Ms Tania Nielson v Cadle Park Pty Ltd

[2009] FWA 1737

[2009] FWA 1737

FAIR WORK AUSTRALIA

DECISION

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

Ms Tania Nielson
v
Cadle Park Pty Ltd
(U2009/11696)

COMMISSIONER FOGGO MELBOURNE, 17 DECEMBER 2009

Termination of employment.

[1] This is an application for unfair dismissal remedy made by Ms Tania Nielson (the Applicant) pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of her employment with Cadle Park Pty Ltd (the Respondent). The Respondent trades as James Street Dental Centre.

[2] The matter did not settle at conciliation and was listed for arbitration. The Notice of Listing issued on 18 September 2009 provided Directions to the Applicant and the Respondent to provide written outlines and witness statements to the Tribunal and to each other. Both parties lodged submissions and the arbitration proceeded on 9 December 2009.

[3] The Applicant commenced employment with the Respondent on 7 February 2005. The notification of her dismissal was advised and took effect on 18 August 2009. The Application was lodged with Fair Work Australia (FWA) on 1 September 2009. There are no issues regarding lodgement of the application.

[4] In the Form F3 Employer’s Response to the Application, Dr Puckett, a Director of the James Street Dental Centre, objected to the Application on the basis that it was a small business with less than 15 employees and further, that the Applicant’s employment was terminated in accordance with the “notice period set out under the Fair Work Act and the Small Business Fair Dismissal Code.” 1

[5] The new legislation of the Act states what constitutes an unfair dismissal. The provision are:

“385 What is an unfair dismissal

A person has been unfairly dismissed if FWA is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

[6] The Small Business Fair Dismissal Code (the provisions are referred to in the Act accordingly):

“388 The Small Business Fair Dismissal Code

(1) The Minister may, by legislative instrument, declare a Small Business Fair Dismissal Code.

(2) A person’s dismissal was consistent with the Small Business Fair Dismissal Code if:

(a) immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person’s employer was a small business employer; and

(b) the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal.”

[7] The Small Business Fair Dismissal Code, available through Fair Work Online, is explained as follows:

“Small Business Dismissal Code

Commencement

The Small Business Fair Dismissal Code comes into operation on 1 July 2009.

Application

The Fair Dismissal Code applies to small business employers with fewer than 15 full-time equivalent employees.

Small business employees cannot make a claim for unfair dismissal in the first 12 months following their engagement. If an employee is dismissed after this period and the employer has followed the Code then the dismissal will be deemed to be fair.

Employees who have been dismissed because of a business downturn or their position is no longer needed cannot bring a claim for unfair dismissal. However, the redundancy needs to be genuine. Re-filling the position with a new employee is not a genuine redundancy.

The Code

Summary Dismissal

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

Other Dismissal

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

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

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

Procedural Matters

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

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

[8] The checklist referred to above is not required by FWA or mandatory for employers but rather a guide regarding matters to be taken into account when small businesses do dismiss an employee. However, in this case, the Respondent has lodged the checklist completed where relevant to the issues associated with Ms Nielson’s dismissal.

[9] At the hearing on 9 December 2009, Ms Nielson gave brief oral submissions to supplement her written statement 2. In summary she stated that she had been unfairly blamed because a small but relatively expensive piece of dental equipment went missing. It was part of the Applicant’s duties as the Sterilisation Nurse to carry out a count, usually at the commencement and end of each day, to ensure that all equipment was accounted for. She was not solely responsible for the count but usually completed it.

[10] If the count was short another employee carried out another count so that attempts could be made to find pieces of equipment which had previously been caught up with discarded paper towels and found in the bins and were capable of being retrieved before being removed from the premises. A chart placed on the wall provided the number of each type of equipment and the number of pieces for a ready reference at the end of each count.

[11] If a piece of equipment was missing it was to be reported immediately to Ms Goksoyr who was the practice manager. An incentive scheme was in place to overcome loss of equipment and if no equipment went missing over a six month period the entire staff would be taken on a surprise day trip. In the past such events had included a day spa in Daylesford and go kart racing in Melbourne.

[12] Ms Goksoyr stated that on 10 August 2009 she had been told in confidence by Ms Hickey, another employee, that the laminated hand piece count chart had been amended to show there should be 10 not 11 prophy heads (each prophy head is a small piece of dental equipment and estimated to be approximately $700 in value).

[13] Ms Hickey stated she had later asked the Applicant about the change in number and was allegedly told not to worry about it. The Applicant allegedly stated that she and Emma (another employee) had changed the chart number because one of the prophy heads had been lost but it was some time prior. Ms Hickey’s evidence was that she asked if Ms Goksoyr had been told but that the Applicant responded no because she did not want to miss out on the six monthly mid year activity which was shortly to occur.

[14] Ms Hickey alleged that:

“she said to the Applicant that she had better be careful because someone will notice. She said that the Applicant responded “No they won’t because I have changed the inventory on the computer too. If anyone finds out, I’ll know who it came from.” 3

[15] Ms Nielson denied this exchange had occurred, denied that she had changed the wall chart and denied that she had in any way been responsible for the missing prophy head and provided a Statutory Declaration to that effect. 4 She stated that she did not know how to use the computer.5

[16] Ms Hickey stated that everyone at the centre used computers and she had observed the Applicant using a computer. 6 There is no evidence to the contrary that the centre generates its operations through computer technology and I accept the evidence of Ms Hickey that a range of primary tasks from dental charting to patient profiles and records are computer generated. In this context it appears likely that the Applicant would have had the skills to amend the chart. That is not though the same as making a finding that she did.

[17] Once Ms Goksoyr became aware of the changed chart and the missing prophy piece an investigation ensued. Dr Puckett gave evidence outlining the investigative process. A meeting with all staff occurred to see if any of the staff had knowledge of what had occurred. 7

[18] He stated that Dr Thrift, Ms Goksoyr and he did not necessarily believe that the Applicant had lost the prophy head but the information regarding the covering up of the incident was of great concern to the centre. Three of the employees including Ms Nielson were re-interviewed.

[19] At the second interview the two Doctors and the Practice Manager were concerned that the Applicant had attempted to cover up the missing piece of equipment. They concluded that even if she had not changed the chart she knew that she should have had 11 prophy heads and she did not raise with anyone that one was missing. It was the Applicant’s evidence that she did not refer to the wall chart as she knew the number of different pieces of equipment ‘off by heart’.

[20] The Respondent had concerns regarding the Applicant’s response to the questions asked of her and agreed that termination of her employment would occur unless she had a ‘plausible reason or explanation’ for her conduct.

[21] At the subsequent meeting with Ms Nielson she confirmed she did not look at the chart but could not answer why she had not reported the change in the number of prophy heads. She stated that she would take the blame because it was her responsibility but continued to state that she had not been responsible for the loss or the change to the chart. Dr Thrift then formally terminated the Applicant’s employment and Ms Goksoyr reiterated that she had the responsibility to advise when expensive pieces of equipment went missing and she had failed to do so.

[22] Ms Nielson was paid her entitlements and three weeks in lieu of notice.

[23] The above is a summary of the context in which the Applicant’s dismissal occurred. She also stated that the employer could not rely on the Small Business Dismissal Code because it had more than 15 employees. The Code is applicable to small businesses with less than, or ‘under’ as the checklist states, 15 full-time equivalent employees. The evidence of the practice manager was that there are 10.5 full-time equivalent employees are employed by the business. I accept the accuracy of this figure.

[24] It was confirmed, and it is not in question, that Ms Nielson had been employed in the business for more than 12 months.

[25] The Respondent stated that it had dismissed the employee on reasonable grounds and stated those grounds to be because “the employee defrauded the business” 8 and because “the employee committed a serious breach of occupational health and safety procedures.”9 In the first instance the actions of the Applicant in covering up the loss of an expensive piece of equipment was deemed to constitute fraud. The grounds regarding the serious breach of health and safety procedures were not expanded on.

[26] There was also reference to the ground that “the employee threatened me or other employees, or clients, with violence, or actually carried out violence in the workplace” and a note that this had occurred “in the past”. 10Dr Puckett’s evidence did touch on this issue but was insufficiently developed to accept that this was a reasonably held ground for the dismissal of the Applicant. The threats made by the Applicant’s husband following the termination of employment were unacceptable but not attributed to the Applicant.

Conclusion

[27] On the basis of the material before the Tribunal and the submissions of the parties I find that the dismissal of Ms Nielson’s employment was consistent with the Small Business Fair Dismissal Code.

[28] The Respondent is a business of less than 15 full-time equivalent employees and therefore is covered by the operations of the Code.

[29] On the basis of the information available to the employer the employer had reasonable grounds to believe that the Applicant had committed misconduct.

[30] The Applicant was presented on several occasions with the details of the employer’s concern and was unable to provide adequate reasons regarding the loss of equipment and the cover up of the loss. The Respondent’s decision to terminate was reasonable on the basis of the investigation and the Applicant’s responses.

[31] The dismissal of Ms Nielson from the Respondent’s employ was consistent with the Small Business Fair Dismissal Code pursuant to s.388 of the Act and she is therefore unable to bring a claim for unfair dismissal. An order will issue to give effect to this decision.

COMMISSIONER

Appearances:

T Nielson on her own behalf.

M Follett of counsel for Cadle Park Pty Ltd.

Hearing details:

2009.

Melbourne:

December, 9.

 1   Form F3, received 10 September 2009.

 2   Exhibit Applicant 2.

 3   Exhibit Respondent 2 paragraph 28.

 4   Exhibit Applicant 1.

 5   Transcript PN87 – 89 and 293.

 6   Transcript PN252 – 270.

 7   Exhibit respondent 3 and Transcript PN202 – 222.

 8   Small Business fair Dismissal Code Checklist attached to Form F3.

 9   Ibid.

 10   Ibid.

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