Ms Roslyn Claydon v Celotti Workforce Pty Ltd T/A Celotti Workforce
[2021] FWC 6318
•11 NOVEMBER 2021
| [2021] FWC 6318 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Roslyn Claydon
v
Celotti Workforce Pty Ltd T/A Celotti Workforce
(U2021/1041)
COMMISSIONER SPENCER | BRISBANE, 11 NOVEMBER 2021 |
Application for unfair dismissal remedy –– alleged serious misconduct – inappropriate conduct and language in the workplace – conduct substantiated – standard of serious misconduct not established – procedural deficiencies in dismissal process – valid reason for dismissal.
INTRODUCTION
[1] Ms Roslyn Claydon (the Applicant) made an unfair dismissal application pursuant to s.394 of the Fair Work Act 2009 (the Act) contending that the termination of her employment with Celotti Workforce Pty Ltd T/A Celotti Workforce (the Respondent) was harsh, unjust and unreasonable.
[2] The Respondent operates a recruitment business with offices in Darwin and an office in Brisbane where the Owner/Director, Mr Celotti and General Manager, Mr Weygood were located. The Applicant had been employed as a Recruitment/Business Development Consultant, for the Respondent, and she worked in the Parap, Darwin Office. The Applicant had been employed by the Respondent for approximately two years and ten months.
[3] The Applicant considered that her dismissal was harsh, unjust and unreasonable and initially sought reinstatement and continuity of service and wages for the interim period, pursuant to s.391 of the Act.
[4] The matter was heard in the Fair Work Commission (FWC) Darwin, with all witnesses (apart from one) providing their evidence there. Mr Weygood, the General Manager, provided his evidence by video from Brisbane FWC. The representatives were located in Brisbane and participated via video link, using Microsoft Teams. The Applicant was represented by Ms Ellie Bassingthwaighte, Solicitor of Hall Payne Lawyers. The Respondent was represented by Ms Theresa Moltoni, Managing Legal Practitioner of IRIQ Law. Both representatives were granted permission to appear, pursuant to s.596 of the Act. Final submissions were provided in writing by consent, at a later date.
BACKGROUND
[5] The Applicant was dismissed for serious misconduct, following complaints about her conduct at the workplace.
[6] The Applicant was advised on Wednesday, 27 January 2021, upon arriving at work, that the Respondent held ‘serious concerns’ regarding her workplace conduct and that she would be stood down with pay from her role, whilst she responded to the matters. The Respondent had endeavoured to contact the Applicant prior to her arriving at work. The Applicant was sent a text message asking her to contact Mr Nathan Weygood. The Applicant was not advised as to the specific nature of the Respondent’s concerns at that time. These were set out in correspondence.
[7] On Thursday, 28 January 2021, the Applicant was presented with a ‘show cause’ letter, outlining some 11 allegations to which the Applicant was directed to respond to, by close of business on 29 January 2021.
[8] The show cause letter signed by Mr Weygood, stated as follows:
“RE: Opportunity to Please Explain
Dear Roslyn
Serious concerns have arisen regarding your conduct in your role as Recruitment/Business Development Consultant at Celotti Australia Pty Ltd (‘Celotti’). A process is now underway to deal with these concerns and it is appropriate that you do not attend work until you are advised to do so.
Whilst you are suspended from work, we ask that you provide a written response to the following issues:
1. It is alleged that you regularly make disparaging comments to, or in the presence of, other staff in the Darwin office about Nathan Weygood and Adrian Celotti, including comments regarding how the Celotti business is managed.
Over the period commencing 7 December 2020 to date specific examples of this behaviour include the following comments made by you in morning meetings:
a. you have referred to Nathan Weygood as a “wanker” and “incompetent”; and
b. you have referred to procedures implemented by Celotti as “illegal”.
2. It is alleged that you have engaged in conduct towards other staff members which, if proven, could constitute workplace bullying and harassment.
From 7 December 2020 to date specific examples of this alleged conduct include:
a. On several occasions you have made inappropriate comments to staff in morning meetings regarding their clothing, you have also referred to a number of Celotti staff as “incompetent”.
a. You are overly critical of Ms George in her performance of her role. You frequently critique Ms George’s work and emails and make a point of identifying minor grammatical errors and mistakes.
b. You are disrespectful to Ms George and treat her like a personal assistant, including by directing her to perform menial tasks in an impolite tone, using words to the effect of “fetch me that” or “do this for me now”. This is despite the fact that Ms George is not your assistant and is a direct report to Mr Weygood.
c. You are dismissive of the opinions of other Celotti staff, particularly when those opinions do not align with your own. For example, in a recent discussion with Ms George regarding uniforms for candidates at the client (name redacted), you both had conflicting recollections as to what the client instructions were. When this was followed up with the client, the answer did not align with what you perceived to be correct. Regardless, you still insisted that Ms George (and by extension the client) was wrong and directed that the candidates wear the uniforms you wanted them to. This conduct by you, if proven, shows an inability or otherwise failure to work with your colleagues in a productive manner, to follow client instructions and to accept that at times, the information you perceive to be accurate is incorrect.
d. While you were on leave over Christmas you left a list of jobs to be completed by Ms George. This job list included the recruitment of a Crane Engineer for (redacted). You provided Ms George with the details in Job Adder and a list of bullet points for the role. Ms George utilised this information and found a candidate. She then cross checked her choice of candidate with Mr Adrian Celotti, who agreed with her choice. The candidate was subsequently submitted to the client.
When you returned from work you criticized Ms George’s choice for approximately 15 minutes, outlining why Ms George had made a mistake in putting the candidate forward. It is alleged that during this discussion you told Ms George “it isn’t your fault; Adrian shouldn’t have let you do it” in what was perceived to be a belittling tone. You then stated that the client relationship was “completely ruined” and that the client had said “Why are you sending us this shit? You have never done it before. What has happened to your office?”.
If a client made a complaint of this nature, it is an expectation of Celotti that management is immediately notified. It is not useful or constructive to inform staff that their choice of candidate was so poor that it effectively severed a client relationship. It is expected that in your role as Manager, you provide appropriate training and guidance regarding what is instead required of staff in the future.
You were also overheard by staff on 18 January 2021, while in discussions with Mr Weygood, stating words to the effect of “Nobody is competent at filling my jobs because they are too complex, not even Nicola or Vilisi could do them.” You then stated that Ms George was provided with concise instructions regarding the above candidate (notwithstanding this is incorrect).
e. You belittle Ms George in her role and place unreasonable expectations on her performance. For example, on 15 January 2021, you needed to finalise two contracts before you left work for the day. In the first instance you did not provide adequate information to Ms George to input into the contracts and subsequently took a phone call without providing this information. In the absence of further details, Ms George used the details in Job Adder to complete the contract.
Ms George made an error regarding the correct date on the first draft. When provided with the second draft you told Ms George she had the job title wrong, despite the fact that you did not provide this information to Ms George, so she was required to utilise the details in Job Adder. It is alleged that you then told Ms George to “hurry up and don’t make mistakes”, in what was perceived to be a rude tone.
The third version of the document had another error being the incorrect supervisor name. Ms George had input the information that you provided her in this instance, though she was later informed by you that this information was incorrect. Despite this, you said words to the effect of:
“Nicole wouldn’t make this many mistakes”; and
“Nicole has only ever had to redo these twice”,
to which Ms George responded that she needs the correct information and time to read her work, without being rushed. Ms George then completed the contract correctly once you were off the phone and provided the correct details. While Ms George printed the forms, it is alleged you continued to make belittling comments to Ms George comparing her mistakes to Nicole’s work.
Ultimately, Ms George said words to the effect of “Ros, can you please stop making these comments, they’re making me feel upset and putting me down and I don’t like them”, to which you responded that you were joking and asked, “is it because you’re feeling bad because you’re making mistakes?”.
f. You make comments to other staff about perceived mistakes made by Ms George in the performance of her role. More specifically, over the past week there are a number of occasions when Ms George has left the room that you have made belittling comments about her personally and about her work ethic.
An example of this is the production of handouts for the client (name redacted) event where there was a disagreement regarding the number of handouts produced for the event. You made a comment to the effect of “[Ms George is] getting up your nose because she doesn’t listen and do as she is told”.
Further examples include recent comments to the effect of:
“Charlotte is far too loud; I don’t know how to tell her without upsetting her. She’s just there, in my ear all the time”; and
“Charlotte is always flossing about making tea”.
The alleged conduct, if proven, demonstrates a refusal or otherwise failure by you to conduct yourself in a respectful and professional manner in the workplace. It is conduct amounting to gross insubordination to senior management and persistent workplace bullying. If proven, this conduct is grounds for summary dismissal from your employment.
In addition to this alleged conduct, we are further concerned by your response today to our lawful direction to stand you down while these matters are investigated. In response to receiving a lawful workplace direction not to attend work, you swore at Mr Weygood and made the following comments in an aggressive tone:
a. ““This is a cuntish thing to do mate”;
b. “ I have not done anything in this company to deserve what you’re doing to me”;
c. “This is fucking outrageous”; and
d. “This is bullshit what you’re doing Nathan”.
These comments were made in the presence of other Celotti staff members.
After hanging up the phone to Mr Weygood, you then stated words to the effect of:
a. “Have fun in this shithole of a company girls” to Ms Nicole Le Hars and Ms George; and
b. “I have just been stood down with full pay by Nathan and he will not give me a reason as to why, this is absolutely outrageous! I have no idea what I have done wrong. I have done nothing but work my butt off for this company and have no idea what I have done to warrant this. I am on my way to see a lawyer”, in the presence of Ms Hilary Davidson and Mr Mark Oliveira. These comments were made after you had been given a lawful and reasonable directive to leave the building immediately and not to speak about the matter with staff.
These are all serious issues and if found proven will result in disciplinary action which may include the termination of your employment with Celotti. We require a written response from you on each of these issues by no later than close of business 29 January 2021.
Should any or all of these allegations be substantiated, we ask that you please show cause as to why your employment should not be terminated summarily on the basis of serious misconduct.
Your written response can be sent to my email address: [email protected]
Celotti Workforce will give your response, and any other relevant matters, due consideration. The Company will then make a decision as to the most appropriate course of action at that time. We will contact you to advise you of this and ask that you make yourself available and contactable during work hours…”
[9] The Applicant stated that she was distressed by the show cause letter and sought immediate medical attention. The Applicant submitted that she obtained a medical certificate advising that she was receiving medical treatment.
[10] The Applicant sought an extension until 2 February 2021, from the employer, to respond to the show cause letter. This extension was granted by the Respondent. On Tuesday, 2 February 2021, the Applicant, through her legal representatives, then wrote to the Respondent and requested that she be provided until Friday, 12 February 2021, to submit her response to the allegations. The Applicant did not receive a response to this correspondence.
[11] On Thursday, 4 February 2021, the Applicant was summarily dismissed by the Respondent on the basis that she had engaged in serious misconduct. The termination letter signed by the director of Celotti workforce of 4 February 2021, stated as follows:
“Dear Roslyn,
RE: Notice of Termination
I refer to the please explain notice issued to you on 28 January 2021. This notice raised a number of concerns regarding your conduct in your role as Recruitment/Business Development Consultant at Celotti Australia Pty Ltd (‘Celotti’).
You were directed to provide a written response to these concerns by no later than close of business 29 January 2021. You were stood down from work on full pay throughout the required response period.
On 29 January 2021, you indicated that you required additional time to respond to our notice, citing two weeks as a reasonable timeframe. Celotti responded that we considered you had been provided with a reasonable period within which to respond to the concerns raised. Notwithstanding this, Celotti agreed to extend the timeframe for your response until close of business Tuesday, 2 February 2021.
As at close of business on 3 February 2021, you have provided no response to our please explain notice. You have now been notified on two occasions that if you did not respond and provide an explanation for the concerns raised, a decision would proceed on the information available to us.
After considering these matters, I have now come to a decision regarding the most appropriate course of action.
Please Explain Notice
In the please explain notice, you were directed to explain various concerns that have been identified with your conduct in the workplace, including concerns that:
1. you regularly make disparaging comments to, or in the presence of, other staff in the Darwin office about Nathan Weygood and Adrian Celotti, including comments regarding how the Celotti business is managed (see examples detailed in please explain notice);
2. you have engaged in conduct towards other staff members which, if proven, could constitute workplace bullying and harassment (see examples detailed in please explain notice);
3. in response to our lawful direction to stand you down while the above matters were investigated, you swore at Mr Weygood and made the following comments in an aggressive tone in the presence of other staff:
a. “This is a cuntish thing to do mate”;
b. “I have not done anything in this company to deserve what you’re doing to me”;
c. “This is fucking outrageous”; and
d. “This is bullshit what you’re doing Nathan”; and
4. after hanging up the phone to Mr Weygood, you stated words to the effect of:
a. “have fun in this shithole of a company girls” to Ms Nicole Le Hars and Ms George; and
b. “I have just been stood down with full pay by Nathan and he will not give me a reason as to why, this is absolutely outrageous! I have no idea what I have done wrong. I have done nothing but work my butt off for this company and have no idea what I have done to warrant this. I am on my way to see a lawyer”, in the presence of Ms Hilary Davidson and Mr Mark Oliveira.
Findings
In the absence of any information provided by you to contrary, I find that all of the allegations outlined in the please explain, including each of the specific examples detailed in that document, are substantiated.
Your substantiated conduct is extremely serious. It demonstrates a refusal or otherwise failure by you to conduct yourself in a respectful and professional manner in the workplace. It is conduct amounting to gross insubordination to senior management and persistent workplace bullying, which has created an imminent risk to the health and safety of Celotti staff.
It is conduct inconsistent with the continuation of the employment contract and is grounds for summary dismissal from your employment.
Our Considerations
On the basis of those findings, it is important that I now turn my mind to what is the most appropriate course of action.
In considering this, I have taken the following into consideration:
1. your length of service;
2. the seriousness of the matters raised; and
3. the opportunity provided to you to respond to these matters, which you elected not to avail yourself to.
Decision
After taking time to consider all of the relevant concerns, and in the absence of any information provided by you to the contrary, I find that your actions constitute serious misconduct within the meaning of rule 1.07 of the Fair Work Regulations 2009 (Cth).
On that basis, Celotti has made the decision to terminate your employment, effective immediately on the grounds of serious misconduct.
I ask that you arrange to return any Celotti property, information, or material as a matter of urgency. Arrangements will be made for the issuing of a separation certificate and the payment of any final monies owing upon receipt…”
RELEVANT LEGISLATION
[12] Pursuant to s.394 of the Act:
“394 Application for unfair dismissal remedy
(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.
…”
[13] Further, ss.386 and 387 of the Act relevantly provide as follows:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
[14] As to any remedy to be ordered, s.390 of the Act provides:
“390 When the FWC may order remedy for unfair dismissal
…
(3) The FWC must not order the payment of compensation to the person unless:
(a) the FWC is satisfied that reinstatement of the person is inappropriate; and
(b) the FWC 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.”
[15] Section 392 of the Act provides:
“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), the FWC 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 the FWC considers relevant.”
[16] Regulation 1.07 of the Fair Work Regulations 2009 provides the definition for serious misconduct, stating:
“Meaning of serious misconduct
(1) For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.
(2) For subregulation (1), conduct that is serious misconduct includes both of the following:
(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;
(b) conduct that causes serious and imminent risk to:
(i) the health or safety of a person; or
(ii) the reputation, viability or profitability of the employer's business.
(3) For subregulation (1), conduct that is serious misconduct includes each of the following:
(a) the employee, in the course of the employee's employment, engaging in:
(i) theft; or
(ii) fraud; or
(iii) assault; or
(iv) sexual harassment;
(b) the employee being intoxicated at work;
(c) the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee's contract of employment.
(4) Subregulation (3) does not apply if the employee is able to show that, in the circumstances, the conduct engaged in by the employee was not conduct that made employment in the period of notice unreasonable.”
SUMMARY OF THE APPLICANT’S SUBMISSIONS AND EVIDENCE, INCLUDING FINAL SUBMISSIONS
[17] The Applicant submitted that she was unfairly dismissed and sought reinstatement, along with an order maintaining continuity of service and back payment of wages for the period that she was unemployed. Alternatively, the Applicant sought compensation pursuant to s.392 of the Act.
[18] The Applicant was summarily dismissed on 4 February 2021, on the basis that she had engaged in serious misconduct (the letter is relevantly extracted above). The Applicant submitted that she denied the majority of the allegations against her, as recorded in the correspondence of 28 January 2021, and stated that she did not engage in the conduct alleged – being serious misconduct – because she did not engage in ‘gross insubordination to senior management’, nor did she engage in ‘persistent workplace bullying, which created an imminent risk to the health and safety of Celotti staff’. The Applicant submitted that the Respondent would be unable to prove, to the requisite standard, that she engaged in serious misconduct, as that term is defined at r.1.07 of the Fair Work Regulations 2009.
[19] The Applicant provided a witness statement in support of her application. The Applicant stated that apart from the matters resulting in her dismissal, she had not been advised of any issues with her conduct or performance during her employment with the Respondent.
[20] The Applicant stated that on 27 January 2021, she was stood down from her employment. She stated that she spoke with Mr Weygood at approximately 9:00am and he said to her, words to the effect of:
“I have been informed of allegations of serious misconduct against you. You are going to be stood down on full pay while an investigation is conducted. You must leave the building immediately.”
[21] In response, the Applicant stated that she was completely floored by Mr Weygood’s comments, as she had no prior notice of the meeting and no indication that there were any concerns with her conduct, let alone, concerns that she had engaged in serious misconduct. The Applicant said to Mr Weygood words to the effect of ‘What is this about?’ to which he responded ‘that’s all I am prepared to say at present’. The Applicant stated that she tried to press Mr Weygood for further details in relation to the allegations, however he refused to elaborate.
[22] The Applicant stated that she was extremely upset by the entire situation. She stated that she was worried about her employment and, given the seriousness with which Mr Weygood had described the conduct, her mind began to catastrophise the situation. She stated that she began to worry about losing her job and the financial impact that would have on her partner and herself.
[23] The Applicant further stated that she was also angry with Mr Weygood for the way that he had communicated the news of her stand down. She stated that she felt ambushed by Mr Weygood in that moment and upset that he would not provide her further details as to why she was being stood down, despite saying that certain allegations had been made against her.
[24] The Applicant stated that she began to feel unwell, and that she felt panicked and knew that she needed to speak to her general practitioner. The Applicant considered that she was not thinking straight in the immediate aftermath of being stood down and proceeded to leave the office immediately. She had been directed to leave the office and not discuss the matter with staff.
[25] At about 11.30am on 27 January 2021, the Applicant stated that she received an email from Mr Weygood in the following terms:
“Dear Ros,
Further to our discussion this morning, I confirm that some serious concerns have come to our attention regarding your conduct in the workplace.
Whilst a process is underway to consider those concerns, you have been directed to stay away from work. You will be paid during this time and we ask that you make yourself available during work hours should we need to contact you. Once we are in a position to, we will provide you with an opportunity to respond to the concerns.
In the meantime it is also appropriate that we direct you:
• Not to attend our offices;
• Not to make contact with any employee or associate of our organisation; and
• Keep these matters confidential.
Please understand that, if substantiated, these concerns could result in disciplinary action that could include the termination of your employment.
We must also warn you that any victimisation of Celotti employees or derogatory comments made to anyone about Celotti Workforce, its officers, management or employees will be taken very seriously and in itself, could constitute serious misconduct and could jeopardise the employment relationship as well as result in defamatory proceedings being brought.
We will be in touch with you as soon as we can. Can we please confirm the correct email address and phone number to contact you on?
Please ensure you make yourself available during work hours.
We understand that this is a difficult situation. If you require any assistance you may contact our Employee Assistance provider Access EAP on 1800818728
Kind regards
Nathan Weygood
General Manager”
[26] The Applicant stated that she burst into tears upon opening the above email. She stated that she contacted Maleys Lawyers and tried to book an appointment in order to obtain legal advice. She also made an appointment with her general practitioner, because she was concerned that her mental health was getting progressively worse.
[27] At about 1.30pm on 28 January 2021, the Applicant received an email from Mr Weygood with a copy of a letter attached. The letter asked her to ‘please explain’ her actions in relation to a number of allegations by 29 January 2021. The Applicant stated that she knew immediately that this was not a timeframe that she was able to comply with, particularly given her current mental state.
[28] The Applicant stated that she was upset by what she considers were largely fabricated allegations. She stated that she felt hopeless when she noticed that Mr Weygood was the alleged victim, witness and investigator, as she was worried that she would not be able to convince him to believe her version of events.
[29] The Applicant stated that she was able to engage Maleys to assist with preparing a request for an extension of time to respond to the letter, and to prepare her response. She also attended her doctor – Dr Khan –and was provided with a medical certificate.
[30] On Friday, 29 January 2021, the Applicant sent an email to Mr Celotti, Ms Suzie Celotti, Director, with copy to Mr Weygood in the following terms:
“Dear Suzie, Adrian and Nathan,
Thank you for the opportunity to respond to the letter from Mr Weygood, dated 28 January 2021. I refer and note the response date of 29 January 2021. This response time is neither reasonable nor fair due to the seriousness and magnitude of the allegations and accusations within. The time frame, demanded, of one day is unacceptable. Notably, two weeks is a reasonable time frame for my response. Allegations will be addressed in subsequent correspondence and I shall forward my response by close of business 12 February 2021.
Attached, for your records, is a letter from Dr Khan dated 29 January 2021. I am under his care and management due to acute stress and psychological distress caused by Mr Weygood.
Yours faithfully,
Roslyn Claydon”
[31] The Applicant stated that she attached a copy of the medical certificate that she had been provided by Dr Khan to the above email. The certificate dated 28 January 2021 set out that the Applicant was receiving treatment and had been under the Doctor’s care since 28 January 2021. 1
[32] At 5.55pm on 29 January 2021, the Applicant received an email from Mr Weygood in which he advised that the timeframe would be extended to Tuesday, 1 February 2021. Mr Weygood made a mistake in the email as 1 February 2021, was a Monday.
[33] On 2 February 2021, Mr Errol Chua, Solicitor for Maleys Solicitors, wrote to Mr Weygood on the Applicant’s behalf. In the correspondence from Mr Chua, he articulated the Applicant’s concerns with the short timeframe, requested an extension until 12 February 2021, and identified an issue with Mr Weygood’s involvement in the matter as an investigator/assessor of the truth of the allegations, when a number of the allegations related to him personally. The Applicant stated that she did not receive a response to this correspondence from the Respondent.
[34] At about 9.00am on 4 February 2021, the Applicant received a copy of a letter from Mr Weygood advising that her employment was being terminated with immediate effect because she had engaged in serious misconduct. The letter was signed by Mr Celotti.
[35] The Applicant, in her statement denied that she engaged in ‘gross insubordination’ and was unsure what conduct, specifically, Mr Celotti and/or Mr Weygood were referring to. The Applicant also denied that she engaged in ‘persistent workplace bullying, which created an imminent risk to the health and safety of Celotti staff’. To the extent that the determination that she engaged in workplace bullying was based on a finding that she engaged in the conduct that is described in the ‘please explain’ letter, the Applicant stated that such a finding is wrong, as she did not engage in that conduct.
[36] The Applicant stated that following the termination of her employment, she has not been able to secure alternative employment. She stated that Darwin is a small town and the labour hire/recruitment industry in Darwin is smaller again. There are limited employment opportunities in this field. The Applicant believes that she is likely to be further hindered in her ability to secure alternative employment due to her age, as at 56 years old, she considers that she is older than the majority of candidates applying for recruitment positions.
[37] The Applicant’s representative submitted that in considering whether there was a valid reason for the dismissal, a finding of fact must first be made as to what occurred and this must be undertaken on a consideration of the entire relevant factual matrix and based on sufficient inquiry as to whether the employee was guilty of the conduct which resulted in termination. 2
[38] Furthermore, it was emphasised that in the assessment of a valid reason, a consideration of the context of the alleged behaviour and the gravity of such must be undertaken. Further, that it must be recognised that any alleged conduct is not committed in a vacuum and the events should be assessed in relation to the interactions with other employees and the particular circumstances pre-empting the action. 3
[39] The Applicant’s representative submitted that the evidence of the Respondent should be closely scrutinised by the Commission and clear cogent or strict proof in relation to the allegations was required. Further that the Respondent held the onus of establishing the valid reason and that the alleged misconduct took place.
[40] It was submitted on behalf of the Applicant that the situation warranted a real discussion with the employee prior to termination. It was conceded that the Applicant was one of the Respondent’s most senior and long serving employees. Further that her style of communication was direct, that she was also regarded as a competent recruiter and valued employee of the Respondent. In addition, it was submitted on her behalf that she engaged in training and development and supervising of junior staff. The employer had critiqued the manner in which the Applicant had undertaken these roles in terms of the allegations made.
[41] It was submitted on behalf of the Applicant that she had experienced no issues in regard to her conduct, capacity or performance in the role, prior to Ms Charlotte George commencing work in the Darwin office. It was submitted that the Applicant had worked with Ms George for a limited time when the Applicant’s absence on leave and work related matters was taken into account during the December and January period, prior to the dismissal.
[42] The submission on behalf of the Applicant was that there was a factual dispute as to whether the Applicant was provided with a confidentiality direction by Mr Weygood during the course of the telephone call on 27 January 2021, when the Applicant was stood down.
[43] The Applicant however does concede that after the conclusion of that call (taken in an open plan office) she said to Ms Le Hars and Ms George, “Have fun in this shithole of a company girls”. She also stated that she remarked to Ms Davidson and Mr Oliveria that she had been stood down on full pay by Mr Weygood, without reason and that it was absolutely outrageous considering she had done nothing wrong and had worked her ‘butt off’ for the company and was on her way to see a lawyer.
[44] The further process with regard to Mr Weygood’s email in relation to the standdown and the please explain letter was set out in the evidence as were the 12 allegations. 4 The Applicant stated that the Respondent conveyed to her:
‘Your substantiated conduct is extremely serious. It demonstrates a refusal or otherwise failure by you to conduct yourself in a respectful and professional manner in the workplace. It is conduct amounting to gross insubordination to senior management and persistent workplace bullying, which has created an imminent risk to the health and safety of Celotti staff. It is conduct inconsistent with the continuation of the employment contract and is grounds for summary dismissal from your employment.’ 5
[45] The Applicant set out that she was not provided with notice of termination or payment in lieu of notice, nor the outstanding commission payments relating to her work prior to the termination of her employment.
[46] It was referenced that the primary point of contention between the parties was whether a valid reason existed for the dismissal on the allegations. It was submitted on behalf of the Applicant that she had demonstrated good recall in her evidence and whilst it was set out that the Applicant’s tone of voice in providing her evidence may have had ‘an edge’ to it, her demeanour was not rude or disrespectful during cross-examination and that she was a reliable witness.
[47] In contrast it was submitted that Ms Davidson was confused in her evidence, about conversations occurring in the lunchroom over the short period they work together given the Applicant established there was no specific lunchroom nor was any employee entitled to overtime which it was submitted undermined her evidence on the subject.
[48] It was identified that Ms Le Hars had worked with the Applicant for a much longer period, and it was recognised that the Applicant had been interested in her professional development and some of the conduct attributed to the Applicant could be considered functions of a supervisor. She also recognised that the Applicant had driven Ms George to work in circumstances where she had no obligation to do so. It was also submitted that in relation to Ms George’s completion of the contracts, that this was an appropriate request.
[49] It was argued that the evidence of Ms Maleimi was considered to be somewhat evasive and cautious with her responses. Such was explained; as her wanting to maintain her ongoing employment. She admitted to being an active participant in collegiate discussions with the Applicant regarding some of management’s responses and questioning the nature of some meetings.
[50] Ms George had referred to the decline in the relationship with the Applicant and that she had become upset and dissatisfied with the Applicant’s monitoring of her work and unreasonable responses. She had conceded how it could be understood that the Applicant was in a supervisory role. In relation to the recruitment ‘incident’, she had been unwilling to accept an error had been made in relation to her selection of the candidate and set out that there had been an absence of any direct advice in relation to such from the client.
[51] It was submitted on behalf of the Applicant that the culture of the workplace had allowed for swearing and that the comment ‘put a muzzle on it’ was attributed to Mr Weygood in circumstances where he was asking Ms George to be quiet during a meeting. He had confirmed that he was not the investigator in relation to the complaints put to the Applicant and that the allegations had been put to the Applicant and simultaneously to the staff.
[52] It was submitted that Mr Weygood has been evasive in his evidence, in relation to his level of involvement in the termination decision. However, he directly affirmed that the Director of the business had been the decisionmaker in relation to the dismissal.
[53] It was submitted on behalf of the Applicant that there was a lack of clarity in relation to the reasons for the dismissal and that in regard to the allegations it was submitted that there was no substantiation that the Applicant had made disparaging comments to staff the General Manager or the Director of the business. However, the Applicant had admitted to calling the General Manager a ‘wanker’ at the morning meeting, however she stated this was responsive to concerns expressed to her regarding his conduct of the Christmas party. She denied referring to the general manager as incompetent or that procedures implemented by the Respondent were illegal.
[54] The Applicant denied engaging in bullying or negative behaviour towards other staff and explained that any such instances were considered reasonable management action such as administering corrections in regard to grammatical errors and mistakes made by Ms George. She denied demanding Ms George fetch things for her or that she treated her as a personal assistant to perform menial tasks (in an impolite tone).
[55] It was submitted on behalf of the Applicant that the sub-allegations in relation to 9,10, 11 and 12 were not substantiated. In relation to the swearing at Mr Weygood, the Applicant was apologetic and remorseful and stated that the circumstances of extreme stress and uncertainty played into the situation. She denied she breached a lawful and reasonable direction regarding, leaving the workplace and maintaining the confidentiality of the matters.
[56] It was submitted on behalf of the Applicant that the dismissal was unfair as she was not afforded the two weeks she requested to respond to the allegations, also that she was not warned regarding the unsatisfactory performance prior to the dismissal. In addition, it was argued that the Applicant’s personal circumstances in relation to her age and location in Darwin rendered her dismissal disproportionately harsh in terms of the impact on her and her partner. The Applicant did not provide evidence regarding her attempts to mitigate her loss and she said that she had been unable to secure alternative employment and sought reinstatement, continuity of service and back payment of wages.
[57] In terms of reinstatement, she noted that the general manager was based in another office and that some of the staff members had now left the employer. Further that an order of compensation would not have an effect on the viability of the Respondent’s business where the Respondent was a relatively large employer of labour hire workers in addition to its own staff. It was also noted that the Applicant had been employed for some 2 1/2 years. Without particular detail she did indicate that she had applied for a number of roles, however that her dismissal and the restraint clause in her employment contract had confined her ability to secure other employment.
[58] It was argued on behalf of the Applicant that the length of the continuing employment relationship would have been indefinite for the foreseeable future. Alternatively, it was submitted that if a procedurally fair process had been observed, the length of the continuing employment relationship would have been at least two weeks with the payment of the Applicant’s statutory notice period being three weeks wages as an additional payment.
[59] Further submissions and evidence on behalf of the Applicant are referred to later in this decision. The Applicant’s response in reply to the show cause letter is set out in full later in this decision.
SUMMARY OF THE RESPONDENT’S SUBMISSIONS AND EVIDENCE
Witness statement of Nathan Weygood
[60] Mr Weygood, General Manager for the Respondent, filed a witness statement in these proceedings. Mr Weygood has held this role since around May 2020, and was the Applicant’s direct manager during her employment with the Respondent. Mr Weygood stated that to the best of his knowledge, prior to his commencement the Applicant’s direct manager was Mr Adrian Celotti, the Respondent’s Director.
[61] Mr Weygood noted that as he was based in Brisbane Queensland, his primary interactions with the Applicant occurred via Microsoft Teams meetings and mobile phone. He did travel to Darwin and the employees had all been together for the recent Christmas Party. He stated that the video meetings occurred daily, and his observation was that the Applicant’s demeanour in meetings was very authoritative, and she rarely allowed her colleagues to speak. He said that even when Ms George or Ms Le Hars was directly asked a question about what the work they were doing that day, the Applicant would frequently cut in and respond instead. Mr Weygood said he would often have to tell the Applicant that she needed to let others speak.
[62] Mr Weygood did not recall personally hearing the Applicant say negative comments about him, but said that if the Applicant made a comment in Teams Meetings or on the phone that he felt was unprofessional, he would address it ‘then and there’. He also stated that if the Applicant did not agree with proposed processes, she would roll her eyes and make clear with body language and her tone of voice that she did not agree.
[63] Mr Weygood stated that Ms George approached him a few times to state she was having difficulty working with the Applicant. He stated further that other staff members had made informal comments to the same effect.
[64] Mr Weygood’s evidence is that he had raised with the Applicant that she needed to provide positive feedback to staff and allow staff members to feel heard. He said that he also advised the Applicant she needed to be able to accept circumstances where the business made decisions she did not necessarily support. Mr Weygood stated however that prior to receiving a ‘fulsome formal complaint’, he was not aware of the severity of the Applicant’s workplace conduct; and once the Respondent was made aware of the concerns, it took immediate steps by standing down the Applicant and follow a due process as outlined below.
Stand Down Process
[65] Mr Weygood received a formal complaint on 21 January 2021, which raised serious allegations regarding the Applicant’s workplace conduct. He annexed a copy of this letter to his statement. 6 The formal complaint was signed by Charlotte George. Mr Weygood stated that a decision was then made to stand the Applicant down, to allow the concerns to be put to the Applicant and seek a response.
[66] Mr Weygood gave evidence that he made several attempts to contact the Applicant by phone on the morning of 27 January 2020, to stand her down prior to her commencing work for the day. He stated that he also sent her a text message requesting a call ‘ASAP’. He said that the Applicant telephoned him at 8:35am (Qld Time) while he was driving to a client meeting. He stated that he verbally advised the Applicant that she was being stood down, effective immediately, as there had been some allegations put to him that needed to be investigated. Mr Weygood’s evidence was that this was not a meeting as characterised by the Applicant; rather it was a direction from the Respondent, as her employer, to stand her down from her employment pending investigation of relevant matters.
[67] Mr Weygood stated that, had the Applicant engaged in the disciplinary process proposed, the Respondent would not have denied her the opportunity to have a support person present at any meeting that was subsequently scheduled. His evidence is that when he advised the Applicant she was being stood down, she asked what the allegations were and said words to the effect of “this is outrageous”. Mr Weygood said that he told the Applicant he needed to further consider the allegations, and said words to the effect of: “I will provide you with an opportunity to respond in a formal meeting, but until then I need you to not come into the workplace or talk to anyone in the office.” He said that he apologised for the stand down having to take place, and explained that he had been trying to contact the Applicant since 7.15 am (NT Time) that morning.
[68] Mr Weygood said he and the Applicant discussed the best contact details for her, and the Applicant advised she did not have a personal phone number. Mr Weygood confirmed the Applicant could keep the work car and phone but directed her not to contact anyone work related. He said that the Applicant said words to the effect of: “You need to tell me why I have been stood down, it’s my legal right, this is fucking outrageous”. Mr Weygood stated however that he did not consider it appropriate to provide her with further details at the time, particularly as she was in the office with other employees and it was a potential health and safety issue. Mr Weygood gave evidence that he repeated what he had already said to the Applicant, and that she replied: “This is a massive cunt act, its fucking outrageous, I’ve done nothing wrong.” Mr Weygood responded with words to the effect of:
“Ros, I think it’s really inappropriate for you to be speaking to me like this and if all you are going to do is yell expletives at me, I suggest we stop the conversation and I request that you leave the building immediately. You can take the car and the phone but leave your laptop in the office.”
[69] He said that the Applicant told him he would hear from her ‘fucking lawyers’, and hung up the call.
[70] Mr Weygood sent the Applicant an email at 12.57pm on 27 January 2021, confirming that serious concerns had come to the Respondent’s attention regarding her conduct, and that she had been directed to stay away from work and would be paid while the process was underway to consider those concerns. He annexed a copy of this correspondence to his statement. 7
[71] Mr Weygood stated the Applicant was provided a‘please explain’ letter on 28 January 2021 and directed to respond by close of business on 29 January 2021. He noted the Applicant was stood down from work on full pay throughout the required response period. Mr Weygood stated the Applicant then sought a two week extension for providing her response, and that he responded noting that the Respondent considered she had been provided a reasonable timeframe to provide her response, but granted an extension until close of business Tuesday, 1 February 2021. He noted the typographical error, as it should have provided Tuesday, 2 February 2021.
[72] Mr Weygood gave evidence that rather than engaging with the disciplinary process, the Applicant chose to engage legal representation and sent correspondence on 2 February 2021, again requesting further time to provide her responses to the allegations. Mr Weygood’s evidence is that the Respondent did not respond to the Applicant’s legal representatives “as the matter was a workplace disciplinary process, and the Applicant had already been granted an extension”, and her response was due the day of the further correspondence. Mr Weygood said that the Applicant had already been advised that a decision would be made on the information available to the Respondent, if no response was received from the Applicant. Mr Weygood’s evidence is that in the absence of a confirmed extension from the employer, there was an expectation by the Respondent that the Applicant would respond to the ‘please explain’ process. He said that in lieu of receiving any response, the employer considered the allegations on the information before it, which included enquiries with relevant staff. No response was received and the employer determined the claims against the Applicant were substantiated. The decision was subsequently made to summarily dismiss the Applicant.
[73] Mr Weygood’s evidence was that he was not an investigator or decision maker regarding the Applicant’s dismissal, as alleged in her statement. He stated that in his role as General Manager, he reasonably initiated the stand down of the Applicant and the disciplinary process. He stated that he kept Mr Celotti updated throughout the process, and Mr Celotti was ultimately responsible for assessing the Applicant’s response, which was not received, and other relevant information in making his final decision around the Applicant’s dismissal. Mr Weygood noted, during cross examination, that this is why Mr Celotti provided the notice of termination to the Applicant.
Applicant’s application for unfair dismissal remedy
[74] Mr Weygood noted that the Applicant’s application for unfair dismissal remedy sought to provide a comprehensive response to the please explain letter. He said however the Respondent was never provided a copy of this document, (set out below) and was unable to consider the information at the time of making the final decision regarding her dismissal.
[75] Mr Weygood also stated that the Applicant’s ability to compile that response by the due date demonstrated she was capable of responding to the Respondent within the timeframe proposed and had chosen not to do so. However, nothing provided altered the reasons for the decision that was made.
Response to show cause letter from the Applicant
[76] In his statement, Mr Weygood referred to the Applicant’s document, that was drafted in response to the Respondent’s show cause letter. A copy of this response was attached to Mr Weygood’s statement. The letter from the Applicant was dated, 30 January 2021, it is therefore uncertain why the Applicant could not meet the Respondent’s deadline for this response. The document is set out below:
“30 January 2021
Suzie and Adrian Celotti
Celotti Workforce Pty Ltd
Level 1, 28 Parap Rd Parap NT 0804
Dear Suzie and Adrian,
I refer and note the letter received from Mr Weygood, dated 28 January 2021. I question Mr Weygood’s ability to be impartial in this quasi and punitive investigation. I am at a great disadvantage by no provision of an alternate forum to deal with this complaint and am denied procedural fairness. I have my own witnesses who would defend me but they are fearful of repercussions.
I now address the spurious allegations;
1. It is alleged that you regularly make disparaging comments to, or in the presence of, other staff in the Darwin office about Nathan Weygood and Adrian Celotti, including comments regarding how the Celotti business is managed.
Over the period commencing 7 December 2020 to date specific examples of this behaviour include the following comments made by you in morning meetings:
a. you have referred to Nathan Weygood as a “wanker” and “incompetent”; and
b. you have referred to procedures implemented by Celotti as “illegal”.
1. Disagree - I have never made disparaging comments about Mr Celotti, until now he is someone, I had a huge amount of respect for and considered a friend. I have worked very hard on his behalf to build and grow the NT sector of the Celotti and Tracks Indigenous Services Businesses. Nor have I made any disparaging remarks into the way the Celotti business is run.
I did query Mr Celotti in regard to the current staff numbers as I was concerned as to the profitability of the business, he told me that we needed the numbers to enable us to grow the business.
a. Agreed - I have referred to Mr Weygood as a wanker, it is important that this is now put into context. Mr Weygood came to the Darwin branch prior to Christmas to meet us all and attend the Christmas Party. After the Christmas Party dinner, my partner and I left and the others continued on into town. When we all got back to work on the Monday, I asked the girls how it all finished up. Mr Weygood allegedly got extremely drunk and both Miss Le Hars and Miss George stated that “he creeped them out and that they felt uncomfortable around him” also that they were not happy with the way he was touching their arms and putting his arm around them. I had been concerned at the way he was looking at the younger female members of the staff in the office prior to this event. I advised them that should anything occur that they were not comfortable with and unable to deal with themselves I would do something about it on their behalf. I then mentioned it was hard to have respect for a man that behaved in this fashion who has no etiquette and the most disgusting table manners. I then stated “don’t worry about it, he is just a wanker” and assured them that I would protect them if necessary.
Disagree - I have never referred to My Weygood as incompetent.
b. Disagree – Procedures implemented
Agree – Illegal. When Miss Le Hars became close to completing her Cert III in Business Administration, she asked me what her salary would be once qualified. Together we looked up the Fair Work web site and what her salary should have become. This was a good training opportunity as well, as we constantly refer to this to ensure we pay people legally. When she had completed her course, she did not receive the pay rise expected. Miss Le Hars was very disappointed by this, I asked Mr Celotti why she was not being paid as per the Clerks Private Sector Award, he stated he had sought legal advice and she was still being paid as a trainee under the National Employment Standards. My understanding is that to be considered a trainee the individual must be engaged in a Nationally accredited training programme, she is not. My belief is that she should also be receiving the 17.5%loading on any holiday pay, she is not. I did bring this up to both Mr Celotti and then Mr Weygood when he assumed the General Managers position. I received a very nasty email from Mr Weygood, stating along the lines of that my conversations with Miss Le Hars were to stop and that she reported to Mr Weygood not myself. I did not acknowledge or respond to this email. Up until Mr Weygood commenced Miss Le Hars had in fact been reporting to me and I had been her manager, trainer and mentor, including mentoring her for a variety of personal issues she was facing, it was only natural that she should come to me for advice.
Of further concern are contracts in place, which I have written, with host companies who are engaging apprentices. On the contracts with these companies there is a clause, that states any Government funding for employment will be shared 50/50 and their portion would be issued by way of a credit. Payment of their portion has not occurred. I asked Mr Celotti about this, he stated “it is not on their contracts” then once I advised him that this in fact is on their contracts he then stated aggressively “they have not asked for it”. I then mentioned this to Mr Weygood in his position as General Manager and his comment was “I do not blame Adrian for not paying this” This surely is not acceptable and a violation of the contract.
When Mr Wedgwood issued the new Commission structure I refused to sign, and he attempted to bully me into signing it via telephone, his conversation with me became heated and aggressive to end the telephone call, I told him I think you will find there are some legal ramifications in regard to this, and that I would seek counsel and get back to him, this enraged him further. I sought legal advice and the advice I received was that all money that had been earnt needed to be paid within one month of said earnings. The current structure is to pay commissions two and a half months in arrears. Also that should you leave employment no commission earnt would be payable, again from the legal advice I received, money earnt is money payable. I presented my findings to Mr Weygood, he presented me with a different understanding from his legal advice. This then culminated in the abhorrent meeting outlined below. I have still not signed said document. We were able to reach agreement on the amount payable. The other thing that concerns me is that when Mr Celotti introduced the initial deduction to commission structure the amount that it was reduced by would go to colleagues.
I agreed to this as I thought it was fair and reasonable for my colleagues to get some benefit as well. No payment has been made to these individuals. Celotti is effectively pocketing these amounts. Although probably not illegal definitely immoral and unfair.
Recently when my work computer was fixed by IT there was a different email address that I had access. In this was a receipt from Job Keeper for two payments for Mrs Celotti, I feel quite sure that a Director of numerous businesses, with Directors drawings and a salary from each that this is not what this Government incentive was meant for. I also believe that the personal amounts of expenditure that are written off against the Celotti business is questionable.
I have been repeatedly on call for the whole business with no extra remuneration or time in lieu and I have not been receiving the 17.5% holiday loading. I have been on call for my clients and candidates 24/7 again with no extra remuneration or time in lieu. This has included during holiday time taken.
I often attended after hours work functions as part of my Business Development again with no extra remuneration or time in lieu.
2. I vigorously deny the following;
a. On several occasions you have made inappropriate comments to staff in morning meetings regarding their clothing, you have also referred to a number of Celotti staff as “incompetent”.
a. Disagree - I have never made any comment with regard to anyone’s clothing. Fashion is not something I have any interest in, nor would I comment on this as I am simply not interested. The only individual that I have called incompetent is Amber (can not recall surname) who was engaged for a very short period of time and was clearly not capable of undertaking the position for which she was engaged, she has since left the business.
a. You are overly critical of Ms George in her performance of her role. You frequently critique Ms George’s work and emails and make a point of identifying minor grammatical errors and mistakes. (note alphabetizing is incorrect, this point should be b. and so on)
Disagree - Professional presentation of written communication externally is a vital part of Celotti’s image. I have not been overly critical, when I discovered the poor level of grammatical skills, I would recommend the correct grammar and instigated discussions. Whereby when grammatical errors and mistakes were made both Miss Le Hars and Miss George would look up on the net the correct way of doing things. Miss George would never just take my word for any inaccuracies and always needed to refer to another source. I saw this as a healthy learning environment which would improve both of their command of appropriate language. This then created further discussions around the correct way of doing things, which I believed was a good training tool. Professional presentation is also important to Miss George, with the information that was submitted by Mr Weygood to Kolsen, Miss George was very angry that she had not been allowed to submit the candidates directly to the client and that Mr Weygood had insisted on doing it himself. Miss George had spent some considerable time undertaking interview notes and reference check for Mr Weygood to enable him to submit the details. When she discovered his submission on the system, she was furious at the illiteracy and unprofessional submission which included none of the details she had provided. She confronted Mr Celotti about his.
b. You are disrespectful to Ms George and treat her like a personal assistant, including by directing her to perform menial tasks in an impolite tone, using words to the effect of “fetch me that” or “do this for me now”. This is despite the fact that Ms George is not your assistant and is a direct report to Mr Weygood.
b. Disagree - I have never disrespected Miss George and I do not treat her as a personal assistant. My understanding is that via a convoluted chain of command she is there to assist myself and other Business Developers with their requirements. The job is menial by nature, data entry, reference checks etc are monotonous and repetitive. I have never been impolite to Ms George and I certainly would never use the term “fetchâ€. I make a point every day of saying thank you and when deserved well done to both Ms George and Ms Le Hars. I have absolutely requested could she “please do the references for this person now, or could you please concentrate on this specific task first or the draft advertisement has been approved can you please post it now†in order to fulfil client deadlines. Although Ms George is not my direct report once we have had our morning meetings and the work has been assigned in practicality if she is working on my clients it is me that is required to give her the direction, she requires to undertake her duties. This has always been done in a courteous and considerate fashion.
c. You are dismissive of the opinions of other Celotti staff, particularly when those opinions do not align with your own. For example, in a recent discussion with Ms George regarding uniforms for candidates at Broadspectrum, you both had conflicting recollections as to what the client instructions were. When this was followed up with the client, the answer did not align with what you perceived to be correct. Regardless, you still insisted that Ms George (and by extension the client) was wrong and directed that the candidates wear the uniforms you wanted them to. This conduct by you, if proven, shows an inability or otherwise failure to work with your colleagues in a productive manner, to follow client instructions and to accept that at times, the information you perceive to be accurate is incorrect.
c. Disagree - This statement is simply false. Myself and Ms George attended a client meeting for Broadspectrum to discuss the positions coming up. I only included her in this meeting as I thought it would give her a better understanding of the client requirements and enable her to recruit more effectively, also to involve her to enable her to feel included. After the meeting whilst we were going through the details, she mentioned that work boots were not what was required. I checked my notes which stated non slip, work boots and advised her that we would seek clarification. Which occurred at a subsequent meeting. To suggest there was any conflict between myself and Miss George on this occasion is ludicrous. To suggest I would direct candidates to wear what I wanted them to is laughable. To suggest I am perceiving information given inaccurately is ridiculous.
d. While you were on leave over Christmas you left a list of jobs to be completed by Ms George. This job list included the recruitment of a Crane Engineer for (redacted). You provided Ms George with the details in Job Adder and a list of bullet points for the role. Ms George utilised this information and found a candidate. She then cross checked her choice of candidate with Mr Adrian Celotti, who agreed with her choice. The candidate was subsequently submitted to the client.
When you returned from work you criticized Ms George’s choice for approximately 15 minutes, outlining why Ms George had made a mistake in putting the candidate forward. It is alleged that during this discussion you told Ms George “it isn’t your fault; Adrian shouldn’t have let you do it” in what was perceived to be a belittling tone. You then stated that the client relationship was “completely ruined” and that the client had said “Why are you sending us this shit? You have never done it before. What has happened to your office?”.
If a client made a complaint of this nature, it is an expectation of Celotti that management is immediately notified. It is not useful or constructive to inform staff that their choice of candidate was so poor that it effectively severed a client relationship. It is expected that in your role as Manager, you provide appropriate training and guidance regarding what is instead required of staff in the future.
You were also overheard by staff on 18 January 2021, while in discussions with Mr Weygood, stating words to the effect of “Nobody is competent at filling my jobs because they are too complex, not even Nicola or Vilisi could do them.” You then stated that Ms George was provided with concise instructions regarding the above candidate (notwithstanding this is incorrect).
d. Disagree - Over Christmas I did give Miss George a list of things that need attention whilst I was on leave. I told her not to really worry about the Crane Engineer as this position would be very difficult to fill and that the client was extremely pedantic. The position in JobAdder has a full position description. When I returned to work and discovered the individual that had been submitted. I asked why, she told me that Mr Celotti had approved the submission. I tried to explain to her why he was not suitable, she became agitated and argumentative. Informing me if this person was not adequate, I would need to change the way the advertisement was written. Even though I tried to explain it to her the requirement of previous experience working with cranes in an oil and gas offshore environment was the fundamental pre requisite she failed to understand why the person submitted was not suitable. This highlights her inexperience, particularly in the technical oil and gas environment. I would have thought that Mr Celotti would have a greater understanding, a Mechanical Engineer is not necessarily a Crane expert, although they may be able to meet all other criteria for the position, which her candidate did, however he did not have any required prerequisite of crane experience or from memory offshore experience. I did not state the client relationship was ruined I stated “this has damaged the client relationship” The comment from the client when I followed up on her submission was less than favourable I cannot recall the exact words but along the lines of “why are you sending me this shit, you do not normally waste my time with people who will be of no use, what is happening” The reason the conversation with Miss George was lengthy was she became argumentative, defensive, belligerent and aggressive, wanting to go through the Advertisement, which we did. Even so she was still not able to grasp the primary prerequisite of crane experience. The relationship with the client has not been severed, Miss George is aware of this. I have subsequently submitted two other potentially suitable candidates and with being stood down have not been able to follow up. I did not bother to inform Mr Weygood of the client’s displeasure as I saw no point, it was not a major issue and the relationship is fully rectified.
On the 18 January 2021 I did have a discussion with Mr Weygood, I was expressing my concerns of junior new recruits’ ability to fill my complex oil and gas offshore positions as there are numerous mandatory tickets involved, complex medicals, not to mention the complexities of specific specialised tasks undertaken. I did mention there is no one else in the organisation that currently has the ability to work on these positions including Mr Weygood, Ms Armone and Ms James, simply because they have had no exposure to this industry. Mr Weygood agreed with this and we both agreed that training was required. It is impossible in our offices to have a conversation privately as it is open plan and even if you go into one of the adjoining rooms all conversation can be heard. There was nothing derogatory in this comment.
e. You belittle Ms George in her role and place unreasonable expectations on her performance. For example, on 15 January 2021, you needed to finalise two contracts before you left work for the day. In the first instance you did not provide adequate information to Ms George to input into the contracts and subsequently took a phone call without providing this information. In the absence of further details, Ms George used the details in Job Adder to complete the contract. Ms George made an error regarding the correct date on the first draft. When provided with the second draft you told Ms George she had the job title wrong, despite the fact that you did not provide this information to Ms George, so she was required to utilise the details in Job Adder. It is alleged that you then told Ms George to “hurry up and don’t make mistakes”, in what was perceived to be a rude tone.
The third version of the document had another error being the incorrect supervisor name. Ms George had input the information that you provided her in this instance, though she was later informed by you that this information was incorrect. Despite this, you said words to the effect of:
“Nicole wouldn’t make this many mistakes”; and
“Nicole has only ever had to redo these twice”,
to which Ms George responded that she needs the correct information and time to read her work, without being rushed. Ms George then completed the contract correctly once you were off the phone and provided the correct details. While Ms George printed the forms, it is alleged you continued to make belittling comments to Ms George comparing her mistakes to Nicole’s work.
Ultimately, Ms George said words to the effect of “Ros, can you please stop making these comments, they’re making me feel upset and putting me down and I don’t like them”, to which you responded that you were joking and asked, “is it because you’re feeling bad because you’re making mistakes?”.
Disagree - I have never belittled Miss George or placed unreasonable expectations on her. On 15 January 2021 two contracts indeed needed to be produced, note this is the first time that Ms George has produced a contract for my review and sign off. It was the last task required on a Friday afternoon. Miss Le Hars, Miss George and myself were keen to finish up for the day, the request was well before official knock off time. Full details of the positions and start date were on JobAdder for Ms George to refer too. Miss Le Hars was standing in attendance to assist her and collect the documents off the printer for approval and sign off. I did take a phone call from a client, which she then insisted in rudely interrupting, demanding my attention, rather than referring to the available detail’s in JobAdder. I had to actually excuse myself from the call briefly to address her rude and forceful interruption. With the third incorrect document produced she became angry and belligerent. I in fact told her to slow down and pay attention to the details. I attempted to lessen her anxiety by making a joke in regard to Miss Le Hars learning curve with these sorts of documents. Ms George had the correct information and was not being made to rush and I believe got angry with herself for the mistakes made. Miss George makes a habit of rudely interrupting when I am on a phone call as when she is demanding my attention, she has no concept of waiting until an appropriate time.
f. You make comments to other staff about perceived mistakes made by Ms George in the performance of her role. More specifically, over the past week there are a number of occasions when Ms George has left the room that you have made belittling comments about her personally and about her work ethic. An example of this is the production of handouts for the Broadspectrum event where there was a disagreement regarding the number of handouts produced for the event. You made a comment to the effect of “[Ms George is] getting up your nose because she doesn’t listen and do as she is told”.
Further examples include recent comments to the effect of:
“Charlotte is far too loud; I don’t know how to tell her without upsetting her. She’s just there, in my ear all the time”; and ”.
“Charlotte is always flossing about making tea
Disagree - I have never made comments to other staff about perceived mistakes made by Miss George as she has not made any other than the contracts mentioned above. I have never made belittling comments about her personally or about her work ethic. Ms George had nothing to do with the conversation between myself and my client in regard to the number of the handouts required for the briefing. As directed by my client with no involvement from Miss George I created sixty as requested. I then requested that she print off sixty copies of a client specific document and add it to the packs which I had created. There was certainly no disagreement regarding the number as she was not privy to the conversation with the client and had no knowledge of what had been requested.
I did have a conversation with Miss Le Hars in regard to how loud Miss George is in the office as I was not sure how to address this without creating offence. Miss Le Hars responded that everyone in the office shouted and no further comment was made.
In addition to this alleged conduct, we are further concerned by your response today to our lawful direction to stand you down while these matters are investigated. In response to receiving a lawful workplace direction not to attend work, you swore at Mr Weygood and made the following comments in an aggressive tone:
a. “This is a cuntish thing to do mate";
b. " I have not done anything in this company to deserve what you’re doing to me";
c. "This is fucking outrageous"; and
d. "This is bullshit what you’re doing Nathan".
These comments were made in the presence of other Celotti staff members.
Agreed – My actual statement was “this is a cunt act”, the rest is as I recall. I unreservedly apologise for my expletives. They were uttered under extreme duress, shock and anger.
After hanging up the phone to Mr Weygood, you then stated words to the effect of:
a. “Have fun in this shithole of a company girls” to Ms Nicole Le Hars and Ms George; and
a. Agreed – Again under extreme shock and duress
b. “I have just been stood down with full pay by Nathan and he will not give me a reason as to why, this is absolutely outrageous! I have no idea what I have done wrong. I have done nothing but work my butt off for this company and have no idea what I have done to warrant this. I am on my way to see a lawyer”, in the presence of Ms Hilary Davidson and Mr Mark Oliveira. These comments were made after you had been given a lawful and reasonable directive to leave the building immediately and not to speak about the matter with staff.
Agreed – However, it was requested I leave the building which I did immediately. I was not directed to not speak about this matter to staff at this point.
I need to now put into context the position of Miss George. Miss George has only been in the Darwin branch since the 7 December 2020. Up until I was stood down, I have only interacted with her for approximately five weeks due to leave taken over the period. Also, throughout this period she has worked on other jobs which have had nothing to do with me, the only involvement I have had with her has been when actually working on my jobs. When Miss George first got to Darwin and commenced work, for the period leading up to Christmas I went out of my way morning and afternoon to collect her from her home and get her to work as the vehicle she had was not working. I did my utmost to make her feel welcome and valued. The first thing Miss George did when she commenced work in the Darwin Branch was too bad mouth her colleagues from Brisbane including Mr Weygood. Comments about how bitchy they were, how glad she was to be out of that environment and here. I assured her that I would not stand for any of this sort of behaviour in this office and that it simply would not occur. She also stated that she had felt bullied by Mr Weygood as she had commenced as a casual in the Queensland office so that she could undertake the necessary packing etc to move to Darwin and did not have access to a vehicle. Mr Weygood was constantly ringing her and insisting she come to work and that he would pick her up, she felt that this was being bullied. I also advised that I was there for her and if she had any issues, she could not cope with I would be happy to assist her by talking to Management if necessary. Miss Le Hars reiterated to her that I was a caring and constructive manager and that she had not had any issues with me and that I had on occasion gone to management, all be with it to not avail, on her behalf.
I would now like to bring to your attention serious concerns with regard to the bullying conduct I have received from My Weygood and Mr Celotti. On Friday 23 October I was called into a meeting by Mr Weygood and Mr Celotti after I had refused to sign the new commission structure, I was sat into the meeting next to Mr Celotti and Mr Weygood was present via Teams. Mr Weygood brought up a document on a shared screen which was too small to be read. I requested that he forward me the document so I could read it, this did not occur until after the meeting. He then proceeded to read the document to me verbatim without a copy I could refer too, at any time I attempted to make any form of statement or question I was yelled at by Mr Celotti. “Just let him speak, just let him finish”. I became increasingly distressed and frustrated by not being allowed any right of reply. I burst into uncontrollable tears of frustration which I was unable to stop. This included going from this meeting straight into a general Friday team meeting and I sat crying the entire way through, finally walking out of the room in tears towards the end of the second meeting. My tears of frustration were unstoppable for over two hours following this disgusting episode. I have also had to confront Mr Celotti with regard to the way he has spoken to me in the office, several times. When he rang to speak to me after work hours, I asked him if he had any issues with me, he stated no. I then told him I did not expect to be yelled at like a small child in the office in front of my colleagues. He apologised.
“• Whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is appropriate but while it will often be an important consideration it is not the sole criterion or even a necessary one in determining whether or not to order reinstatement.
• An allegation that there has been a loss of trust and confidence must be soundly and rationally based and it is important to carefully scrutinise a claim that reinstatement is inappropriate because of a loss of confidence in the employee. The onus of establishing a loss of trust and confidence rests on the party making the assertion. 57
[277] The Full Bench in Nguyen concluded that, “[u]ltimately, the question is whether there can be a sufficient level of trust and confidence restored to make the relationship viable and productive. In making this assessment, it is appropriate to consider the rationality of any attitude taken by a party.”58
[278] In accordance with the Full Bench decision of Newton v Toll Transport Pty Ltd, 59 conduct that has occurred months after a dismissal cannot be considered in determination of whether the employer had a valid reason for the dismissal, however post dismissal conduct can be relevant to the assessment as to whether reinstatement is an appropriate remedy in the circumstances. In the present matter, the Applicant’s conduct in accessing and deactivating the Respondent’s LinkedIn page, (being an essential business tool) and not advising the employer, is relevant to the assessment that reinstatement was not appropriate in the circumstances. In terms of the conduct complained of, the following exchange (during the Applicant’s cross examination) detailed the nature of the conduct:
“I put it to you that on 17 May, indeed, you have been active on LinkedIn, if it's not to update your work profile, you deactivated the Celotti Workforce LinkedIn page?---Yes, apologies for that.
Which would have required you - - - ?---I inadvertently - - -
- - - you logged into your own LinkedIn profile, and I put it to you that, not only have you failed to take the steps that would be expected of someone with your significant, recruitment background to mitigate your losses, but you've also attempted to cause harm to the respondent through your actions in deactivating their LinkedIn account?---Okay. So yes, I did manage to deactivate their account. What I was attempting to do was to remove my link to them. And in - because I had administrative over the account, which I wasn't aware of, when I attempted to deactivate myself, I deactivated the entire account. Which they were instantly notified about and reactivated.
Ms Claydon, I put it to you that as an experienced recruiter, you would know very well, as I do, and I'm not an experienced recruiter, that when you update your current position, it automatically who your current employer is?---I don't claim to be - - -
There was no need for you - - - ?--- - - - any expert on LinkedIn and/or Seek, for that matter.
Ms Claydon, I put it to you that you had to go on to Celotti Workforce's page, the company page, not your profile, the company page, and there is a second button to click to deactivate, "Are you sure you want to deactivate", and you deactivated, and if - - - ?---I thought I was deactivating myself, I was not aware that I was deactivating them.
- - - it was an error - can I please finish my - I'm not finished, Ms Claydon. And then after you successfully deactivated the company's account, I see it very clearly, can you see there? "If you can change your mind, you can easily reactivate your page by clicking here". If you did make an error, why didn't you reactivate the page?---You might note that this has been sent through to Michelle, at Celotti, not me, so I wasn't advised that I'd deactivated the Celotti Workforce account. All I was endeavouring - - -“ 60
[279] The Applicant’s conduct in this matter has been substantiated, and is not commensurate with the level of trust and confidence required to support a finding of re-employment or reinstatement. A range of employment relationships were affected; with other employees, but most importantly management. The Respondent submitted that they do not consider reinstatement appropriate, as they consider the employment relationship to be irrevocably damaged, and unmanageable in the Darwin office.
[280] In terms of an assessment against the criteria set out in Nguyen, I was able to observe the Applicant and the other witnesses in providing this evidence. On the evidence, a sufficient level of trust and confidence cannot be restored between the parties for management to be confident, that the employment relationship (in Darwin) can be viable and productive. This assessment is made in consideration of the ‘rationality’ of the attitude adopted by the Applicant, specifically, the nature of the conduct that has been substantiated, the lack of response, the hostile language used to the employer and the matters of the Applicant’s dismissive conduct to younger employees at the separate workplace. The reasons for the dismissal could be accurately summarised as representing an aggregate of conduct that undermined the workplace relationship and the authority of management and eroded the Respondent’s trust and confidence in the Applicant’s ability to independently perform her role. For these reasons, reinstatement is not considered an appropriate remedy in the circumstances. It is therefore necessary to consider whether an order for payment of compensation is appropriate in all the circumstances.
Compensation
[281] Having determined that the dismissal was unfair, given the procedural deficiencies as set out, and that reinstatement is not appropriate in the circumstances, it is necessary to assess, whether an amount of compensation should be awarded. Section 392(2) of the Act sets out a number of matters which must be taken into account in the assessment of compensation, in respect of an unfair dismissal remedy application. The approach to the calculation of compensation has been set out in the decision of Sprigg v Paul’s Licensed Festival Supermarket (Spriggs). 61 The Spriggs formula has subsequently been endorsed in a number of Full Bench Decisions of the Commission.62
s.392(2)(a) – the effect of the order on the viability of the employer’s enterprise
[282] Directions were provided, including the provision of s.392. No specific submissions or evidence were provided regarding the likely effect that an order for compensation would have on the viability of the employer’s enterprise. However, noting that the Respondent employed over 130 employees at the time of the Applicant’s dismissal, (and given no direct submission to the contrary) it is unlikely that an order for compensation, is likely to negatively impact the viability of the employer’s enterprise. This criterion is considered neutral on this basis.
s.392(2)(b) – the length of the person’s service with the employer
[283] The Applicant was employed by the Respondent for a period exceeding two and half years. This period of employment is not insignificant and favours an award of compensation in excess of 1 weeks’ pay. 63 It is also noted that the Applicant was not paid wages in lieu of notice.
s.392(2)(c) – the renumeration that the person would have received, or would have been likely to receive, if the person had not been dismissed
[284] It has been established that the Applicant’s conduct constituted a valid reason for dismissal, but was not deemed to be ‘serious misconduct’. Neither party addressed with clear reasons, the anticipated length of the continuation of the employment relationship. However, given the nature of the conduct and the complaints and evidence of other employees, it is considered that her employment would not have continued with the Respondent for a further lengthy period. It has been set out that the Respondent’s procedure in implementing the dismissal had deficiencies, and further it has been found that the Applicant’s conduct did not meet the test for serious misconduct. However, in the circumstances, it is considered that the Applicant’s employment would have come to an end at the employer’s initiative, albeit, after an appropriate disciplinary process had been undertaken. It was submitted on behalf of the Applicant that to provide a procedurally fair process would require a further two weeks and the provision of wages in lieu of notice.
[285] As set out in Hanson Construction Materials Pty Ltd v Pericich, 64 it is necessary in these circumstances, to make an assessment as to the duration of a procedurally fair process.65 Had the Respondent engaged in an appropriate termination process, it is likely that the Applicant would have remained employed for a period of approximately 5 weeks. It is considered that an appropriate procedure, including allowing for a period of stand down of the Applicant’s employment, an investigation, a response period to the conduct, a further meeting and consideration, and the implementation of the dismissal would have taken approximately 5 weeks to complete.66
s.392(2)(d) – the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and s.392(2)(e) the amount of any renumeration earned by the person from employment of other work during the period between the dismissal and the making of the order for compensation
[286] The Applicant stated that she had not been successful in obtaining employment following her dismissal, and that she had not received any other income during this period. The Applicant had maintained that she had been actively applying for other positions since her dismissal and that she had participated in, an online interview for one position.
[287] In accordance with the case of Hilbrick v Marshall Lethlean Industries Pty Ltd, 67 it is also recognised that the Applicant had argued that she was unable to mitigate her loss, for the period of time following the dismissal, due to her incapacity as a result of her ill health.
[288] The Applicant argued that her ability to obtain alternative work had also been adversely affected by the chronic health conditions from which she suffers. Specifically, the Applicant stated that she suffers from atrial fibrillation that has been exacerbated by the stress associated with losing her job. The Applicant asserted that this condition causes her to suffer from a racing heart, pain across her chest, and shortness of breath.
[289] Between 22-24 February 2021, the Applicant stated that she was hospitalized with an acute colon and bowel disorder, which was also linked to increased stress. Following the Applicant’s discharge from hospital, she stated that she has continued to slowly recover, however, she argued that her ability to look for other work in the immediate aftermath of her hospitalization was limited.
[290] The Applicant’s representative referred to evidence of a medical certificate for a short period in February.
[291] In addition to her health issues (set out further below), the Applicant stated that her attempts to locate alternative employment had been unsuccessful, largely due to the relatively small job market that exists in Darwin. This was a point of contention at the hearing, with the Respondent providing evidence that the Applicant, despite being an experienced recruiter, had not updated her LinkedIn or Seek profiles to reflect that she was no longer employed by the Respondent, or that she was seeking employment at that time. The following exchange occurred between the Applicant and the Respondent’s representative regarding the status of her online recruitment profiles:
“MS MOLTONI: It must be quite frustrating with such an experienced background to not be able to find work for such a prolonged period. Would that be an accurate comment?---Absolutely.
I imagine that in that time you have taken every step to make yourself as attractive to prospective employers as possible?---Of course.
I put it to you, Ros, that you have not taken every step to make yourself as attractive to prospective employers as possible. If I can bring to your attention a document that has been sent through marked H2?---Yes, thank you. So this document has been listed off Seek. I have - - -
I will ask the questions, thank you, Ros. I tender your CV on Seek which is as of 6 May and as of 6 May it was not updated to even reflect your time at Celotti. I put it to you, Ms Claydon, that in failing to do so you have failed to act to mitigate your loss. This is at 6 May and this CV on Seek - where you admit that you look when you're filling roles - is not up to date?---And as I said to you - - -
I haven't asked you any other question. There is no other question for you to answer. I also put it to you that you have not updated your profile on Seek to indicate that you may be approachable by other employers, is that correct?---I have not updated my details on Seek, no, but I have been sending an updated resume through to - - -
It was just a yes or no answer?--- - - - positions I have been applying for.
That was just a yes or no answer. Thank you, Ros. I put it to you that this is not just isolated to Seek. I put it to you that as of 6 May you had also not updated your LinkedIn to indicate that you were no longer employed by Celotti Workforce or looking for work?---Correct, because that's not the platform I am utilising to seek employment.
But, Ros, you have given - - -?---I'm utilising Seek to respond directly to advertisements - - -
Ros, I'll ask the questions. Thank you. Ros, you just told me that as an experienced recruiter when you fill jobs you search Seek and LinkedIn?---I also told you if I was searching Seek and LinkedIn and people were not responding directly to an advertisement, I would not expect their details to be up to date because they would be unaware that I was lifting their details without their knowledge necessarily from either of those platforms.
…
MS MOLTONI: H4. It's a copy of Ms Claydon's LinkedIn profile as at 6 May, some three months after her termination and it still hasn't been updated.
THE WITNESS: That's not relevant.
MS MOLTONI: Well, I'll leave that for the Commission to decide - - -?---What am I supposed to put, "Shafted and looking?" 68
[292] It is considered that someone with the Applicant’s experience in recruitment would understand the benefit in a job search of having an up-to-date online professional profile. The Applicant’s evidence was not credible in terms of her reasoning for failing to update her online resume or profiles on both Seek and LinkedIn. This inactivity is not comparable with someone who has the direct experience in recruitment that would enable them to fully appreciate the benefit in maintaining a current online profile, when undertaking to actively apply for positions. The Applicant had not demonstrated efforts to mitigate her loss and had not earned renumeration from other work during the period.
s.392(2)(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
[293] The Applicant submitted that she had not earned any renumeration from employment or other work since her dismissal, and it was unlikely there would be further earnings in the period. It is note considered that there would be any income in this period.
s.392(2)(g) – any other matter that the FWC considers relevant
[294] The Applicant’s workplace was based in Darwin, with the management and owner based in the Brisbane office. The Respondent had no other offices in Darwin, or senior supervisory employees located there. The Applicant should have been aware that her conduct was improper in undermining management and disturbing other staff in their duties.
[295] The Applicant’s submissions regarding her relationship with other employees has been taken into account, for example, that the Applicant drove one of the employees to work with her in the company car, and she also stated that she endeavoured to familiarise an employee with the indigenous community by driving her through their residential area. However, the employee said that the manner of this viewing of where people lived, made her uncomfortable.
[296] The consideration of compensation has also taken into account that the Applicant did not provide her ‘show cause’ response by the extended date, as required by the employer. She had been on notice to provide this after an extension was given.
[297] The quantum of compensation has further taken into account the Applicant’s personal circumstances, as set out in this decision. It is noted that the dismissal has had an adverse impact on the Applicant. 69 It is considered that the dismissal was harsh because of the procedural deficiencies. The extended period of employment to allow for a correct process has been set out.
s.392(3) – Misconduct reduces amount
[298] Section 392(3) of the Act requires that if the Commission is satisfied that the misconduct of a person contributed to the employer’s decision to dismiss the person, then the Commission must reduce the amount it would otherwise order by an appropriate amount on account of the misconduct.
[299] It has been set out in this matter that the Applicant’s conduct warranted her dismissal. The Applicant’s conduct directly contributed to the Respondent’s decision to terminate her employment, and that but for her working in the Darwin office, it would have been apparent to the employer earlier. Therefore, this factor supports a reduction in the compensation that would otherwise be awarded to the Applicant. Accordingly, 1 week has been deducted from the compensation. 70
Order of compensation
[300] In undertaking an assessment as to the appropriate compensation, it is noted that:
“[39] The strict application of the approach set out in Sprigg v Paul’s Licensed Festival Supermarket (Sprigg), and endorsed in subsequent decisions, would yield an order that Mr Pericich be paid compensation of 1 weeks’ pay. Sprigg is a useful servant, but is not to be applied in a rigid determinative manner. In deciding the amount of a compensation order the Act directs that the Commission ‘must take into account all of the circumstances of the case’ including the particular matters set out at s.392(2)(a) to (g). 71
[301] Taking into account all of the circumstances, in the above criteria, there was a valid reason for dismissal based on the Applicant’s conduct, but the reasons for dismissal did not meet the statutory test for serious misconduct, (the Applicant was not paid any wages in lieu of notice) and that this also contributed to the harshness of the matter. The process as set out in Hansen, 72 has been adopted and it is determined that the Respondent is ordered to pay the Applicant the amount of 4 weeks compensation (5 weeks wages, less one week, as a result of the Applicant’s conduct).
[302] Such an order will have no effect on the viability of the employer’s enterprise in accordance with s.392(2)(a). The amount ordered does not include any component by way of compensation for shock, distress or humiliation or another analogous hurt, cause to the Applicant by the manner of her dismissal, in accordance with s.392(4).
[303] The Respondent is therefore ordered to pay to the Applicant, 4 weeks wages, in the amount of $6,153.84, less applicable tax. The payment is required to be made within 14 days of this decision.
CONCLUSION
[304] The representative of the Applicant referred to the case of IGA Distribution (Vic) Pty Ltd v Nguyen, 73 which set out that the assessment as to whether there is a valid reason for the termination of employment takes into account the consideration of the context of the alleged conduct and the gravity of the conduct itself. Based on the evidence, the conduct occurred and are demonstrative of non-compliance, insubordination and deliberate agitation of colleagues in the context of a senior employee working remotely, away from managements supervision. The further context is provided by the Applicant’s open judgement of the managers to junior staff and her actions in undermining their authority, in addition to the criticism of their business on grounds of potential fraud and non-adherence to appropriate employment guidelines. This was occurring in a somewhat covert context at a workplace removed from management’s ability to monitor her actions.74
[305] This decision is made in circumstances where the Applicant’s performance and conduct at the workplace constituted a valid reason for dismissal, however the Respondent’s process in effecting the dismissal had procedural deficiencies. It is recognised that the handling of the matter was undertaken from Brisbane, in circumstances where the Applicant was based in Darwin. Further, the process was not fully discharged, given the absence of the Applicant’s response to the show cause letter. Having considered the Applicant’s full response and evidence in this application, the Respondent’s decision would not have been altered. No additional material overturned the finding of the nature of the allegations. The evidence of the other employees confirmed their concerns, and a number were clearly agitated and upset in providing their evidence; even in circumstances where they no longer worked with the Applicant. The Respondent could not be confident in returning the Applicant to work at the workplace in Darwin.
[306] Given the circumstances leading to the dismissal, and the evidence provided by the Respondent’s witnesses, specifically regarding the Applicant’s conduct towards other employees and the demonstrated objection to her direct superiors, as well as the post dismissal conduct, reinstatement is not appropriate in the circumstances. On the evidence, the Applicant has engaged in a pattern of behaviour in the workplace that does not allow for reinstatement. The trust and confidence between the parties has been irreparably severed.
[307] In accordance with section 392(2), in summary terms there is no evidence as to the effect of an order on the viability of the employer’s enterprise. The employee had more than 2 and a half years service. It was unlikely the employment relationship would have, in the circumstances, lasted for more than 5 weeks during which time a procedurally fair process would have been afforded. There is no other evidence of particular efforts made by the Applicant to mitigate the loss suffered since the dismissal. No remuneration had been earned after the dismissal and in accordance with section 392(2)(f), the submissions were that no income was reasonably likely to be earned in the relevant period. A deduction for contingencies in relation to this amount of one week has been made, taking into account her conduct based on the evidence.
[308] In all of the circumstances of this case, for the reasons set out, it is appropriate to make an order for four (4) weeks wages in compensation, as set out above.
[309] An Order [PR735684] has been issued separately.
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
<PR735685>
1 The submissions of the Applicant concede the Applicant had a medical condition on 28 and 29 January 2021.
2 Paragraph [8] Applicant’s final submissions.
3 Ibid at [10].
4 Ibid at [26] – [27].
5 Ibid at [35].
6 Witness statement of Mr Weygood, Annexure ‘NW-1’.
7 Witness statement of Mr Weygood, Annexure ‘NW-2’.
8 PN 59 of the transcript.
9 PN 60-65, 68 and 70 of the transcript.
10 PN 73 of the transcript.
11 PN 74 of the transcript.
12 PN 80 and 90 of the transcript.
13 PN 145 of the transcript.
14 PN 155, 157 and 162 of the transcript.
15 PN 81-84 and 88-89 of the transcript.
16 PN 109, 111 and 112 of the transcript.
17 Rule 1.07(2)(b).
18 PN 113 of the transcript.
19 Ibid.
20 Rule 1.07(3)(c).
21 PN [387] of the transcript.
22 Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333 (7 July 1995), [(1995) 62 IR 371 at p. 373].
23 Ibid.
24 Rode v Burwood Mitsubishi Print R4471 (AIRCFB, Ross VP, Polites SDP, Foggo C, 11 May 1999) at [19].
25 (1938) 60 CLR 336.
26 Ibid.
27 King v Freshmore (Vic) Pty Ltd Print S4213 (17 March 2000) at [24].
28 [2011] FWAFB 4070.
29 [1998] FCA 865.
30 Paragraph 160 – 162 of the transcript.
31 Paragraph 203 of the transcript.
32 Paragraph 218 to 223 of the transcript.
33 Paragraph 235 to 238 of the transcript.
34 Paragraph 233 of the transcript.
35 Paragraph 1195 to 1196 of the transcript.
36 Paragraphs 1085 to 1091 of the transcript.
37 Paragraph 106 to 114 of the transcript.
38 Paragraph 121 to 128 of the transcript.
39 Potter v WorkCover Corporation PR948009 at [55].
40 Briginshaw v Briginshaw (1938) 60 CLR 336.
41 Qantas Airways Limited v Paul Carter [2012] FWAFB 5776.
42 [2012] FWA 4789.
43 [2018] FWCFB 1829.
44 Print N9636, AIRC.
45 Fair Work Regulations 2007.
46 [2013] FWC 3507.
47 [2012] FWA 7828.
48 IRCA, unreported, 20 December 1996, Wilcox CJ, in the Industrial Relations Court of Australia.
49 Print S5897; (2000) 98 IR 137.
50 Paragraph 1545 to 1548 of the transcript.
51 [2010] FWA 883.
52 [2021] FWCFB 3457.
53 [2014] FWCFB 7198.
54 [2010] FWA 883 at [41].
55 Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter[2014] FWCFB 7198, [17].
56 Ibid at [27].
57 Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter[2014] FWCFB 7198, [27].
58 Ibid at [28].
59 [2021] FWCFB 3457.
60 Paragraphs [445] to [451] of the transcript.
61 Sprigg v Paul’s Licensed Festival Supermarket, (Munro J, Duncan DP and Jones C), (1998) 88IR 21.
62 Bowden v Ottrey Homes Cobram and District Retirement Villages inc T/A Ottrey [2013] FWCFB 431; Jetstar Airways Pty Ltd v Neeteson-Lemkes [2014] FWCFB 8683.
63 Hanson Construction Materials Pty Ltd v Pericich[2018] FWCFB 5960 at [36].
64 Hanson Construction Materials Pty Ltd v Pericich[2018] FWCFB 5960 at [26].
65 Parker v Garry Crick’s (Nambour) Pty Ltd the Trustee for Crick Unit Trust T/A Crick’s Volkswagon [2016] FWCFB 3683.
66 Hanson Construction Materials Pty Ltd v Pericich[2018] FWCFB 5960 at [34].
67 [2010] FWA 7704.
68 Paragraphs 350 to 366 of the transcript.
69 Hanson Construction Materials Pty Ltd v Pericich[2018] FWCFB 5960 at [37].
70 Ibid at [40].
71 Hanson Construction Materials Pty Ltd v Pericich[2018] FWCFB 5960 at [39].
72 Ibid.
73 [2011]FWAFB 4070.
74 Qantas Airways Limited v Cornwell [1998] FCA 865.
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