrew fairly and if there are performance issues we will deal with them.” Mr Howlett went on to request the Applicant at that time “be fair with [Mr Scott's] hours”, which was a reference to his request at an earlier time for the Applicant to even up Mr Scott’s hours, a request with which the Applicant had not complied.

[67] Mr Bowen’s evidence supports the claims by Mr Scott in his written letter of complaint that the Applicant had again resorted to gratuitous unprofessional and expletive rich comments in dealing with him. The Applicant gave a contrary view of the exchange which was self-serving.

[68] The evidence of Ms Waugh was that contrary to the Applicant’s (and Mr Lovell’s) construction of the events around the January incident, the Applicant had acted purposefully to involve Mr Lovell in a staffing matter. Again, this was a particularly unprofessional course of action.

[69] Having viewed the CCTV footage myself I conclude that the construction of events by the Applicant and Mr Lovell does not accord with their physical movements over the course of the incident in question.

[70] The CCTV footage shows Mr Lovell, the Applicant and Ms Waugh arriving at the manager’s office as a group a short time following Mr Scott’s arrival. The Applicant had a brief exchange with Mr Scott upon opening the door and then stepped back to allow Mr Lovell to dominate the ensuing exchange. Without the benefit of sound and adopting a cautious approach, it is nonetheless evident that Mr Lovell interjected himself into the proceedings whilst the Applicant stood back with her arms crossed and without any effort to intervene. This was hardly the posture of a person surprised by Mr Lovell’s sudden and unexpected insinuation into the incident.

[71] To this I add that the Applicant claimed despite the CCTV footage that she at no time stopped to speak with Mr Lovell in the course of her approach to the manager’s office.

[72] Ms Waugh’s evidence, however, was very much to the contrary. Ms Waugh gave evidence that the Applicant had discussed with Mr Lovell some manner of detail or other in a short conversation when they stopped near the selector’s office on the way to the manager’s office. Ms Waugh, as I have stated above, had a dispassionate perspective on the events and personalities in question. Her evidence in relation to the manner in which she, Mr Lovell and the Applicant moved towards the manager’s office was convincing.

[73] A reasonable inference can also be drawn from the CCTV footage, contextualised by Ms Waugh’s evidence, that the Applicant had made arrangements with Mr Lovell as to how the interactions would proceed with Mr Scott.

[74] The contention by both the Applicant and Mr Lovell that Mr Lovell was merely a passer-by who had coincidentally or unintentionally become involved in the incident (and which had caused surprise to the Applicant) has no credibility at all.

[75] Having heard the evidence in this matter it is apparent that the Applicant had been unable to discipline herself to develop a management repertoire that accommodated her employer’s expectations. Despite the employer’s express warnings in October and November of 2013, the Applicant continued to use language in her interactions with Mr Scott which was contrary to her employer’s directions.

[76] The Applicant does not appear to have appreciated the effect that such language can have on employees when it is utilised in a systematic way and with an aggressive tone, despite being given the opportunity to reflect on those matters and to recast her approach to managing Mr Scott, in particular.

[77] In my view, this conduct alone, which had persisted despite express warnings, was enough in its own right to establish a valid reason for the Applicant’s dismissal.

[78] The Applicant, I add, also conducted herself improperly in so far as she gave misleading evidence to her employer when it sought an explanation for the events in relation to the January incident. The Applicant was not honest in her accounts of the manner in which Mr Lovell was involved in the interaction with Mr Scott.

[79] The Applicant appears also on the evidence to have acted in concert with Mr Lovell, and in doing so involved a non-employee in an internal staffing issue, which was a particularly unprofessional course of action. The CCTV footage gives sufficiently clear evidence that the Applicant simply stood back and allowed Mr Lovell to interact with Mr Scott on a continuing basis and without any effort to manage the unfolding events. Ms Waugh’s account of the involvement of Mr Lovell also demonstrates that the Applicant had solicited his involvement for her own personal ends.

[80] In summary, in the end the Applicant proved herself to be an untrustworthy employee who could not be relied upon to act professionally in the workplace, or to exhibit the empathetic perspective required of a manager.

[81] The employer therefore had a valid reason for the Applicant’s dismissal.

[82] In accordance with the Code, the Applicant was provided with opportunities to rectify her conduct. These opportunities are matters of record and form part of the evidence in these proceedings. The employer provided a completed checklist as part of its materials for these proceedings.

[83] There are no other requirements under the Code in relation to a dismissal for reasons other than summary dismissal by a small business employer.

[84] That said, the employer put on further submission in relation to other matters arising under s.387 of the Act.

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

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

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

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

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

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

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

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

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

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

[86] Other than in relation to whether or not the employer had a valid reason for the dismissal, the respondent make submissions under ss.387(b)-(h) of the Act. I will make comment on each of these below.

(b) whether the person was notified of that reason

[87] The Applicant had been notified by way of written correspondence on 22 January 2014 that she was to attend a formal meeting on the following Friday, 24 January 2014. She was advised by way of that correspondence that the meeting was for the purposes of discussing her work performance and conduct and she was invited to bring a support person to attend the meeting. At this meeting the Applicant was informed of the complaint made against her by Mr Scott in relation to the January incident.

[88] The Applicant was required to provide explanations in relation to the range of matters set out above.

[89] This process satisfies the requirements of the subsection.

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

[90] As set out above, the Applicant was informed about the claims made against her and provided with an opportunity to provide her version of events. The Applicant did contend that she did not have an opportunity to condition her responses in light of the CCTV footage or the wider witness evidence. But the subsection does not impose such an onus upon an employer. In any event, given the Applicant’s evidence in these proceedings, I very much doubt whether any additional information she may have provided would have materially altered the employer’s findings, let alone (subsequently) those of the Commission. That is, nothing the Applicant put in her defence on the basis of the totality of the employer’s evidentiary case in the course of the hearing persuades me that events may have taken a different course had she been exposed to such evidence at an earlier point.

(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

[91] There was no unreasonable refusal by the employer to allow the Applicant to have a support person and therefore the requirements of the subsection are not relevant to my considerations (so far as they are relevant in any event given that this is a dismissal that is subject to the small business code).

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

[92] This matter concerned the conduct of the Applicant (about which she was warned) and was not related to the performance of her duties as such. This subsection is therefore not relevant to my considerations, as they are.

(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

[93] I have previously indicated that the employer is a small business employer for purposes of section 23 of the Act. Notwithstanding this, the dismissal was effected in a professional manner and with regard to providing the Applicant with procedural fairness. Mr Howlett had some years of prior experience in a human resource function, and this no doubt assisted him.

(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

[94] The employer does not employ any dedicated HR managers or advisors or possess any dedicated in-house expertise for the purposes of assisting in the management of employee issues. As I have mentioned above, despite these deficiencies the dismissal was given effect with due regard to procedural fairness for the Applicant.

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

[95] The Code does not require me to consider extraneous matters to those detailed within the Code. It is nonetheless the case that the Applicant is a woman who is 56 years of age and would find it difficult to obtain alternative employment.

[96] The Applicant claimed that she had made numerous applications through SEEK to obtain alternative employment but had been unsuccessful. It may be the case that the dismissal will have a harsh effect on the Applicant (though she has been given some limited work in a different work area by the employer, it would appear). I do note that the Applicant appears in recent months to have obtained new employment (seemingly around or in the vicinity of her previous level of remuneration).

[97] Equally so, as the employer pointed out, the Applicant cannot expect to draw favour in circumstances where she has spoken in harsh terms about her own manager, not given an unreserved commitment to rectifying her behaviour when warned, and has acted unprofessionally in her dealings with subordinate staff in the manner in which the evidence illuminates, and not been fully frank during an investigation.

Conclusion

[98] On the basis of the considerations applicable under the Small Business Fair Dismissal Code the Applicant was fairly dismissed because there was a valid reason for her dismissal.

[99] In so far as it is argued that the wider requirements of s.387 of the Act apply, the Applicant was not harshly, unjustly or unreasonably dismissed, either.

[100] The application under s.394 of the Act is therefore dismissed.

SENIOR DEPUTY PRESIDENT

Appearances:

Ms G. Lawson, Counsel, for the Applicant

Mr W. Lee, of Clubs Queensland, for the Respondent

Hearing details:

Brisbane

2014

10 July

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