Ms Susan Wright v Essendon Realty P/L T/A Raine & Horne
[2017] FWC 1993
•7 APRIL 2017
| [2017] FWC 1993 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Susan Wright
v
Essendon Realty P/L T/A Raine & Horne
(U2016/13980)
COMMISSIONER HARPER-GREENWELL | MELBOURNE, 7 APRIL 2017 |
Application for relief from unfair dismissal.
[1] On 22 November 2016, Ms Susan Wright made an application to the Fair Work Commission (Commission) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy in respect of her dismissal by Essendon Realty Pty Ltd T/A Raine & Horne (Essendon Realty).
[2] Ms Wright was dismissed from her employment on 12 November 2016 at the initiative of the employer. The dismissal took effect immediately. Ms Wright submits her dismissal was unfair.
Background and case outline
[3] Ms Wright commenced employment with Essendon Realty on 16 May 2015 as a casual employee. Ms Wright worked as a receptionist on Saturdays from 9am to 1pm.
[4] Approximately 3 months prior to her dismissal Ms Wright had informed Essendon Realty that she was in the process of obtaining a divorce and had taken out an intervention order against one of Essendon Realty’s contractors (the Contractor) owned by her brother–in-law.
[5] On 12 November 2016 Mr Garro, Director of Essendon Realty dismissed Ms Wright at the end of her shift with immediate effect on the grounds of misconduct for allegedly viewing the Contractor’s archived emails and invoices.
[6] Essendon Realty submits that the property manager at the time of the dismissal, Ms Stephanie Sergi, and the full time receptionist, Ms Michelle Good, had warned the applicant not to view these documents. Ms Isac, Co-Director of Essendon Realty submits Ms Wright was given an initial warning during the conversation in which Ms Wright notified her of the intervention order.
[7] Ms Wright submits she had not been issued with any warnings, written or verbal, in relation to her behaviour and that reviewing incoming emails was part of her role.
Procedural Background
[8] The matter did not initially proceed to conciliation as Essendon Realty declined to participate. Directions were issued and the matter was listed for Hearing in Melbourne on 13 February 2017.
[9] Ms Wright filed submission and witness statements on 6 January 2017 in accordance with the directions. Essendon Realty filed their submissions and the witness statement of Ms Stephanie Sergi on 30 January 2017 in accordance with directions.
[10] By agreement between the parties a conciliation was conducted on 13 February 2017, however the matter was not resolved. The matter proceeded to arbitration on that same day.
Representation
[11] This matter had previously been listed for a mention /directions hearing on 1 February 2017. Ms Wright was represented by her sister, Ms van de Griendt, and Essendon Realty was represented by Mr Iskandar.
[12] Ms van de Griendt did not object to Mr Iskandar representing Essendon Realty at the mention/directions however made submissions that she was intending to object to representation at the hearing. Mr Iskandar was granted permission to represent Essendon Realty for the mention/directions hearing and the parties were advised if they wished to be represented at the hearing they would need to make submissions addressing s.596 of the Act.
[13] On 7 February 2017 Ms van de Griendt made written submissions objecting to Essendon Realty being represented by a lawyer. My Associate corresponded with Ms van de Griendt, with copy to Ms Isac and Mr Iskandar, advising to date there has been no submission received from Essendon Realty pursuant to s.596 of the Act and should Essendon Realty make a submission the Commissioner would then hear any objection raised by the Applicant.
[14] On 8 February 2017 Mr Iskandar contacted my Associate to make inquiries about making written submission in relation to representation. Mr Iskandar was again directed to s.596 of the Act.
[15] Mr Iskandar sent an email to my Chambers at 4:47pm on Friday 8 February 2017 advising that neither the respondent nor her witness was available for the hearing due to business commitments. Mr Iskandar wrote in his correspondence that his client (Essendon Realty) would be available by telephone if necessary.
[16] On 9 February 2017 my Associate wrote to Mr Iskandar stating the following in reply;
“During the mention and/or directions hearing on 2 February 2017 the Commissioner advised you of the requirements of section 596 of the Fair Work Act 2009 and invited you to make submissions either written in advance or verbally on the day of the hearing. To date no submissions have been received, therefore the Commissioner has not considered granting permission. Permission is not automatic and may not necessarily by granted.”
[17] Mr Iskandar was also advised should I not grant permission for representation, and in the absence of any representative for Essendon Realty, I may consider along with any objections what weight should be attributed to any of their submissions and witness statements.
[18] At 4:18pm on 10 February 2017 Mr Iskandar emailed my chambers outlining his submission pursuant to section 596 of the Act. Mr Iskandar did not provide a copy of his submission to Ms Wright.
[19] Ms Wright was provided with a copy of this correspondence at 5:04pm on 10 February 2017.
[20] Section 596 of the Act provides as follows:
“596 Representation by lawyers and paid agents
(1) Except as provided by subsection (3) or the procedural rules, a person may be represented in a matter before the FWC (including by making an application or submission to the FWC on behalf of the person) by a lawyer or paid agent only with the permission of the FWC.
(2) The FWC may grant permission for a person to be represented by a lawyer or paid agent in a matter before the FWC only if:
(a) it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or
(b) it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or
(c) it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.
Note: Circumstances in which the FWC might grant permission for a person to be represented by a lawyer or paid agent include the following:
(a) where a person is from a non English speaking background or has difficulty reading or writing;
(b) where a small business is a party to a matter and has no specialist human resources staff while the other party is represented by an officer or employee of an industrial association or another person with experience in workplace relations advocacy.
(3) The FWC’s permission is not required for a person to be represented by a lawyer or paid agent in making a written submission under Part 2 3 or 2 6 (which deal with modern awards and minimum wages).
(4) For the purposes of this section, a person is taken not to be represented by a lawyer or paid agent if the lawyer or paid agent:
(a) is an employee or officer of the person; or
(b) is an employee or officer of:
(i) an organisation; or
(ii) an association of employers that is not registered under the Registered Organisations Act; or
(iii) a peak council; or
(iv) a bargaining representative;
that is representing the person; or
(c) is a bargaining representative.”
[21] At the commencement of the hearing Mr Iskandar made submissions pursuant to s.596. Ms van de Griendt objected to Essendon Realty being legally represented. I considered the submissions of the parties and refused permission for Essendon Realty to be legally represented. I was not persuaded that representation by a lawyer would enable the matter to be dealt with more efficiently given the matter was not overly complex and there were few facts in dispute. This application did not involve any complex factual matters and the legal principles are well settled and not complex.
[22] Ms van de Griendt, who is neither a paid agent nor a lawyer, represented her sister Ms Wright. Ms Wright gave evidence on her own behalf. Essendon Realty was represented by its Co-Director Ms Mary Isac. Ms Isac also gave evidence on behalf of Essendon Realty.
Preliminary matters
[23] Section 396 of the FW Act requires that four specified matters must be decided before the merits of Ms Wright’s application may be considered. There was no contest between the parties about any of those matters. I find that:
(a) Ms Wright’s application was made within the period required by s.394(2);
(b) Ms Wright was a person protected from unfair dismissal;
(c) Essendon Realty was a “small business employer” as defined in s.23 of the Act, the Small Business Fair Dismissal Code (the Code) was applicable; and
(d) the dismissal was not a case of genuine redundancy.
[24] There was no contest between the parties that Ms Wright worked on a regular and systematic basis working every Saturday and some additional week days when required. Ms Wright had a reasonable expectation of continuing employment by the employer.
[25] Ms Wright meets the requirements for protection from unfair dismissal set out in sections 382, 383 and 384 of the Act.
[26] The issues for determination are whether the Commission is satisfied that the dismissal was harsh, unjust or unreasonable and whether the dismissal was consistent with the Code.
The cases presented
Submission of Ms Wright
[27] Ms Wright’s submits she is a mother of three young children and worked for Essendon Realty as a receptionist on Saturday mornings. Ms Wright was going through what she referred to as a bitter divorce and had taken out intervention orders against her ex-husband and his brother (the Contractor) for domestic violence.
[28] Ms Wright submits she advised Ms Isac of the intervention orders and Ms Isac had responded stating something to the effect that as long as it didn’t interfere with Ms Wright’s work and she remained professional she did not foresee any problems. 1
[29] Ms Wright submits that one of her tasks as receptionist was to complete filing of both printed and electronic email correspondence from the Contractor of which the content was neither confidential nor sensitive.
[30] Four weeks prior to her dismissal the task of hard copy filing was removed from Ms Wright’s duties. Ms Wright submits at no time was she told by Ms Isac that she was not to deal with emails from the Contractor.
[31] Ms Wright also makes the submission that at no time during her employment was she advised by Mr Garro or any other staff member not to look at or deal with any correspondence in relation to the Contractor, nor did she receive any warnings for doing so.
[32] During the last few months of Ms Wright’s employment Ms Stephanie Sergi commenced as the Property Manager on Saturdays and spent most of her time out of the office conducting open for inspections. Ms Wright’s submission is at no time did she engage in discussions about the Contractor with Ms Sergi.
[33] Ms Sergi resigned from her employment shortly after Ms Wright was dismissed.
[34] Ms Good was the full-time receptionist working Monday to Friday at the time of Ms Wright’s dismissal. Ms Wright submits at no time during her employment had she ever engaged in conversations with Ms Good with regards to email correspondence or filing of documents of the Contractor.
[35] Ms Wright submits she worked largely unsupervised on Saturday mornings and should she have wanted to look at any matters that were private and confidential it would not make sense for her to do this on the rare occasion that other staff were present in the office.
[36] Ms Wright met with Mr Edward Garro on 12 November 2016. During the meeting Mr Garro informed Ms Wright due to her reading emails of the Contractor they needed to “part ways”. 2 Mr Garro then offered to provide Ms Wright with a written letter of recommendation. Ms Wright submits, given Essendon Realty claim to have dismissed her for a serious breach of trust, to be offered a letter of recommendation seemed contradictory and inappropriate.
Submission of Essendon Realty
[37] Essendon Realty submits that approximately three months prior to her dismissal, Ms Wright brought to the attention of Ms Isac the relationship between the Contractor and Ms Wright and that she had taken out an intervention order against her brother-in-law. When this came to the attention of Ms Isac she informed Ms Wright as long as the matter did not interfere with her work there would be no issue. Ms Wright was asked to remain professional and not mix her personal circumstances with work. 3
[38] Essendon Realty submits due to the applicants misfiling of information she was removed from any filing duties some 3 months prior to her dismissal.
[39] Essendon Realty submits on or around 7 November 2016, Ms Sergi and Ms Good reported to Ms Isac that they had on numerous occasions seen Ms Wright searching the archived files of the Contractor. Essendon Realty further submits that Ms Sergi had advised Ms Wright on numerous occasions it was not her place to access the archived files of the Contractor.
[40] Essendon Realty’s submission is Ms Wright was provided with a warning in the initial conversation when Ms Wright informed Ms Isac that she had been granted an interim order against the Contractor. Essentially it is submitted that the setting of Essendon Realty’s performance expectations of Ms Wright by Ms Isac should be accepted by the Commission to be synonymous with a warning.
[41] The submission of Essendon Realty is that on 12 November 2016, Mr Garro dismissed Ms Wright for misconduct as this was a case of a serious breach of privacy and she had been told on a number of occasions she was not to view the Contractors invoices or correspondence.
[42] Essendon Realty’s submission was “despite being warned on numerous occasions over approximately 3 months, the Applicant continued to disregard the warnings and continued to “snoop” through files”. As such the employer was left with no other choice but to dismiss the Applicant”.
[43] Essendon Realty also made the following submission;
“We dismissed the applicant as she breached our trust and confidentiality; it was not her place to be searching those files. Her issues and intentions of searching these files go beyond the work place, and we were not sure what she was using the information for.” (emphasis added)
[44] Ms Wright earnings for her Saturday shift with Essendon Realty came to approximately $100 per week. Essendon Realty’s submission is the dismissal was not harsh as the applicant only worked 4 hours a week and it was in their opinion very unlikely that a person would be reliant on the income of 4 hours ($100) per week to survive.
[45] Ms Isac’s submission to the Commission was at the time of Ms Wright’s dismissal she didn’t understand the difference between a casual and a regular systematic casual and thought she could instantly dismiss Ms Wright without notice.
[46]
The Evidence
Dismissal
[47] There is no contention between the parties about the events of the dismissal meeting that took place on the 12 November 2016. Ms Wright was called to a meeting attended by Mr Edward Garro at which time she was informed she was being dismissed with immediate effect for reading emails from the Contractor. It is not in contention that Mr Garro then proceeded to offer Ms Wright a favourable reference which she declined.
Warnings for reviewing of Archived files
[48] It was Ms Isac’s evidence that Ms Good had set up folders with names such as ‘Maintenance’, ‘Invoices’ and ‘the Contractor’ underneath the inbox in which emails were first received. Each of the folders underneath the inbox was referred to as the “archived files” containing emails that had been removed from the inbox once they had been “actioned”.
[49] It was Ms Wright’s evidence that archived emails are emails that have previously been “read and dealt with” and then subsequently removed from the inbox and placed in the adjoining files (the archived files).
[50] It is an agreed fact between the parties that reference to the subfolders in the reception email inbox is a reference to the ‘archived files’.
[51] Ms Isac’s oral evidence was that Ms Wright’s responsibilities were to answer the phone, monitor the reception desk and forward emails. Ms Wright was not required to do anything with the ‘archived files’.
[52] Ms Wright’s evidence was on Saturdays during her shift she would receive emails and file them or respond accordingly. She would also file emails that were in the filing basket including those of the Contractor. Ms Wright disputes that she had at any time been provided with instructions by any company member on how she should treat emails she received from the Contractor.
[53] The oral submission of Ms Isac was although Ms Wright had access to the files she had no need to go into the archived files of the Contractor. Ms Isac says she found it hard to believe that emails would come in from the Contractor after 5:00pm on a Friday because their office would be closed. Ms Isac was asked by Ms Wright if she had evidence to support her view and was unable to provide any at the time.
[54] Ms Isac’s oral evidence was on the Monday approximately 3 weeks prior to Ms Wright’s dismissal Ms Good and Ms Sergi had informed her that Ms Wright had been going through the archived emails.
[55] Ms Isac says as she herself “was not good at technology” she asked Ms Good to show her evidence that this was happening and Ms Good couldn’t because she had already fixed the files up.
[56] Later in cross examination Ms Isac provided a different version of the meeting with Ms Good, stating that it was during that meeting she had been informed by Ms Good and Ms Sergi that “it was still happening” being that Ms Wright was looking at the archived files.
[57] Ms Isac’s oral evidence at first was that whilst she was discussing the matter with Ms Good, Ms Sergi walked in and informed her she had also seen Ms Wright going through the archived files. In cross examination Ms Isac stated it was the following Tuesday that Ms Sergi had informed her of Ms Wright accessing the archived files.
[58] Ms Isac then provided another version of the events stating her conversation with Ms Sergi occurred on the following Monday, and she only ever had conversations with Ms Sergi about Ms Wright accessing the files on Mondays. Ms Isac’s oral evidence on when the conversation with Ms Sergi took place and the details of the conversation with Ms Good varied and was at times inconsistent, though this may simply have been a matter of recall.
[59] Ms Isac says she relied on the word of Ms Good that Ms Wright was viewing archived emails sent by the Contractor as she had no reason to disbelieve her. Ms Isac asked Ms Good to inform Ms Wright that she should not be looking at the Contractors emails and to let her know if it happened again. Ms Good resigned from her role the following week and did not present as a witness in this matter.
[60] Ms Isac says she also had no reason to disbelieve Ms Sergi’s version of events and she instructed Ms Sergi to inform Ms Wright that she should not look at the Contractors archived emails.
[61] Ms Isac gave evidence that she had not confirmed with either Ms Good or Ms Sergi that they had informed Ms Wright not to look at emails of the Contractor as instructed. Further, at no time prior to the dismissal meeting did either Mr Garro or Ms Isac raise their concerns directly with Ms Wright.
[62] Ms Isac sought to rely on the witness statement of Ms Sergi who did not appear to give evidence in these proceedings. There was a fair amount of contention between the parties relating to Ms Sergi’s witness statement and the circumstances under which it was written.
[63] Ms Wright’s evidence was Ms Isac had pressured Ms Sergi to write the witness statement and for this reason Ms Sergi had resigned from her employment. Ms Wright submitted text messages she advised were from Ms Sergi which she contended were evidence that she had been forced by Ms Isac to lie in a statement.
[64] Ms Isac argued that the text messages provided as evidence did not identify who they were from and, as she didn’t have Ms Sergi’s number, she couldn’t be sure who had sent them.
[65] In the absence of the witness to give evidence and given the contentions between the parties I cannot be certain of the validity of either the text messages or the statement. I therefor consider them to be of little evidentiary value in this matter and give them no weight in making my decision.
[66] Ms Isac’s evidence was that she had become very concerned by the information provided by Ms Sergi and Ms Good and, upon speaking with Mr Garro, they decided they had no choice but to dismiss Ms Wright. Ms Isac’s oral evidence was they were concerned “because of the Privacy Act and you know, how will we be implicated between herself and her ex-brother in law should it go further?”
[67] Ms Isac went on to state she had become concerned for the business as real estate agents are governed by the Privacy Act and they were unsure as to what action the Contractor would take if, for whatever reason, it got out that Ms Wright was looking at their emails.
[68] Ms Isac stated she considered the actions of Ms Wright to be misconduct and therefore they had reason to dismiss Ms Wright immediately.
Consideration
Small Business Code
[69] Ms Wright was dismissed without notice. The only provision in the small business code which is relevant in this matter is “summary dismissal”. Under this section I must be satisfied that Essendon Realty believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. The dismissal does not come within the examples of serious misconduct given in the code as there is no suggestion of theft, fraud, violence or serious breaches of occupational health and safety.
[70] In these circumstances I must consider whether or not the employer had other reasonable grounds to believe that there was serious misconduct. If I am satisfied that there were reasonable grounds to believe that there was serious misconduct then the Small Business Code has been complied with.
[71] The Fair Work Regulations 2009 (the Regulations) define serious misconduct for the purposes of the Act as follows:
“1.07 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;
(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.
(5) For paragraph (3)(b), an employee is taken to be intoxicated if the employee's faculties are, by reason of the employee being under the influence of intoxicating liquor or a drug (except a drug administered by, or taken in accordance with the directions of, a person lawfully authorised to administer the drug), so impaired that the employee is unfit to be entrusted with the employee's duties or with any duty that the employee may be called upon to perform.”
[72] Ms Isac’s submission to the Commission was that the conduct of Ms Wright, in looking at emails of the Contractor, posed a risk to Essendon Realty in that she had breached the Privacy Act. Ms Isac did not provide any specifics as to which section of the Privacy Act had in fact been breached.
[73] Further, it was Ms Isac’s evidence that she wasn’t certain if the Privacy Act had been breached by Ms Wright and she was unable to determine what, if any, would be the consequences for Essendon Realty.
[74] For reasons outlined below in my decision, I am not satisfied the conduct of Ms Wright falls within Section (2)(a) or (b) or Section 3(a),(b) or (c) of the Regulations.
Was the dismissal consistent with the Small Business Fair Dismissal Code?
[75] Essendon Realty summarily dismissed Ms Wright for reasons of misconduct. At the outset the Commission does not have to make a finding, on the evidence, whether the conduct as alleged by Essendon Realty occurred 4, that is whether or not Ms Wright was accessing the archived files of the Contractor for personal reasons. It is not necessary for the Commission to determine whether Essendon Realty was correct in the belief that it held.5 It is necessary for the Commission to make findings as to whether Essendon Realty had a reasonable belief that the conduct of Ms Wright was serious enough to warrant immediate dismissal.6
[76] The question to be considered in this case is whether Essendon Realty believed on reasonable grounds that Ms Wright’s conduct was serious enough to justify immediate dismissal. As such, the determination is to be based on the knowledge available to Essendon Realty at the time of the dismissal. This involves an assessment by the Commission of the reasonableness of the steps taken by Essendon Realty to gather relevant information on which the decision to dismiss was based.
[77] The evidence establishes that Essendon Realty had no direct evidence that Ms Wright was accessing archived emails of the Contractor. There was no direct evidence that Ms Wright had obtained any information or was intending on using the Contractors information for any purpose that would breach the Privacy Act.
[78] Ms Isac at no time took it upon herself to investigate the allegations she says were put to her by Ms Good and Ms Sergi. It was Ms Isac’s own evidence that Ms Good was unable to provide her with evidence to support her allegations against Ms Wright.
[79] There is no evidence before me which remotely suggests that Ms Wright had conducted herself in any manner which would fall within the definition of serious misconduct. Furthermore there is nothing in the evidence which suggests that Ms Isac and/or Mr Garro had reasonable grounds to believe that there was serious misconduct.
[80] At the very most Ms Isac and Mr Garro had a suspicion, one they did nothing to either affirm or allay. Ms Isac’s evidence establishes she was concerned that if for whatever reason down the track “it got out” that Ms Wright had access to the Contractors emails, Essendon Realty may have to face allegations relating to their own responsibilities under the Privacy Act and not those of Ms Wright’s.
[81]
[82] However, Ms Isac could not identify what the implications of any such allegations would be for Essendon Realty, or if there would be any at all.
[83] To hold a belief on reasonable grounds it is necessary to have a discussion with the employee about the perceived serious misconduct and pay regard to the explanations and views given by the employee. Neither Mr Garro nor Ms Isac held any such discussions with Ms Wright prior to her dismissal. There was no discussion held with Ms Wright about the perceived serious misconduct, nor the implications any such conduct would have on her future employment with Essendon Realty.
[84] In my view, Essendon Realty has not been able to establish by way of evidence that they had reasonable grounds to hold the belief that there was serious misconduct. I am therefore not satisfied that Essendon Realty reasonably formed the belief that Ms Wright engaged in conduct that justified immediate dismissal on reasonable grounds.
[85] Having determined that the actions of Ms Wright did not constitute serious misconduct and that Essendon Realty did not have reasonable grounds to believe that it did, it follows that the termination of Ms Wright’s employment was inconsistent with the Small Business Fair Dismissal Code.
[86] Having determined that the dismissal was not consistent with the Code I will now consider if the termination was harsh, unjust and unreasonable.
Harsh, Unjust Unreasonable
[87] Section 387 of the Act sets out the criteria for considering whether a dismissal was harsh, unjust or unreasonable:
“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.”
[88] The type of conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained by the High Court of Australia in Byrne v Australian Airlines Ltd.7 McHugh and Gummow JJ explained as follows:
“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”8
[89] I will now consider each of the matters set out in s.387 of the Act.
Was there a Valid Reason for the dismissal- s.387(a)
[90] The reasons given for the termination were that Ms Wright had been viewing archived files of the Contractor after being warned on various occasions not to do so. By viewing the files Ms Wright had placed Essendon Realty at risk of breaching the Privacy Act.
[91] Essendon Realty’s submits Ms Wright was warned in the initial conversation when she informed Ms Isac that she had been granted an interim order against the Contractor. Essentially it was submitted that Ms Isac’s response at the time should be accepted by the Commission to be synonymous with a warning.
[92] I am unclear as to Essendon Realty’s reasoning and unsure as to why an employer would be issuing a warning for conduct that had not yet occurred. It is clear from the evidence and the submissions Ms Wright had at this stage not conducted herself in a manner warranting a warning.
[93] Essendon Realty submits Ms Wright was warned about her conduct over a period of three months and warned on numerous occasions not to look at archived emails of the Contractor. Ms Isac’s evidence was she had told two other staff members to tell Ms Wright not to view the Contractors archived files. In her oral evidence Ms Isac’s version of these events was inconsistent.
[94] Ms Wright did not report to either of those staff members. There is no evidence before me that those discussions took place.
[95] I am not satisfied that Ms Wright received instructions from any person at Essendon Realty relating to the handling of emails from the Contractor nor was she instructed by any manager to not access the archived emails.
[96] Ms Isac’s evidence was at no time had she put to Ms Wright that she had concerns about her accessing archived files of the Contractor. Ms Isac also gave evidence that other than being told this by two staff members she herself had not seen any evidence of Ms Wright viewing archived emails of the Contractor.
[97] It was not in contention that Ms Wright had access to the reception email and would receive and respond to emails during her Saturday morning shift.
[98] Ms Wright’s evidence was that on occasion she would receive emails from the Contractor and would respond when necessary. She submitted that the emails were in relation to jobs being performed on houses for Essendon Realty and there was nothing sensitive in their nature.
[99] Ms Isac’s oral evidence was she was unsure what Ms Wright would use the information in the emails for and she was not entirely sure if it was a breach of privacy as she hadn’t yet sought advice on this.
[100] I am not satisfied that there is any evidence before me that Ms Wright was provided with any warnings about accessing the archived files or that such conduct may result in her being dismissed from her employment.
[101] Further, as I found earlier, I am not satisfied that Ms Isac could be sure Ms Wright was in fact accessing the files for reasons that would warrant dismissal.
[102] Ms Wright only worked on Saturdays and consequently her earnings were $100 per week. Essendon Realty submit the dismissal was not harsh because it is “very unlikely that a person relies on the income of 4 hours a week to survive” 9 and therefore the dismissal was not harsh and it couldn’t have had an impact on Ms Wrights life.
[103] Ms Wright’s oral evidence was as a single mum of three young children who was struggling to get access to child support, the additional $100 per week could mean the difference between feeding and not feeding her children, buying a full tank of petrol or taking the children to sports or a party.
[104] In 2014 The Australian Council of Social Service (ACOSS) analysed figures from a report of the Australian Bureau of Statistics from 2012. 10 The report revealed more than 40 per cent of all people on social security benefits fell below the national poverty line.11 The report also revealed that poverty is concentrated among the groups of people facing disadvantage and major barriers. This includes people who are locked out of the job markets and single parents.12 It is somewhat naïve of Essendon Realty to suggest that it is very unlikely that a person relies on the income of $100 per week to survive.
[105] I do not consider Essendon Realty’s argument that Ms Wright’s dismissal was not harsh to be a well thought out and valid argument. There was no valid reason for the termination of Ms Wright.
Notification of the Valid Reason –s.387(b) and an Opportunity to Respond –s.387(c)
[106] Ms Wright was notified of the reason for her dismissal at the meeting in which she was dismissed after the decision to dismiss her had been made by Mr Garro and Ms Isac. Ms Wright was not provided with any prior notification nor was she provided with an opportunity to respond. I am not satisfied that Ms Wright was treated fairly in the process.
Unreasonable Refusal of a Support Person – s.387(d)
[107] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal.13 With respect to this consideration, the Explanatory Memorandum states:
“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.14
[108] Ms Wright was unaware she was attending a meeting in which she was going to be dismissed. She had no opportunity to request a support person even if she had wanted to do so.
Warnings regarding Unsatisfactory Performance – s.387(e)
[109] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, if the dismissal related to unsatisfactory performance by the person, the Commission must take into account whether the person had been warned about that unsatisfactory performance before the dismissal.15 Unsatisfactory performance is more likely to relate to the employee’s capacity to do the job, than their conduct.16 The Commission must take into account whether there was a period of time between an employee being warned about unsatisfactory performance, and a subsequent dismissal. This period of time gives the employee the opportunity to understand their employment is at risk and to try and improve their performance.17
[110] This was not a case of unsatisfactory performance.
Impact of the Size of the Respondent on Procedures Followed and Absence of dedicated human resources management specialist/expertise on procedures followed – s.387(f)-(g)
[111] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal.18 Further, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account 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.19
[112] Essendon Realty is a small business. Neither Mr Garro nor Ms Isac consulted with anyone outside of the business to obtain advice prior to the dismissal. Ms Isac’s submission to the Commission was she was not aware that Ms Wright was a regular systematic casual and thought she could just dismiss her without notice. The lack of human resource management specialist skills and knowledge contributed to the problem with procedure in this matter.
Other Relevant Matters – s.387(h)
[113] There are no other matters to be considered.
Finding
[114] As the Directors of a small business, Mr Garro and Ms Isac’s lack of expertise in human resources is not sufficient to outweigh the lack of a valid reason in this matter. I have considered this together with the other matters dealt with in s.387 of the Act, and in all the circumstances I am satisfied that the dismissal was unfair in that it was harsh, unjust or unreasonable.
Remedy
[115] Ms Wright does not seek reinstatement and Essendon Realty strongly opposes it. In all of the circumstances I do not consider reinstatement would be appropriate or practical. In this matter the relationship of trust is not able to be restored and there were obvious hostilities between the parties. I find an order for compensation is appropriate.
[116] Ms Wright was not paid the 1 week notice to which she was entitled under the National Employment Standards.
[117] Ms Wright has been unable to obtain employment since she was dismissed. Ms Wright has made attempts to find part-time work and has been unable to do so. Ms Wright submits she is currently on Centrelink payments, which total approximately $1300 per fortnight, and her ex-husband has refused to pay child support.
[118] There is no evidence that any order I make will affect the viability of Essendon Realty.
[119] Ms Wright’s length of service with Essendon Realty totalled 1 year and 6 months. I consider this to be a reasonable length of service given the turnover of staff at Essendon Realty. There is no basis for reducing any award of compensation.
[120] Ms Isac gave evidence that they had no other issues with the applicant other than her ability to accurately maintain the hard copy filing which was a task that was removed from her duties. Ms Wright’s circumstances suggest she would have been likely to have remained in her role for at least another year. Ms Wright’s hourly rate was $29.63 per hour. Ms Wright’s earnings during that period would approximate $6163.04
[121] In all of the circumstances I am satisfied that Ms Wright has undertaken reasonable efforts to mitigate her losses due to the termination.
[122] I do not consider that there has been any misconduct which would require me to reduce the amount of any compensation.
[123] I do not include any component by way of compensation for shock, distress or humiliation caused by the manner of the dismissal.
[124] Ms Wright has not earned any income since the time of her dismissal therefore I make no deductions for amounts earned.
[125] I consider the amount of compensation should be reduced by 10% to allow for contingencies or errors and uncertainty in the estimates of future employment and earnings.
[126] There are no other relevant factors to consider.
[127] The resultant compensation of $5546.74 exceeds the 26 weeks limit on compensation. Taking these factors into consideration and the principle of a fair go all around I order a payment of 26 weeks compensation of $2273.00 plus 9.5% superannuation, less appropriate taxation as required by law. This amount is inclusive of the notice to which Ms Wright would have been entitled.
[128] I take into account that Essendon Realty is not likely to have budgeted for an order of compensation in these circumstances. I therefore deem it appropriate that the compensation be paid in two equal monthly instalments starting from fourteen days from the date of this decision and consequential order 20. Essendon Realty is at liberty to apply for a variation to this time period.
COMMISSIONER
Appearances:
S. van de Griendt for the Applicant
M. Isac for the Respondent
Hearing details:
2017
Melbourne
13 February
1 Exhibit A1, para 6
2 Exhibit A1, para 9
3 Exhibit R1, para 4
4 Steri-Flow Filtration (Aust) Pty Ltd v Erskine[2013] FWAFB 1943
5 Pinawin v Domingo (2012) 219 IR 128 [29]
6 Ibid
7 (1995) 185 CLR 410.
8 Ibid at 465.
9 Exhibit R1, para 13
10 Australian Council of Social Service, Poverty in Australia 2014 (14 October 2014), < Ibid, p. 8
12 Ibid, p. 5
13 Fair Work Act 2009 (Cth) s.387(d).
14 Explanatory Memorandum, Fair Work Bill 2009 (Cth) [1542].
15 Fair Work Act (Cth) s.387(e).
16 Annetta v Ansett Australia Ltd (2000) 98 IR 233, 237.
17 Johnston v Woodpile Investments Pty Ltd T/A Hog’s Breath Café – Mindarie[2012] FWA 2 [58].
18 Fair Work Act (Cth) s.387(f).
19 Fair Work Act (Cth) s.387(g).
20 PR591709
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