Ms Patricia Bucknor v Aero-Care Flight Support Pty Ltd

[2013] FWC 6559

[2013] FWC 6559

The attached document replaces the document previously issued with the above code on 4 September 2013.

Carolyn Jurott

Associate to Deputy President Asbury

Dated 5 September 2013

[2013] FWC 6559

FAIR WORK COMMISSION

DECISION

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

Ms Patricia Bucknor
v
Aero-Care Flight Support Pty Ltd
(U2012/12280)

DEPUTY PRESIDENT ASBURY BRISBANE, 4 SEPTEMBER 2013

Application for unfair dismissal remedy - arbitration.

BACKGROUND

[1] Ms Patricia Bucknor applies under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy in respect of her dismissal by Aero-Care Flight Support Pty Ltd (Aero-Care). Aero-Care contracts with airlines at Brisbane airport and other regional airports, to provide services associated with ground operations including checking of passengers, loading baggage and cleaning aircraft.

[2] Ms Bucknor was employed by Aero-Care on 12 February 2009 in the Cairns Airport, initially as a casual Airline Services Agent, and was promoted to the position of Airport Services Co-ordinator on 2 August 2009. In this capacity Ms Bucknor’s duties included responsibility for day to day management of employees at lower levels, involving allocation and supervision of tasks and ensuring compliance with standard operating procedures.

[3] The reason given by Aero-Care for the dismissal of Ms Bucknor is repeated inappropriate behaviour in breach of Aero-Care’s Policy in relation to Bullying, Harassment and Discrimination, following a final warning issued in May 2012 in relation to the same behaviour. This is said to amount to serious misconduct and to provide a valid reason for dismissal.

[4] Ms Bucknor contends that correct procedures were not followed in relation to the claims against her and that she did not receive a final warning. Ms Bucknor also contends that previous incidents of alleged bullying relied on by Aero-Care are without substance and that she has been treated differently to other employees who were also alleged to have engaged in bullying behaviour.

PROCEDURAL MATTERS

[5] Ms Bucknor’s unfair dismissal application was made on 13 August 2012 within the time then required in s.394 (2) of the Act. Ms Bucknor is a person protected from unfair dismissal as defined in s.382 of the Act. Aero-Care is not a small business and the dismissal was not a redundancy.

[6] The matter was dealt with by way of a hearing, as it was considered that this was the appropriate course, taking into account the matters set out in s.399 of the Act and the views of the parties. Ms Bucknor was represented by her husband, Mr Fawcett. Permission was granted for Aero-Care to be represented by Mr Houlihan, on the basis that it would enable the matter to be dealt with more efficiently, taking its complexity into account.

[7] Evidence in support of the Application was given by Ms Bucknor. Witness statements in support of Ms Bucknor were provided by Ms Cynthia Kelly, former employee of Aero-Care and Ms Rebecca Carrier-Hubbard, employee of Aero-Care. Neither attended the hearing. Evidence for Aero-Care was given by Mr Daryl Blake, General Manager - People and Performance; Ms Valerie Ladlay, Brisbane Airport Manager; Mr Gregory Shelley, General Manager - Employee Relations; and Mr Byron Colborne, Regional Manager Airports.

LEGISLATION

[8] In deciding whether a dismissal is harsh, unjust or unreasonable, FWC must consider the evidence against the framework of the criteria set out in s.387 of the Act as follows:

“387 Criteria for considering harshness etc.

(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 the dismissal; and

(e) If the dismissal related to unsatisfactory performance – 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 the FWC considers relevant.”

[9] The criteria direct attention to the reason for the dismissal, the process followed in effecting it and other matters particular to the employer or the employee. A dismissal may be unfair because it meets one or more of the following descriptions:

Harsh - because of its consequences for the personal and economic situation of the employee, or because it is disproportionate to the gravity of the misconduct;

Unjust - because the employee was not guilty of the misconduct on which the employer acted; and/or

Unreasonable - because it was decided on inferences that could not reasonably have been drawn from the material before the employer. 1

[10] The applicant for an unfair dismissal remedy bears the onus of establishing that the dismissal is unfair. However, the starting point is whether there was a valid reason for the dismissal, which necessarily focuses attention on the validity of the reasons given by the employer at the time of the dismissal or reasons relied on by the employer to defend the application for an unfair dismissal remedy. In this sense the employer bears the onus of establishing that there was a valid reason for dismissal. 2

[11] If the reason for the dismissal is based on the conduct of the employee, the Commission must determine whether the conduct occurred. 3 A valid reason for dismissal is “sound, defensible or well founded” and not “capricious, fanciful, spiteful or prejudiced.”4 The reason for dismissal must also be defensible or justifiable on an objective analysis of the relevant facts5, and the validity is judged by reference to the Tribunal’s assessment of the factual circumstances as to what the employee is capable of doing or has done.6

[12] The question of whether there is a valid reason for the dismissal is significant but not determinative, and is only one of the criteria for consideration in deciding whether a dismissal is unfair. The criteria specified in s.387, including any matter the Commission considers is relevant, must be weighed for the purposes of considering whether a particular dismissal was harsh, unjust or unreasonable.

[13] It may be that where the employer demonstrates that the employee engaged in serious misconduct, procedural deficiencies will be outweighed so that on balance, the dismissal is not unfair. An employee who engages in an act of misconduct may also be found to have been unfairly dismissed because the misconduct was not sufficiently serious to justify dismissal or to outweigh deficiencies in procedural fairness or because of other extenuating circumstances particular to the dismissed employee. A dismissal may also be unfair because of the impact on the particular employee.

EVIDENCE

[14] Aero-Care operates an internal communication system known as Aero-Net. This system appears to be used by managers of Aero-Care to log comments about interactions with employees including concerns about their conduct. In support of the bullying allegations against Ms Bucknor, Aero-Care points to various entries made on her Aero-Net Record from 30 January 2012 to her dismissal on 30 July 2012.

[15] Aero-Care submits that there are two separate episodes which lead to the dismissal of Ms Bucknor. These were described as events that lead to her being suspended from 22 May to 4 June 2012 and events from 4 June 2012 until the termination meeting on 27 July 2012. In relation to the first episode, reference is made to entries on Ms Bucknor’s Aero-Net log made by Mr Rigby which can be summarised as follows:

● 30 January 2012 comments about Mr Bucknor’s failure to inform Mr Rigby about a medical emergency on arrival that resulted in the death of a passenger and a discussion where Ms Bucknor was informed that Mr Rigby needed to be aware of such occurrences.

● 10 April 2012 record of a counselling session during which Mr Rigby discussed with Ms Bucknor a complaint about a hostile approach of another staff member, and told Ms Bucknor that she had engaged in the same behaviour.

● 24 April 2012 complaint from a team member about how Ms Bucknor had spoken to her, but not discussed with Ms Bucknor at that time, because she had gone on leave.

● 8 May 2012 discussion about complaint of 24 April; Ms Bucknor’s aggressive and confrontational approach; requirement for Ms Bucknor to log all individual discussions with team members; and failure to undertake administrative tasks before going on annual leave.

[16] Aero-Care submits that the incidents on 10 April, 24 April and 8 May involved Ms Bucknor playing “mind games” and intimidating other staff members, and lead to Ms Bucknor being stood down on full pay pending investigation into the allegations. It was also submitted that there was a further incident on 18 May 2012. There is no Aero-Net record of this incident in evidence and no other evidence about it. The only event that occurred on 18 May 2012 was that Ms Bucknor was stood down.

[17] In relation to the first of these entries, Mr Shelley said that it did not include additional facts which were that a passenger died in his hotel room after being refused boarding, and Ms Bucknor told a customer service agent that it was the agent’s fault that the passenger died alone in a hotel room and away from his family, upsetting the agent. Mr Shelley also said that he resolved this matter to his satisfaction at the time it arose by having a discussion with the customer service agent and did not interview Ms Bucknor or include a reference to this particular aspect of the matter in her Aero-Net record.

[18] Mr Shelley said that as a result of these entries he became aware of concerns about Ms Bucknor’s managerial style, particularly with respect to her treatment of co-workers. Mr Shelley contacted Mr Rigby with respect to these entries and was made aware of further allegations that Ms Bucknor had not followed the dispute procedure in the Aero-Care Enterprise Agreement and decided to escalate the matter. An email was sent to Ms Bucknor on 18 May 2012, alleging that she had acted in contravention of her contract of employment, and disregard for confidentiality and fiduciary obligations.

[19] The email goes on to assert that while Ms Bucknor has every right to hold an opinion about the Company, and that she is welcome to express such opinion, it should only be expressed to management. It is also alleged that Ms Bucknor seriously and wilfully misconducted herself by “corresponding confidential information at large with other staff members”. Ms Bucknor was requested to attend a meeting to discuss those matters and was stood down with pay and directed not to contact staff members while the matter was being dealt with. 7

[20] Ms Bucknor said that the reason she was stood down was that she gave advice to a subordinate employee with respect to his options for getting a fair hearing of his bullying and harassment claims. In cross-examination a series of questions was put to Ms Bucknor about the details of this matter, it emerged that she gave advice and assistance to a former employee of Aero-Care about how to formulate a complaint to management of Aero-Care about bullying and harassment that the former employee alleged he had been subjected to by his managers. In doing so, Ms Bucknor communicated with the former employee’s girlfriend.

[21] Ms Bucknor said that in communicating with the former employee and his girlfriend she did not disclose confidential information involving other employees of Aero-Care but rather provided information that was publicly known and gossiped about. Ms Bucknor disputed the proposition put to her in cross-examination that this conduct constituted bullying on the basis that she was favouring one employee over other employees, by assisting the employee with the complaint. Ms Bucknor agreed that she had been an advocate for a number of employees who had alleged that they were being bullied. Ms Bucknor also agreed that she continued to answer questions from the employee to whom she had provided the advice that resulted in her being stood down, during the period of the stand down.

[22] Mr Shelley said in his oral evidence that the issue was that Ms Bucknor had provided information prepared on her work computer about other employees of Aero-Care who had ceased employment, to assist the girlfriend of the former employee to prepare his complaint. Mr Shelley’s investigation found a draft of the letter and an email chain in relation to it, on Ms Bucknor’s work computer. Mr Shelley maintained that this conduct was bullying and was in breach of Aero-Care’s Bullying and Harassment Policy.

[23] A meeting was held with Ms Bucknor on 22 May 2012 to discuss the matters raised in the email of 18 May. Mr Shelley said that at this meeting he put various allegations to Ms Bucknor including that there had been complaints about her management style, such that it constituted bullying under the Aero-Care policy, and that Ms Bucknor denied these allegations and said that there were cliques in the Cairns operation comprising people who were out to get her.

[24] In response to a question in cross-examination about whether specific incidents of bullying were discussed, Mr Shelley said that the whole meeting was about bullying, but agreed that the only specific incident addressed at the meeting was related to the allegations about provision of confidential information. In response to a question about why the incidents recorded in Ms Bucknor’s Aero-Net log on 10 April, 24 April and 8 May were not discussed at the meeting, Mr Shelley said that the meeting did not go in that direction and Ms Bucknor had raised other concerns that he deemed to be valid.

[25] Ms Bucknor said that during this meeting she discussed the fact that she was required to respond to complaints of bullying and harassment and that she had assisted the employee with his complaint by suggesting that he email Mr Shelley, because he was getting nowhere with management in Cairns. Ms Bucknor also said that on several occasions she advised personnel from head office that there had been complaints of bullying and harassment in Cairns and nothing was being done about it.

[26] Mr Shelley sent an email to Ms Bucknor on 24 May 2012 in the following terms:

“Hi Patsy
...
I wanted to assure you that we are looking seriously at the matters you have raised during our meeting and, aside from the fact that much change at all levels is required, I am not satisfied to the extend [sic] that I am prepared to finalise the matter at this point. In accordance with my letter of last week, I confirm that you are not required to attend work until we confirm with you.

I trust you [sic] appreciation that we are taking the matter seriously hence we have some more to do.” 8

[27] After concluding his investigation, Mr Shelley decided that Ms Bucknor had breached the terms of the dispute settlement procedure and that there were grounds to establish that she had engaged in bullying behaviour. Mr Shelley decided not to terminate Ms Bucknor’s employment due to her otherwise good performance and due to her length of service, instead determining that a first and final warning as to the conduct expected of Ms Bucknor was the most appropriate sanction. Mr Shelley wrote to Ms Bucknor on 1 June 2012 stating that:

● The meeting on 22 May had addressed misconduct specifically where Ms Bucknor had not followed the prescribed Dispute Resolution Procedure in relation to a subordinate employee’s complaint, but had escalated that complaint;

● Notwithstanding Ms Bucknor’s admission that she had acted it the manner alleged, Mr Shelley was prepared to give her the benefit of the doubt and did not intend to terminate her employment;

[28] The letter also states that:

“Furthermore, Aero-Care prides itself on having a workplace free from any form of bullying and harassing behaviour. Please remember that as a leader in our organisation, you are responsible for setting the standard for our team to achieve. A leader must be inspirational and consistent and not subject to steadfastly upholding rules for some and not others. As a long standing and integral member of the Cairns leadership team, you are expected to lead by example, displaying support for a harmonious team environment, and eliminating negativism at every level, nothing less is acceptable. You are also required to display respect for every person within the Aero-Care environment, including clients and passengers.

I do caution you that, in the event that you were to further breach Company policy in the application of your duties, we may take action to cease your employment at that time...” 9

[29] Ms Bucknor responded to the letter by email dated 4 June 2012 and said she was confused about the paragraph referring to bullying insofar as it obviously referred to her, and that these matters had never been discussed with her as failings before. The email also details allegations of gossip about her return to work and concludes with a statement that Ms Bucknor looks forward to moving forward. Ms Bucknor maintained that she did not receive a response to this email.

[30] Mr Shelley said in his witness statement that he responded to Ms Bucknor’s email of 4 June by email sent on 12 June and that his response was appended to his witness statement as Annexure F. There was no Annexure F appended to Mr Shelley’s witness statement, but a copy of an email said to be the response, dated 12 June 2012, was tendered at the hearing. The email states that Mr Shelley has given Ms Bucknor some space prior to responding and asks how Ms Bucknor is going and concludes with the following:

“I trust you can now see that the last motivation we ever would have is to ensure someone ‘fails’ or have a ‘cloud’ hanging over any person in our organisation...I am, however keen for you to get back into the swing of things and address the matters pointed out in my letter, as it is readily agreed by all that these are valid matters that require ongoing attention, not just a little touch up now and then. Both Paul and yourself are readily positioned and charged with the authority and obligation to resolve these matters and, of course, myself, Mick and Lincoln etc...are here to help.

Lastly, I did receive a call from one of your Supervisors, however this was after your return to work and some of the matters raised were a little contradictory. As we discussed, it is very easy to buy into the rumour mill and I ask you not to buy into it, even when the rumours concern you.

I would be happy to know how you are settling back in and how we are tracking to achieve all of our goals - most of which are very tightly aligned.”

[31] Ms Bucknor maintained that she did not receive this email. The second episode of bullying alleged by Aero-Care followed Ms Bucknor’s return to work on 4 June 2012. Aero-Net records appended to Mr Shelley’s witness statement indicate that there was a discussion on 4 June 2012 between Ms Bucknor, Mr Rigby and Ms Ladlay, who was requested by Mr Shelley to offer Ms Bucknor ongoing guidance and assistance.

[32] Ms Ladlay’s note of the discussion, as placed on Ms Bucknor’s Aero-Net record, indicates that a number of matters were canvassed and Ms Bucknor agreed that she was frustrated when the team did not get things right, and jumped in to take over rather than providing support or guidance. The records also indicate that there was a discussion with Ms Bucknor about a complaint from a customer, Skytrans, in which it was stated that while Ms Bucknor had followed correct procedure, her delivery and how she did it was questionable. Ms Bucknor was told that she needed to be calm and professional in front of passengers and staff. Ms Bucknor generally agreed with the accuracy of Ms Ladlay’s note and that Ms Ladlay had told her to change her behaviour.

[33] Ms Ladlay also said that she gave Ms Bucknor a copy of Aero-Care’s bullying and harassment policy, which defines bullying as including:

“...when people repeatedly and intentionally use words or actions against individuals or a group of people to cause distress and risk to their wellbeing...

● Repeated hurtful remarks or attacks...
● Playing mind games, ganging up...or other types of psychological harassment...
● Intimidation...” 10

[34] Mr Rigby’s note of the discussion states that he detailed the Skytrans complaint to Ms Bucknor and that her response was to dispute the accuracy of most matters. Mr Rigby said that he emphasised the need for Ms Bucknor to be courteous and positive in her interactions with customers and staff. Mr Rigby also records that Ms Bucknor expressed her disappointment at gossip about her absence and said that Mr Rigby could have done more to stop this from occurring.

[35] On 26 June 2012, Mr Rigby records that he received a telephone call from Ms Bucknor raising allegations that two employees were spreading negativity through the ramp team. Mr Rigby states that this phone call and staff logs presented by Ms Bucknor indicated that she had targeted the two individuals in a negative and incorrect fashion, notwithstanding that there is foundation to the claims. Mr Rigby further states that Ms Bucknor becomes “target fixated on individuals with the goal to remove them from the workplace” and while this may be ultimately necessary there is a need to follow correct procedures.

[36] Ms Bucknor said that she returned to work on 4 June 2012 and had a meeting with Mr Rigby and a mediator from another airport in the Aero-Care network. According to Ms Bucknor, the purpose of the mediation was to ensure her smooth transition back into the workplace as she had made claims about Mr Rigby’s “failings”. Ms Bucknor said that during this meeting, a letter was produced setting out a complaint made by a customer of Aero-Care against Ms Bucknor and other staff members regarding “certain instances and behaviours”. This complaint was discussed and Ms Bucknor said that she responded to each of the matters to the satisfaction of the mediator.

[37] Ms Bucknor also said that she was quite shocked to hear staff members had decided to complain about her to a customer of Aero-Care and made a conscious effort to ensure that staff members, in particular those working for the customer, could not take offence at anything she said or did. Ms Ladlay gave evidence about a discussion she held with Ms Bucknor on 28 June 2012 in relation to a boarding gate error made by an employee. Ms Ladlay sent an email to Mr Tabone on 28 June 2012 indicating that there was an “undercurrent of unease” between Ms Bucknor and Mr Rigby, and that both Ms Bucknor and Mr Rigby had not taken advantage of support that they had been offered.

[38] Mr Coleborne said that in early to mid July he became aware of complaints against Ms Bucknor in relation to allegations of bullying, and spoke to Ms Bucknor on 3 July 2012 about complaints that had been received up to that date. The Aero-Net entries appended to Mr Coleborne’s witness statement appeared to be incomplete. Those attached to Mr Shelley’s witness statement indicate that Mr Coleborne had a discussion with Ms Bucknor about an email from an employee who had recently resigned and complained that Ms Bucknor had engaged in a series of behaviours involving sharing private information about employees with other employees; belittling and making derogatory comments about employees; inappropriate discussions with employees in front of passengers; and negativity about tasks completed by employees.

[39] According to Mr Coleborne’s notes in the Aero-Net record, Ms Bucknor agreed with the comments but said that the incidents had occurred prior to her being stood down. Mr Coleborne notes that that there are no real dates on the email and said that he asked Ms Bucknor to take away the details and ensure that this management style was not used again. Mr Coleborne said that he also discussed a comment Ms Bucknor had written on the bottom of an email that Mr Rigby had forwarded to management, wherein she stated: “I guess the company could hang me once again for this???”. Mr Coleborne said that he told Ms Bucknor that this was not acceptable from a person at her level.

[40] There was also a report of an incident where Ms Bucknor was alleged to have responded to an employee who asked if Ms Bucknor was going to the gate with her by saying: “No! Don’t you know what you are doing?” and “You’ve done the training you will be fine”. Mr Coleborne notes that this comment was made in front of a customer representative who stated that it was harsh. Mr Coleborne said that he discussed this incident with Ms Bucknor on 4 July 2012 and he explained to her that this was the communication style he had been referring to in their discussion on 3 July 2012. Ms Bucknor said in response: “Why don’t I just leave and make everyone’s life easier?” to which Mr Coleborne responded that he was coaching Ms Bucknor and that a simple question should be dealt with in a respectful manner regardless of whether the employee who asked it had questions raised about her work performance. Ms Bucknor responded by saying that she was being ganged up on but acknowledged the message given by Mr Coleborne.

[41] Under cross-examination, Ms Bucknor said that she made the comment to the employee in circumstances where she had been at work for 12 hours, and apologised to the employee a couple of days later. Ms Bucknor also said that this incident involved only one comment and was not bullying.

[42] Mr Coleborne said that subsequent to the discussion with Ms Bucknor on 4 July 2012, he received further complaints about her conduct from current and former employees of Aero-Care in Cairns, and forwarded these to Mr Tabone. Those emails, appended to the statement of Mr Blake relate to the following alleged incidents:

● A file note dated 12 July 2012 of a telephone conversation with the mother of a former employee and an email from that person dated 10 July 2012 asserting that her daughter resigned from Aero-Care after 7 days because of Ms Bucknor’s bullying, and that her daughter had been coming home from work exhausted and physically ill as a result of Ms Bucknor’s behaviour.

● An email dated 12 July 2012 from an employee who ceased employment on 16 June 2012 stating that: he or she was tired of being spoken to “like an animal” by Ms Bucknor; complaining of being reprimanded in front of other staff; having confidential information passed on; employees being told that monkeys could do their jobs; Ms Bucknor stating that she was rude because no-one would listen to her; bullying; and that Ms Bucknor spoke to passengers in the same way.

● An email of 16 July 2012 from an employee who claimed to have “emotionally broken down” at work that day and complaining about both Mr Rigby and Ms Bucknor and stating in relation to Ms Bucknor that she causes stress due to inappropriate behaviour towards staff by engaging in verbal abuse.

● An email of 17 July 2012 from trainer complaining about Ms Bucknor conducting training sessions without consultation with the trainer and providing incorrect information to trainees, making particular reference to an incident on 29 June 2012.

● An email of 19 July 2012 from an employee complaining that she had applied for leave on 29 June 2012 and the application had been refused by Ms Bucknor on the basis that other employees were also on leave at that time when this was not correct and of roster inefficiencies associated with too many inexperienced staff being rostered to work. The employee also alleges that on 19 July 2012 Ms Bucknor yelled at her when she told Ms Bucknor that Mr Rigby had changed the rosters at her request. The employee further alleged that she was being rostered to work excessive hours.

[43] Ms Bucknor was stood down on 23 July 2012 and asked to attend a meeting on 25 July 2012. There is no evidence that the request to attend the meeting was in writing, or what Ms Bucknor was told about the subject matter of the meeting. It is clear that Ms Bucknor knew that there were complaints about her, because her evidence was that she sent an email to Mr Tabone asking for more information about who had made the complaints and what the complaints involved. Mr Tabone responded to this request and attached excerpts from some of the emails received by the Company. None of these emails were in evidence.

[44] The meeting on 25 July 2012 was attended by Ms Bucknor and her support person Mr Fawcett, Mr Tabone and Mr Blake. Mr Blake’s account of the meeting indicates that Ms Bucknor was informed that since her last counselling and stand down, further complaints had been made against her about bullying. Ms Bucknor responded by challenging whether she had been stood down for bullying and said that it had been “turned into” bullying. Mr Blake said that Mr Tabone detailed the complaints to Ms Bucknor and sought her response. Ms Bucknor acknowledged that she had previously been spoken to by Ms Ladlay about doing things the Aero-Care way with respect to people and values but said that this meant nothing to her and she had just sat and stared at Ms Ladlay.

[45] According to Mr Blake, Ms Bucknor also acknowledged that she had been spoken to by Mr Shelley and Mr Coleborne about her behaviour with staff. During the discussion Ms Bucknor described herself as brash and to the point. Ms Bucknor also said that staff who made complaints were “babies” and described them as “the negative nine”. Mr Blake said that after a 45 minute discussion the meeting was adjourned for 15 minutes during which he and Mr Tabone decided that in light of earlier warnings and the support Ms Bucknor had received, her employment would be terminated.

[46] Ms Bucknor was informed of her dismissal and that she would be paid four weeks in lieu of notice as well as her accrued entitlements. Mr Blake said that Ms Bucknor stated she would resign her employment for a payment of three months wages in addition to her accrued entitlements. This proposition was rejected by Mr Tabone and Mr Blake and Ms Bucknor was dismissed.

[47] Ms Bucknor said that during the meeting she asked whether she could respond to the allegations, and Mr Tabone said that she could. Ms Bucknor said that she either confirmed or denied each allegation and provided context to those allegations she denied. Ms Bucknor said that she was also able to identify some of the anonymous complaints and can categorically state that they referred to instances before 17 May 2012 and in some instances were more than six months prior to that date.

[48] Ms Bucknor also said that there were a series of complaints about conduct after 2 July 2012, and her request to see evidence about these complaints was denied. Ms Bucknor said that she suggested that these issues be the subject of mediation, and also asked why the complaints had been made months after the alleged incidents and at or around the same time, suggesting that there had been collusion.

[49] Ms Bucknor said that the meeting of 25 July 2012 concluded with Mr Tabone advising her that she was to be dismissed with immediate effect, and paid four weeks pay in lieu of notice. Ms Bucknor made a counter offer to the effect that if she was paid three months pay she would resign, and was told that Mr Tabone would get back to her. Ms Bucknor said that Mr Tabone later telephoned her and told her that her counter offer had been rejected, and as she was taken off guard, she responded by saying: “OK”. Ms Bucknor tendered an email sent to Mr Tabone on 27 July stating:

“Contrary to our telephone conversation the other day, I would like to return to our original offer of my resignation plus 3 months salary and all entitlements, as opposed to your suggestion of my resignation, one months salary plus entitlements.” 11

[50] Ms Bucknor also tendered an email from Mr Tabone in response stating that Ms Bucknor had decided to revoke her acceptance of the terms of an agreement and that he would revert to his original position that the company would terminate her employment and pay her notice in accordance with her employment contract. 12

CONSIDERATION
Did Ms Bucknor engage in bullying and harassment so that there was a valid reason for her dismissal?

[51] Aero-Care submits that there was a valid reason for the dismissal and that Ms Bucknor was dismissed for bullying and harassment of staff under her control, which constituted serious misconduct. Aero-Care also submits that this misconduct occurred after Ms Bucknor was warned on 1 June 2012 about similar behaviour.

[52] After considering the evidence I am unable to accept that Ms Bucknor engaged in conduct which could be described as bullying and harassment such that there was a valid reason for her dismissal. I accept that Ms Bucknor has what she described as “an abrasive personality”. I also do not doubt that there were occasions when she was rude to colleagues and subordinates and spoke to them inappropriately. However, I am also of the view that Aero-Care has not established to the requisite degree that this conduct constituted bullying and harassment as described in its policy.

[53] There is a significant disconnect between the evidence given by witnesses for Aero-Care and the submission that Ms Bucknor’s bullying behaviour was sufficiently serious to justify her dismissal. On no view of that evidence, can the incidents between 30 January and 8 May 2012, described in Ms Bucknor’s Aero-Net record, properly be described as Ms Bucknor “playing mind games” or intimidating other staff members. These are serious allegations, and are not supported by the evidence.

[54] Mr Shelley said that the first incident on 30 January 2012 was not discussed with Ms Bucknor, and was resolved to his satisfaction. In circumstances where Mr Shelley had no compunctions about raising issues of concern about Ms Bucknor’s conduct, and recording these matters in the Aero-Net log, if he did not view the incident of 30 January 2012 as sufficiently serious to discuss with Ms Bucknor, it is not an incident that can provide a valid basis for dismissal.

[55] The discussion with Ms Bucknor on 10 April 2012 did not deal with any specific incident involving Ms Bucknor but was related to an incident with another staff member, which Mr Rigby used as a general analogy to illustrate the kind of behaviour he expected of Ms Bucknor. The incident on 24 April 2012 appears to have been a one off incident and the discussion about it on 8 May 2012 did not involve any further incidents. Ms Bucknor’s uncontested evidence was that, as at 24 May 2012, there was one specific incident where Ms Bucknor spoke rudely to an employee, and a general discussion about the way in which she dealt with colleagues and subordinates. These matters can hardly be described as Ms Bucknor playing mind games and engaging in intimidating behaviour.

[56] It is also clear that incidents between 30 January 2012 and 8 May 2012 listed in the Aero-Net record, did not play any role in Ms Bucknor being stood down on 18 May 2012. The email of that date informing Ms Bucknor that she was stood down makes no reference to any of those incidents. Mr Shelley’s oral evidence was that the meeting on 22 May 2012, at which the reasons for Ms Bucknor being stood down were discussed, did not cover those incidents, because in Mr Shelley’s words, “it did not go in that direction”.

[57] If these incidents were so significant, they would have been clearly articulated in the email informing Ms Bucknor that she was being stood down, and/or specifically dealt with at the meeting on 22 May 2012. The failure to discuss these incidents with Ms Bucknor at the meeting of 22 May, indicates that they were not considered to be bullying in breach of Aero-Care’s policy.

[58] The email of 24 May 2012 to Ms Bucknor from Mr Shelley is also not suggestive of the meeting of 22 June focusing on allegations of Ms Bucknor being a bully. Rather, that email suggests that Ms Bucknor had raised a number of matters which were believed to have some validity and to justify further consideration by Aero-Care. The email is consistent with Ms Bucknor’s evidence that she made allegations about other persons engaging in bullying.

[59] It is also the case that when Ms Bucknor received the letter of 1 June 2012 setting out the outcomes of the meeting on 22 May, she responded immediately by sending an email querying the inclusion of a reference to bullying. This indicates that Ms Bucknor did not understand that the meeting of 22 May was about allegations of her being a bully. Leaving aside the question of whether or not Ms Bucknor received Mr Shelley’s response to her email, that response did nothing to clarify the situation. In particular, the response does not assert that the reference to bullying relates to Ms Bucknor or that she has misunderstood the subject matter of the meeting on 22 May, and is not responsive to the matters raised by Ms Bucknor.

[60] The only conclusion I can draw from the evidence is that the stand down and the meeting of 22 May 2012 related to allegations that Ms Bucknor had assisted another employee to make a complaint about bullying and had provided his girlfriend with confidential information. It is also probable - on the basis of Ms Bucknor’s evidence, and the letter sent to her on 24 May 2012 assuring her that issues she raised were being considered - that Ms Bucknor convinced Mr Shelley that there were other issues that needed to be addressed in the Cairns operations of Aero-Care.

[61] In relation to what was termed the second episode leading to Ms Bucknor’s dismissal, I accept that there are some serious issues raised in the complaints about Ms Bucknor. However, I also have some concerns about these complaints. They all appear to refer to at least some matters that occurred in June. This raises a question as to why the complaints have been made in a one week period from 12 to 19 July 2012. While the timing of the complaints may be coincidental, it would appear to be a matter weighing against a conclusion by Aero-Care that Ms Bucknor’s conduct in connection with those matters was so serious that it warranted dismissal. The timing of the complaints is an issue that should have been further investigated.

[62] I am also of the view that these matters were considered in conjunction with the earlier matters, which for reasons set out above, do not constitute bullying as described in Aero-Care’s policy. When the matters described as the second episode are considered in the proper context, they are not sufficiently serious to justify dismissal. It is also apparent that some of the complaints raised issues with the conduct of both Ms Bucknor and Mr Rigby and Ms Ladlay’s email of 28 June 2012 to Mr Tabone suggests that Mr Rigby was part of the problem that Aero-Care was having with staff issues at Cairns Airport. In relation to the discussion between Mr Coleborne and Ms Bucknor about the incident on or around 4 July 2012, Ms Bucknor provided an explanation for her conduct and gave evidence that she apologised to the employee concerned.

[63] I accept that the matters raised in these complaints were cause for concern, but at best, they should have resulted in Ms Bucknor being given a warning. I am unable to accept that Ms Bucknor’s conduct provided a valid reason for her dismissal.

Was Ms Bucknor notified of the reason for her dismissal?

[64] Notification of the reason for dismissal, is fundamentally linked to the principles of natural justice and procedural fairness encapsulated within the considerations in s.387, and underpins the ability of a person whose job is at risk, to respond to allegations and to attempt to convince the employer that the reasons are not a basis for dismissal. An employee cannot properly defend allegations or have a reasonable opportunity to convince the employer that the allegations do not constitute a reason for dismissal in circumstances where the employee is not provided with sufficient detail of the allegations.

[65] It is clear from Ms Bucknor’s evidence that she was told that the reason for her dismissal was bullying and harassment. It is also clear that when Ms Bucknor requested details of the allegations she was provided with information about a number of those allegations to enable her to respond to them.

[66] However, Ms Bucknor was not provided with information in relation to the allegations about her conduct from 2 July 2012 onwards. Ms Bucknor’s evidence, which was not contested, was that she asked to see details of these complaints and that she was not provided with that information prior to or at the meeting of 25 July 2012 when she was dismissed. It is also clear from Ms Bucknor’s evidence that the information she was given at the meeting was not sufficient for her to mount a proper defence against the allegations of conduct for which she was dismissed.

[67] Accordingly, I do not accept that Ms Bucknor was notified of the reason for her dismissal.

Was Ms Bucknor given an opportunity to respond to the reasons for her dismissal?

[68] In circumstances where I do not accept that Ms Bucknor was notified of the allegations about her conduct after 2 July 2012, I am unable to accept that she was given an opportunity to respond to the reasons for her dismissal.

Did Aero-Care unreasonably refuse to allow Ms Bucknor to have a support person present to assist at any discussions relating to dismissal?

[69] It is not in dispute that Ms Bucknor was allowed to have a support person at the meeting in relating to her dismissal, and that Mr Fawcett attended with her for that purpose.

Was Ms Bucknor warned about any unsatisfactory performance before the dismissal?

[70] For the reasons set out above, I am of the view that Ms Bucknor did not engage in misconduct such that dismissal was warranted, and that the issues with her conduct were really matters that come within the meaning of unsatisfactory performance.

[71] Ms Bucknor was warned in connection with the allegations that she had breached confidentiality as set out in the letter from Mr Shelley dated 1 June 2012. Although that warning was not about bullying, I am of the view that Ms Bucknor should have been on notice from that point, that any breach of Aero-Care’s policies or procedures could result in the termination of her employment, and that this was sufficiently broad to encompass her dealings with work colleagues and subordinates.

[72] I also infer from the comments made by Ms Bucknor on or around 3 July 2012 that “the Company could hang me once again for this” and that if she left it would make everyone’s life easier, that Ms Bucknor knew that management of Aero-Care had concerns about her work performance, and her dealings with colleagues.

The degree to which the size of the Aero-Care’s enterprise would be likely to impact on the procedures followed in effecting the dismissal

[73] Aero-Care is a large employer according to the Response the Company filed in relation to Ms Bucknor’s application, has 900 employees. This is not a matter likely to have impacted on the procedures followed in effecting Ms Bucknor’s dismissal.

The degree to which the absence of dedicated human resource management specialists or expertise in Aero-Care’s enterprise would be likely to impact on the procedures followed in effecting the dismissal

[74] Aero-Care has a dedicated Human Resource Management team, and this is not a relevant consideration in relation to whether Ms Bucknor’s dismissal was unfair.

Other matters that the FWC considers relevant

[75] I accept the submission of Aero-Care that Ms Bucknor was in a supervisory position during her employment and that the responsibilities of this role involved not engaging in bullying or harassing behaviour. Notwithstanding my finding that Ms Bucknor’s behaviour could not be so described, I do accept that she behaved in a way that caused staff and customers to complain, and that some of those complaints were justified. In short, Ms Bucknor’s conduct in the workplace left much to be desired and I have no doubt that what she described as an abrasive personality and a direct and forthright approach, caused disruption and distress to colleagues and employees she managed.

CONCLUSIONS

[76] After weighing the criteria in s.387, I have concluded that Ms Bucknor’s dismissal was unfair. The dismissal was harsh because the conduct that Ms Bucknor engaged in did not justify dismissal at the point it occurred, and dismissal was a disproportionate response to that conduct. The dismissal was unjust because Ms Bucknor was not guilty of bullying and harassment as defined in the Aero-Care policy. The dismissal was also unreasonable, because the conclusion that Ms Bucknor had engaged in such conduct was based on inferences that could not reasonably have been drawn from the material that was before management of Aero-Care.

[77] As required by s.390 of the Act, I am satisfied that Ms Bucknor was protected from unfair dismissal and that she has been unfairly dismissed. Ms Bucknor should have a remedy for her unfair dismissal. Ms Bucknor does not seek reinstatement and on that basis I am satisfied that it is not appropriate and that an award of compensation should be made. The remedy of compensation is dealt with in s.392 of the Act in the following terms:

“392 Remedy—compensation

Compensation

(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

Criteria for deciding amounts

(2) In determining an amount for the purposes of an order under subsection (1), FWA must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer’s enterprise; and

(b) the length of the person’s service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that FWA considers relevant.

Misconduct reduces amount

(3) If FWA is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, FWA must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

Shock, distress etc. disregarded

(4) The amount ordered by FWA to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.

Compensation cap

(5) The amount ordered by FWA to be paid to a person under subsection (1) must not exceed the lesser of:

(a) the amount worked out under subsection (6); and

(b) half the amount of the high income threshold immediately before the dismissal.

(6) The amount is the total of the following amounts:

(a) the total amount of remuneration:

(i) received by the person; or

(ii) to which the person was entitled;

(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and

(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.”

[78] There is no evidence that an order for compensation will affect the viability of Aero-Care. Ms Bucknor has over three years service with Aero-Care. Considering the circumstances of the case, including the factors in s.392 of the Act, I have determined that Ms Bucknor should be compensated for her unfair dismissal by the payment of 12 weeks wages.

[79] Despite the unfairness of her dismissal, I am not able to conclude that Ms Bucknor would have remained in employment for a period of longer than 12 weeks from the date she was dismissed. In this regard, I have taken into account the fact that when she was dismissed, Ms Bucknor offered to resign in return for the payment of three months wages, and that Ms Bucknor had made a number of comments in the period prior to her dismissal which indicated that she was well aware that her employment with Aero-Care would not have longevity. Accordingly, I have concluded that had Ms Bucknor remained in employment, she would have earned a further amount of $13,846 (based on $60,000 per annum). Ms Bucknor was paid one months’ wages in lieu of notice on termination of her employment, and that amount should be deducted from the 12 weeks wages.

[80] In relation to mitigation, Ms Bucknor said in her evidence that she sought alternative employment in managerial and administrative positions after her dismissal, but had difficulty due to high unemployment levels in the Cairns area. Ms Bucknor gained alternative employment in January 2013, some six months after her dismissal and received no income from other sources in the intervening period. At the point this application was heard, Ms Bucknor’s position was part-time and she was working three days a week for 21 hours earning $35.00 per hour.

[81] There is no evidence upon which I could form a view that Ms Bucknor has not made reasonable attempts to mitigate the loss of her employment. The alternative employment was not obtained during the period covered by the compensation amount I award, and accordingly I do not intend to adjust it for these earnings or for the amount earned between the making of the order and the payment of compensation.

[82] Given that I am not satisfied that Ms Bucknor engaged in misconduct justifying dismissal, I make no adjustment on that account. I am also of the view that Ms Bucknor’s contribution to her dismissal has been adequately recognised by the fact that I have limited her compensation to a three month period, on the basis of my view that her employment would likely not have continued past that period, because of that conduct.

[83] The amount of $9230.00 less taxation at the appropriate rate is to be paid to Ms Bucknor within fourteen days of the date of this Decision. An Order to this effect will issue with this Decision.

DEPUTY PRESIDENT

Appearances:

Mr G. Fawcett on behalf of the Applicant.

Mr D. Houlihan and Mr G. Shelley on behalf of the Respondent.

Hearing details:

2013.

Brisbane:

April 17, 18.

 1   Stewart v University of Melbourne (U No 30073 of 1999 Print S2535) Per Ross VP citing Byrne v Australian Airlines (1995) 185 CLR 410 at 465-8 per McHugh and Gummow JJ.

 2   Culpeper v Intercontinental Ship Management Pty Ltd (2004) 134 IR 243 at 249.

 3   Edwards v Giudice (1999) 94 FCR 561; Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201; Sherman v Peabody Coal Ltd (1998) IR 408; Australian Meat Holdings v McLauchlan (1998) 84 IR 1.

 4   Selverchandron v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.

 5   Rode v Burwood Mitsubishi Print R4471 at [90] per Ross VP, Polites SDP, Foggo C.

 6   Miller v University of NSW [2003] FCAFC 180 at pn 13, 14 August 2003, per Gray J.

 7   Exhibit 4 Statement of Gregory Luke Shelley Annexure C.

 8   Exhibit 4 Statement of Gregory Luke Shelley Annexure D.

 9   Exhibit 1 Statement of Patricia Bucknor Annexure A.

 10   Exhibit 5 Statement of Valerie Ladlay Annexure B.

 11   Exhibit 1 Statement of Patricia Bucknor Annexure D.

 12   Exhibit 1 Statement of Patricia Bucknor Annexure B.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR541254>