Ms Rene Katsalis v Gympie and District RSL Memorial and Citizens Club

[2013] FWC 2830

[2013] FWC 2830

FAIR WORK COMMISSION

DECISION

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

Ms Rene Katsalis
v
Gympie and District RSL Memorial and Citizens Club
(U2012/14879)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 21 MAY 2013

Termination of employment - arbitration - whether conduct as alleged made out - propensity evidence - reinstatement with continuity of service ordered.

[1] On 6 November 2012, Ms Rene Katsalis (“the Applicant”) made an application under s.394 of the Fair Work Act 2009 (“the Act”) seeking an unfair dismissal remedy in respect of the decision by the Gympie and District RSL Memorial and Citizens Club (“the Respondent”), to dismiss her from its employment on 25 October 2012.

[2] The Applicant had been an employee of the Respondent since 19 July 2009 where she had performed duties as an assistant chef/cook.

[3] The Applicant was ostensibly dismissed for reasons of being an unreliable employee insofar as she is said to have not reliably presented to perform her rostered shifts.

[4] The Applicant claims that on 17 October 2012 she had been the victim of domestic violence at the hands of her boyfriend. She claims that she was unable to attend work on 18 October 2012 because of “some injuries”, as she put it.

[5] The Applicant claims that she sent a text message to her head chef - Mr Michele Colfs - informing him of the incident and he had replied confirming her non-attendance that day.

[6] On Friday 19 October 2012 the Applicant claimed she attended her rostered shift from 11 AM to 3 PM that day. However, at 1 PM on that day the head chef – Mr Colfs – directed her to go home because she was still in pain. As a consequence, the Applicant did not return for her nightshift at Mr Colfs’ request.

[7] The Applicant claims that she then attended her Saturday shift on 20 October 2012 as rostered between 5 PM and 9 PM. At the conclusion of her shift the Applicant claims that she enquired as to the new roster and was informed by Mr Colfs that “it had not been done yet” and that she would be sent a text message confirming her hours subsequently.

[8] On Sunday 21 October 2012 at 3.30 PM, the Applicant claims to have received a phone call from Mr Colfs to enquire as to whether she could work that night. The Applicant at that time indicated that she could not work because she had had “a few drinks” and the Respondent’s “no alcohol policy” precluded her from attendance at work. At that time the Applicant asserts that she enquired once more about her roster and was told by Mr Colfs that it was still in production, and that she would be informed about it subsequently.

[9] Close to midday (11.49 AM) on Monday 22 October 2012, the Applicant claims to have received a text message from Mr Colfs with her shift start time for Tuesday 23 October 2012. The text message, which I have sighted and which was from Mr Colfs’ mobile phone number, read as follows:

Tues 11.00am

[10] Notwithstanding this, the Applicant claims that at approximately 6.15 PM on Monday 22 October 2012 she received a telephone call from the duty manager for the Respondent enquiring as to why she had not attended her shift commencing at 5.00 PM that day.

[11] The Applicant informed the duty manager that she was not rostered on until the following morning at 11 AM. The Applicant was then transferred to Mr Colfs who indicated, so the Applicant says, that he had possibly forgotten to communicate the Monday evening shift to her, and would talk to her at a later time.

[12] At about 8.30 PM on Monday 22 October 2012, the Applicant was shopping in Gympie when she identified a number of people in an intoxicated state outside a hotel. She avoided the group. One member of that group was Mr Colfs. Another member of that group was her former boyfriend who had allegedly committed an act of domestic violence against her (as indicated previously). It so passes that Mr Colfs and that person shared accommodation with one another.

[13] The Applicant refused to interact with the group given their apparent inebriated state. She subsequently received a text message from her former boyfriend which is said to have stated:

Ur a dumb bitch and too bad bout ur job.

[14] The Applicant attended her shift on Tuesday 23 October 2012 and about one hour into that shift she was required to attend the office where she was informed by Mr Roy Shipp, who is the General Manager (and also responsible for human resource management) that her employment had been terminated because she had failed to turn up for a rostered shift.

[15] The Applicant claims that she had explained that she had not been informed about the shift and that there were wider circumstances to consider. Upon presenting this argument the Applicant was informed that she was to be suspended whilst further enquiries were made of Mr Colfs.

[16] The Applicant subsequently received a further text from her former boyfriend which she says stated:

U want me to give u are c**t of time, u will get what u give. Hell.

[17] On Wednesday 24 October the Applicant sent a text message to her former boyfriend thanking him for “doing this to me”. Her former boyfriend is said to have replied:

Hahaha

[18] The Applicant claims that on Wednesday 24 October 2012 she received a text message from a female friend of her former boyfriend and Mr Colfs, which indicated that she was regretful that the Applicant had lost her employment but Mr Colfs “was sick of him (the former boyfriend) talking bout u.”

[19] On Thursday 25 October 2012 Mr Shipp is said to have telephoned the Applicant and informed her that she had been dismissed for reason that she had failed to turn up to a rostered shift and that he did not appreciate her “trying to cause trouble in the kitchen” and “lying about the situation”.

[20] The Applicant duly presented herself to Mr Shipp and attempted to explain, so she says, that her former boyfriend and Mr Colfs were friends and that the text messages were evidence of circumstances being contrived to bring about her dismissal. The Applicant also argued that she did not receive her roster from Mr Colfs until almost midday on Monday, 22 October 2012 and that she had been rostered for a shift on Tuesday which she had duly attended and had not missed any other rostered shift that week. The Applicant is said to have indicated to Mr Shipp that he could check computer records to that effect. Mr Shipp was said to have been dismissive of the alleged relationship between Mr Colfs and the Applicant’s former boyfriend and not to have taken any interest in any other matters raised by the Applicant. The Applicant was formally dismissed by Mr Shipp at that time on 25 October 2012.

[21] On 27 October 2012 the Applicant claimed her former boyfriend sent her a text which stated:

He set u up a bit because on Monday night (22/10/2012) when we went to sue place Cheffy [Mr Colfs] said “ it was his fault because there was no roster done up.

[22] On 27 October 2012 the Applicant received yet a further text message from her former boyfriend which stated:

Do you think I should call the RSL club and tell them that I was with Cheffy from Thursday night till Tuesday and drive into work and picking up as well.

[23] The Applicant claimed her former boyfriend approached the RSL club, but that they would not talk to him about the matter.

[24] On 30 October 2012 the Applicant met a friend for lunch who stated that on 22 October 2012 the Applicant’s former boyfriend and Mr Colfs were in a hotel at lunchtime offering people a job in the Respondent’s place of work, and that this had been before she had not turned up for her alleged shift.

[25] Mr Shipp’s evidence for the Respondent was that the Applicant was subject to the requirements of the staff manual, which makes reference to the importance of punctuality in relation to attendance at work, following breaks and for rostered shifts and the need to provide advance communications in the event of being late or being unable to present for work.

[26] The Applicant was aware of these requirements and had signed off as having read and understood the staff manual and being committed to abiding by the various rules and conditions therein. The Applicant’s declaration appears on the staff manual and was dated 21 July 2009.

[27] Under the heading “Punctuality” at paragraph 7 of the staff manual employees are informed that:

Punctuality is extremely important for effective and economic rostering requirements of the Club. [...] Tardiness will not be accepted. It shows disrespect towards the Club and lack of interest in the job. Remember that we are a team.

[28] Mr Shipp set out in his evidence various disciplinary warnings the Applicant had received in relation to her attendance at work. I summarise these as follows:

• On 20 June 2010 the Applicant was warned verbally about not giving prior notification that she would be late for her shift. The Applicant’s response was said to be that her walk to work took longer than anticipated.



• On 1 August 2010 the Applicant was given her first written warning for being late to work. The Applicant was said to have explained that her late arrival had been because of car trouble and she had run out of credit on her phone. At that time the Applicant was also warned about the state of her uniform.



• On 21 December 2011 the Applicant was given a further written warning in relation to the state in which she had left the work area. The Applicant had left a gas cooker on and the Fire Brigade had been called. The Applicant apparently was reluctant to engage in relation to this particular matter and provided no comment in relation to the allegation. It appears that the Applicant was asked whether everything had been turned off in the kitchen and had replied in the affirmative.



• On 2 February 2012 the Applicant failed to turn up for a rostered shift and did not provide any notice. The Applicant was given a final written warning. The Applicant was advised that time by Mr Shipp that if she failed to turn up for a shift again she would be instantly dismissed. The Applicant had signed the disciplinary action sheet she was given in this instance.



• On 26 February 2012 the Applicant was spoken to in relation to the state in which she left the work area once again. This was a verbal warning and the disciplinary action sheet was signed off by the Applicant.



• On 20 September 2012 the Applicant was given a further verbal formal warning for having failed to turn up to a rostered shift. The Applicant claimed apparently that she did not see her shift put up on the roster and appears to have been confused by a conversation she had had about the rosters.

[29] On 22 October 2012 the Respondent alleges the Applicant once again failed to attend for a rostered shift and was subsequently dismissed for that further misconduct. The disciplinary action sheet read as follows:

Failing to report for rostered shift on Monday 22.10.13 (6-9) after being informed by head chef Michel on Sunday 21st of October 2012.

[30] The file notes attached to the disciplinary action sheet indicate that the Applicant had informed Mr Shipp that the reason for her being dismissed was the relationship between her former boyfriend and Mr Colfs.

[31] Mr Colfs’ own evidence in these proceedings was that he advised the Applicant on 21 October 2012 - at the time (approximately 3 PM) he contacted her to see whether she was available at short notice to work a shift that day - that she was on a rostered shift the next day (22 October 2012) which was to commence at 5 PM. Mr Colfs agreed that it was necessary for him to communicate the shift verbally because he had not published the rostered shift at that point in time.

[32] Mr Shipp claimed that being late or failing to attend for a shift caused considerable disruption to the business and the Applicant’s continuing tardiness could not be accepted.

[33] It was also claimed that the Applicant had not turned up for other shifts but this conduct had not been subject to the disciplinary process as it appears the incidents were not communicated to Mr Shipp.

[34] The Respondent’s evidence through Mr Shipp also extends to demonstrating that rosters were placed on notice boards in the kitchen, and where they were posted late employees would be routinely contacted and advised of their obligations.

[35] The rosters are typically placed on a noticeboard a week in advance, Mr Shipp claimed, though in his oral evidence he was less unequivocal.

[36] Others gave written statements that the Applicant was an unreliable employee. Ms Lisa Lemin - the duty manager of the club - stated that:

There would be occasions where she [the Applicant] either did not turn up for work or would be chronically late to work.

[37] Ms Lemin also complained that the Applicant would seldom provide prior notice if she was to be late for a shift, and when advised of the issue the Applicant would complain herself that she was unaware of her shift obligations (despite the rosters being published on the noticeboard in the kitchen).

[38] The view of the Applicant was shared by Ms Tonita Jon Geary, who is a permanent part-time employee of the Respondent.

[39] Ms Geary claimed the Applicant was “not a consistent employee” and she had had cause to telephone the Applicant when she failed to turn up for a shift or was late for a shift. When Ms Geary did so she claimed the Applicant informed her that she was unaware of her shift obligations.

[40] Ms Geary claimed that she did not report these incidents to Mr Shipp or otherwise document the conduct.

[41] A further co-worker of the Applicant, Ms Judith Ann Gould, claimed that she was aware of at least three occasions on which the Applicant had not presented herself for a shift. Ms Gould also stated that there were up to nine possible occasions on which the Applicant had been late to the commencement of her shift.

[42] Having set out the claims made by Ms Lemin, Ms Geary and Ms Gould, I point out that the Respondent did not in the end produce these witnesses at the hearing and they were unable to be examined in respect of their various claims. The claims by Ms Lemin, Ms Geary and Ms Gould, therefore, have little probative value at all and as a consequence, I cannot rely upon them.

[43] Mr Colfs also gave further evidence, I should add, that he was aware that on a number of occasions the Applicant had turned up late to her shift and he complained that this had a “large impact on all Staff Members”.

Legislative Provisions

[44] Section 387 of the FW Act reads as follows:

387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA 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 FWA considers relevant.

CONSIDERATION

Section 387(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)

[45] Mr Shipp effected the dismissal of the Applicant on the basis of the information given to him by Mr Colfs.

[46] Mr Colfs indicated to Mr Shipp that he had informed the Applicant on the afternoon of Sunday, 21 October 2012, that her next rostered shift commenced late afternoon on the following day, Monday 22 October 2012.

[47] Mr Shipp relied upon Mr Colfs’ evidence as being true, perhaps because of the propensity as he perceived it to be for the Applicant to be late for work or to fail to attend rostered shifts.

[48] Mr Colfs’ evidence was subject to examination at the time of the hearing. It was somewhat hurried as Mr Colfs had resigned as an employee of the Respondent some two weeks earlier and was only located for the purposes of giving evidence on the day of the proceeding. Indeed, it appears to be so hurried, that this was the cause for Mr Colfs to hang up the phone before such time as he had been excused as a witness.

[49] At least at the start of his cross examination, Mr Colfs was less than adamant that he informed the Applicant on 21 October 2012 as to the time her shift was to commence the following day.

You were going to call me back after you found someone because that's what you told me. I said to you, I said, "Have the rosters been done up," and you said, "Can I call you back? I've got to find someone"?---No. I'm pretty sure I did say, "6 o'clock tomorrow night."

[50] Mr Colfs was “pretty sure” (but therefore not certain) that he had informed the Applicant on the Sunday afternoon of the start time of her next shift.

[51] When the issue of the text sent by Mr Colfs was raised the following exchange took place:

I said, "When am I working," and you said, "I'll call you back. I haven't" - you said, "I'm looking for somebody. I'll call you later," and you never did. I received a text off you about 11 o'clock Tuesday with my next hours, which was 11 o'clock Tuesday?---Yes. That was already after the Monday thing when you didn't turn up to work, which I told you that you had work Monday night. I'm sorry, but I remember that.

[52] Mr Colfs maintained initially (under examination) that he was certain of his recollection (“I remember that”) that he sent the text message indicating the Tuesday 11 AM start time after the Applicant allegedly had not shown up for her shift (on the Monday). Mr Colfs claimed that he sent this text message on the Tuesday:

There's a time on my clock with the message so?---Well, I dispute that, Rene. I told you it was 6 o'clock Monday. I sent you a text on Tuesday after you didn't turn up on Monday because I wanted you to turn up for your next shift.

[53] Mr Colfs was then informed that the text message on the Applicant’s mobile telephone indicates it was sent on the Monday at 11.49 AM:

You couldn't have sent me the text on Tuesday because it actually has a time and a date on it?---Well, when was that sent?

It says lunchtime on Monday?---Lunchtime on Monday. Well, there you go.

[54] Mr Colfs had no explanation as to how to accommodate this claim with the fact the stored message demonstrated that he had sent the message at 11.49AM on the Monday.

[55] Towards the end of his evidence Mr Colfs conceded he could not remember what day he sent the text message:

Mr Colfs, the time that you sent the text message - - -?---Yes.

- - - do you recall that as being Tuesday, as opposed to the Monday? Is that correct?---No, I - it's a long time ago. I can't remember.

[56] If this was the case, Mr Colfs should have stated this as his evidence at the start, and not have asserted to the contrary as he did (see above).

[57] Mr Colfs’ evidence also dealt with the reason that he sent the text message to the Applicant. As set out above, Mr Colfs’ claimed initially (as set out above) that he sent the text as a reminder to the Applicant to present for her next rostered shift:

I sent you a text on Tuesday after you didn't turn up on Monday because I wanted you to turn up for your next shift.

[58] Under questioning by me a little later, Mr Colfs initially stated he did not know why he sent the text on the Monday (as it came to be), but then came to this view:

Now, sorry, can you just explain to me why you sent the text on the Monday then?---I don't know. Because she asked me when her next shifts were, and that was the shift after the night, yes.

So you say you were responding to a request for information about when the shift after the - - -?---Yes, after the 6 o'clock one, yes, because I told her that Sunday night, so I gathered she just knew that.

[59] Here, Mr Colfs introduced a further, amended reason for the text message (that now accommodated the fact the text message had been sent on the Monday). In the exchange immediately above, Mr Colfs stated that the reason for the text message was that the Applicant, when they spoke on Sunday afternoon:

Asked me when her next shifts were, and that was the shift after the night […].

[60] That is, the Applicant wanted to know the start time for her shift for the Tuesday, and that is why he sent the text on the Monday.

[61] In light of this evidence, Mr Colfs made inconsistent claims about the reason for the text message being sent to the Applicant. On one hand, Mr Colfs claims he was responding to the Applicant’s request for further information about a future shift (the Tuesday start time). On the other hand, Mr Colfs argued he had initiated the text message himself to “remind” the Applicant to turn up for the shift after the one she had missed (allegedly). The latter evidence appears to me not to have arisen from a genuine recollection at all, but was manufactured to accommodate the changed factual matrix to which he had been alerted in the cross examination.

[62] Generally, for the reasons I have set out above, I have little confidence in Mr Colfs’ evidence or his recollections.

[63] The Applicant herself explained that Mr Colfs had been in a hurry at the time of the conversation on Sunday afternoon as he was attempting to find another employee to fill a gap in the roster that afternoon - owing to an unforeseen absence - and had indicated that he would come back to her subsequently regarding her query about the start time for her next shift. Thus, the receipt of the text message the following day.

[64] It appears to me having heard the evidence in this matter that the Applicant’s evidence, from which she was never moved under examination, provides a more natural and convincing context for the text message as received from Mr Colfs on Monday 22 October 2012. Mr Colfs’ evidence as I heard was far from persuasive by comparison, for the reasons I have set out above.

[65] I add further that I could discern no stratagem or dishonesty in the Applicant’s evidence, which was given without hesitation or inconsistency.

[66] As a consequence of my finding in this regard, Mr Shipp himself was misinformed by Mr Colfs in relation to the Applicant’s conduct. I will not surmise as to why Mr Colfs misinformed Mr Shipp. He may have been in a confused state as to what he did or did not say or else he may have had another agenda altogether (such as to which the Applicant had alluded). I cannot say which, and there is no need for me to reach such findings in any event.

[67] The end result, however, is that Mr Shipp was misinformed about the Applicant’s conduct, and believing Mr Colfs’ claims to have been true (in preference to those of the Applicant, given what he perceived to be her propensity conduct) he dismissed the Applicant from the Respondent’s employment.

[68] There was, however, no conduct on the Applicant’s part that warranted her dismissal. The Applicant did not fail to attend a shift for which she was rostered. If the allegation had never been made, Mr Shipp’s mind would never have turned to consider the Applicant’s conduct, let alone her prior alleged conduct.

[69] There was no valid reason, therefore, for the dismissal of the Applicant.

[70] I add one last matter in this regard, and though it was not argued - there might be circumstances in which propensity evidence, per se, might be relevant to civil proceedings in relation to the credit of the respective witnesses. In this case, however, the wider evidence about the actual conduct is stronger and more directly relevant to my task, and I have no need to determine matters otherwise.

Section 387 (b) whether the person was notified of that reason

[71] The Applicant was informed in advance of her dismissal of the allegations made against her.

Section 387 (c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[72] Mr Shipp provided some limited opportunity for the Applicant to explain her position in response to the allegation that she had failed to present for her shift. The Applicant’s initial dismissal reverted to a suspension on the basis of the Applicant’s claims. At the end of the day, Mr Shipp appreciated the Applicant’s argument in her defence, but he simply did not accept it on the basis of his own investigation, as it was.

Section 387 (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

[73] There is no claim by the Applicant that she sought representation by another person at the time of her meeting with Mr Shipp. The statutory provision therefore is of no relevance to my determination.

Section 387 (e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

[74] The Applicant was not dismissed for reasons of the performance of her duties, and the statutory provision has no relevance to my determination.

Section 387 (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

[75] The employer is not an employer that would be characterised ordinarily as being a small employer either for the purposes of s.23 of the Act or otherwise. It does not appear to me that the size of the employer’s enterprise in any manner relevantly or materially impacted upon the procedures followed in effecting the dismissal.

Section 387 (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

[76] The Applicant had the benefit of a person who had responsibility for human resources matters when effecting the dismissal, that being Mr Shipp. But the evidence as to “expertise” or specialism does not travel far, and nothing was argued in relation to this statutory consideration.

Section 387 (h) any other matters that FWA considers relevant

[77] The Applicant had been given a number of warnings in relation to being late for work or forgetting to attend a rostered shift. There were two warnings in relation to a failure to properly maintain the kitchen. The Applicant did not accept these disciplinary warnings without challenging their context and therefore their gravity. The Applicant argued that the method of notifying and publishing shifts was ad hoc and there was always ample scope for confusion or miscommunication. Even Mr Shipp had conceded that there were sometimes irregularities in the publication of the shift rosters.

[78] In respect of the kitchen warnings, the Applicant stated that she effectively accepted the action by her employer even though there were a number of employees concerned, all of whom had collective responsibility for maintaining the kitchen.

[79] The Applicant submitted that she was a single mother with a dependent child (16 years of age) and had been unemployed since the dismissal. Implicitly the Applicant contended the dismissal had had a harsh effect upon her.

[80] Dismissals mostly by definition will always have a harsh and disruptive effect on the person dismissed (be they young or much older, single or married, childless or with numerous dependents, long serving or short serving employees, or between the seemingly psychologically resilient and the less psychologically resilient employee). Indeed, for such judgments in these respects to be more than expressions of empathy or speculation would involve a wholly additional avenue of inquiry, with a longitudinal element as well.

[81] It seems arguable that representations of the notion of harshness that extend beyond the manner in which the dismissal was given effect, such as where a summary dismissal is disproportionate to the conduct alleged, require careful weighting. The authorities nonetheless appear to indicate that harshness may reside in the effect of a dismissal on an employee, given their personal circumstances (however made out and over what period of time).

[82] But equally, that alone is not determinative of the wider finding (as to whether the dismissal itself was harsh, unjust or unreasonable). It is worth recalling that in its judgment in Byrne and another v Australian Airlines Limited, 1 the High Court of Australia upheld a finding of dismissal (regardless of procedural fairness defects) for misconduct of two employees who had been employed for 26 years and 20 years respectively by the one employer. Such employees were demonstrably long serving employees. The dismissals were upheld despite the joint judgments also apprehending that a dismissal might be harsh because of its effects on an employee.2

Conclusion

[83] Considering the evidence in this matter, I conclude on balance that the Applicant was harshly, unjustly or unreasonably dismissed. It appears to me that the finding in relation to the conduct which was the basis for the dismissal cannot be made out on the evidence and the surrounding circumstances do not compel a contrary decision.

[84] I now turn to consider the appropriate remedy in relation to the application. Before doing so I add that I expressly sought submissions from the Respondent’s legal representative about remedy options.

REMEDY

[85] Section 390 of the Act reads as follows:

Division 4—Remedies for unfair dismissal

390 When FWA may order remedy for unfair dismissal

(1) Subject to subsection (3), FWA may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) FWA is satisfied that the person was protected from unfair dismissal (see Division (2)) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) FWA may make the order only if the person has made an application under section 394.

(3) FWA must not order the payment of compensation to the person unless:

(a) FWA is satisfied that reinstatement of the person is inappropriate; and

(b) FWA considers an order for payment of compensation is appropriate in all the circumstances of the case.

Note: Division 5 deals with procedural matters such as applications for remedies.

[86] The Applicant is a person protected from unfair dismissal for the Act’s purposes, and is a person who has been unfairly dismissed. Accordingly, I am empowered to exercise my discretion as to whether the Applicant can be reinstated. In this regard, s.391 of the Act provides as follows:

391 Remedy —reinstatement etc.

Reinstatement

(1) An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:

(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or

(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

(1A) If:

(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and

(b) that position, or an equivalent position, is a position with an associated entity of the employer;

the order under subsection (1) may be an order to the associated entity to:

(c) appoint the person to the position in which the person was employed immediately before the dismissal; or

(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

Order to maintain continuity

(2) If FWA makes an order under subsection (1) and considers it appropriate to do so, FWA may also make any order that FWA considers appropriate to maintain the following:

(a) the continuity of the person’s employment;

(b) the period of the person’s continuous service with the employer, or (if subsection (1A) applies) the associated entity.

[87] I cannot discern anything in the evidence that would demonstrate to me that reappointment to the position the Applicant held immediately before the dismissal is inappropriate.

[88] The Respondent’s legal representative contended that there were difficulties in the relationship which should dissuade me from exercising my discretion to reinstate the Applicant.

[89] But I cannot see evidence of this at any factual level let alone as a matter of reasonable inference.

[90] I have heard the evidence of Mr Shipp and he does not appear to have any underlying anxieties in relation to the Applicant or any concerns about her interactions with other staff or capacity to perform her duties at an effective level, and at times also when demands on the kitchen were high. It is the case, rather, that Mr Shipp was misinformed (to put it at its lowest) as to the Applicant’s conduct. In saying as much, arguably though Mr Shipp could have tested Mr Colfs’ evidentiary claims more thoroughly than he did.

[91] Of course, the Applicant has been subject to prior warnings about being late for work or missing shifts. These are important matters because they impact significantly on workloads and customer service in the Respondent’s business.

[92] But they are not matters - having occurred in the Applicant’s past - that persuade me not to exercise my discretion in favour of the Applicant. The issues about the availability of shift rosters and the like that had arisen over the 3 1/2 years of the Applicant’s employment did not demonstrate in some way that she has lost the trust and confidence of her employer in some fundamental sense (absent the claim made by Mr Colfs). Clearly, until the allegation that the Applicant had missed her shift was made on 22 October 2012, the employment relationship had remained intact (if under some stress from time to time).

[93] Each case turns on its facts, of course, and reliability can sometimes be a critical factor in sustaining the employment relationship. But here, whilst the Respondent had expressed its concerns to the Applicant about her lapses in attendance at points (and for which the Applicant had tenable explanations I should add), I do not discern in the circumstances that this is enough to cause me to not reinstate the Applicant to the position to which she had been employed immediately before the dismissal.

[94] Moreover, and importantly, the Applicant’s conduct in this particular instance was not contributory to the decision taken by Mr Shipp. That is, the Applicant did not herself contribute to the circumstances that led Mr Shipp to assess her suitability for continuing employment. Absent Mr Colfs’ claims, the Applicant would have continued on as an employee.

[95] The various warnings will remain on file, of course, and the Applicant’s future conduct will be judged against these matters. But the conduct as alleged which resulted in her dismissal could not be made out and I think it would be unreasonable, in effect, not to restore the situation as it was prior to the false allegation being made.

[96] I therefore reappoint the Applicant to the position in which the Applicant was employed immediately before the dismissal.

[97] Having made an order under subsection 391(1) of the Act, the Commission, if it considers it appropriate to do so, may also make any order that it considers appropriate to maintain the following:

(a) the continuity of the person’s employment;

(b) the period of the person’s continuous service with the employer, or (if subsection (1A) applies) the associated entity.

[98] In the circumstances I have set out above, where the Applicant has not been guilty of the conduct claimed, and there being no other circumstances that bear materially on my discretion, I should not disturb the continuity of the Applicant’s employment since the date of dismissal or the Applicant’s period of continuous service with the Respondent. Had the Applicant contributed in some manner to the decision itself to dismiss her, which was based solely on Mr Colfs’ claims, my discretion may have been exercised differently.

[99] In view of these findings, I order that the Applicant:

● be not only reappointed to the position to which she had been employed immediately before the dismissal, but;

● that the Applicant’s continuity of employment be preserved from the date of the dismissal to the date of her reappointment (and thus that the Respondent pay to the Applicant the remuneration she has lost - including superannuation - for that period of time); and

● that the Applicant’s period of continuous service be maintained also for the same period (that is, from the date of dismissal to the date of the Applicant’s reappointment).

[100] The order to these ends will be published at the same time as this decision.

[101] I add only by way of closing remark that the Applicant remains subject to her employer’s continuing concerns about her reliability as an employee in relation to her attendance. She will need to exercise her best endeavours to ensure she does not fall short of her employer’s expectations in this regard in the future. Those concerns are now a matter of record.

SENIOR DEPUTY PRESIDENT

Appearances:

Ms R. Katsalis, Applicant

Mr C. Anderson, for the Respondent

Hearing details:

Brisbane

2012

15 May

 1 ( (1995) 185 CLR 41, 11 October 1995, Brennan CJ, Dawson, Toohey, McHugh, Gummow JJ per McHugh and Gummow JJ).

 2   ibid page 465.

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