Ms Valerie Misoyannis v Leisures Shoe Boutique
[2019] FWC 8612
•20 DECEMBER 2019
| [2019] FWC 8612 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Ms Valerie Misoyannis
v
Leisures Shoe Boutique
(U2019/6609)
DEPUTY PRESIDENT BOOTH | SYDNEY, 20 DECEMBER 2019 |
Application for relief from unfair dismissal remedy - application granted - no remedy granted.
[1] On 14 June 2019, Ms Valerie Misoyannis (Applicant) made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy, alleging that she had been unfairly dismissed from her employment with Leisures Shoes Boutique (Respondent). The Applicant seeks the remedy of a decision by this Commission that her dismissal was harsh, unjust or unreasonable and also seeks the equivalent of up to six months’ wages in financial compensation.
[2] For the reasons set out below I have decided that the Respondent had a valid reason for dismissing the Applicant but the way in which the dismissal was carried out was unjust. As a result, the dismissal was unfair within the meaning of s.385 of the FW Act. I have decided against an award of compensation.
When can the Commission order a remedy for unfair dismissal?
[3] Section 390 of the Act provides that the Commission may order a remedy if:
(a) the Commission is satisfied that the Applicant was protected from unfair dismissal at the time of being dismissed; and
(b) the Applicant has been unfairly dismissed.
[4] Both limbs must be satisfied. I am therefore required to consider whether the Applicant was protected from unfair dismissal at the time of being dismissed and, if I am satisfied that the Applicant was so protected, whether the Applicant has been unfairly dismissed.
When is a person protected from unfair dismissal?
[5] Section 382 of the Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:
(a) a person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the employment;
(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.
When has a person been unfairly dismissed?
[6] Section 385 of the FW Act provides that a person has been unfairly dismissed if the Commission 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.
Background
[7] The uncontested factual background to the matter is as follows:
• The Applicant commenced employment with the Respondent on or about 23 December 2017.
• The Applicant’s employment was subject to the General Retail Industry Award 2010.
• The Applicant was issued with a first and final warning at a disciplinary review meeting held on 10 October 2018 for alleged inappropriate behaviour toward a colleague at a farewell dinner on 3 October 2018.
• The Applicant was dismissed on 24 May 2019 for alleged inappropriate behaviour toward a colleague, said to have occurred on the same day as the dismissal.
• The Applicant was contacted by Ms Lyndal Jirgenson via a telephone call to her at the Neutral Bay store on 24 May 2019 immediately after the incident occurred.
• The Applicant was notified of the dismissal on 24 May 2019 via a telephone call from Mr Michael Newton-Brown, CEO of the Respondent.
Procedural history
[8] A telephone conciliation was conducted between the parties on 12 August 2019 but no resolution was reached.
[9] The matter was subsequently allocated to my colleague, Deputy President Bull.
[10] There being contested facts involved, the Commission was obliged by s.397 of the Act to conduct a conference or hold a hearing. A hearing date of 16 October 2019 was set and was notified to the parties on 14 August 2019 along with Directions for the filing of submissions.
[11] A telephone mention was scheduled for 22 August 2019 and was notified to the parties in the same correspondence of 14 August 2019. At the time of the telephone mention, the Applicant was contacted by Deputy President Bull’s Chambers as she had not dialled in. The Applicant informed the Commission that she had not checked her emails since prior to 14 August 2019 and therefore had not yet seen the correspondence of that date. The Applicant indicated she did not wish to proceed with the telephone mention. It did not proceed.
[12] The hearing of 16 October 2019 had been scheduled to commence at 10am. However, the Applicant was not present. The Commission contacted the applicant who agreed to attend the Commission for a 2pm commencement. She attributed the delay in her attendance to the stress of the proceedings. 1
[13] Due to the late start, the hearing of this matter was not concluded at the hearing of 16 October 2019. A further hearing date of 3 December 2019 was set. Due to the subsequent unavailability of Deputy President Bull, the matter was allocated to me to conduct the second day of hearing and to determine the merits of the application.
[14] Prior to the conduct of the second hearing date of 3 December 2019, a telephone mention was held before me on 18 November 2019.
Hearings
[15] The Respondent sought permission to be represented by a lawyer in these proceedings before the Commission.
[16] Relevantly, s.596(1) of the Act provides that a party may be represented in a matter before the Commission by a lawyer or paid agent in a matter before the Commission 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.
[17] The consideration of whether to grant permission is a two-step process under s.596 of the Act. 2 Firstly, it must be determined if one of the requirements in s.596(2) have been met. Secondly, if the requirement has been met, it is a discretionary decision as to whether permission is granted.
[18] On the question of representation, the Respondent submitted that: 3
• it does not employ staff with HR experience; and
• whilst not technically a small business for the purposes of the Act, the Respondent employs only 19 people; and
• the matter has some complexity about it.
[19] The Applicant did not oppose the Respondent’s being represented, but expressed that she considered the fact that the Respondent sought to be represented at hearing by a more senior legal representative than the person she had been corresponding with prior to the hearing date as ‘something like sandbagging at the last minute’. 4
[20] Having regard to the submissions filed on behalf of the Respondent and on the consideration of the voluminous evidence filed by the Applicant, Deputy President Bull granted permission under s.596(2)(a) for the Respondent to be represented at the hearing of 16 October 2019.
[21] At the telephone mention of 18 November 2019 I indicated that I intended to continue the permission granted by Deputy President Bull for the Respondent to be legally represented. I confirmed this intention at the hearing of 3 December 2019. I noted for the record that my own consideration of the requirements of s.596 of the Act led me to determine that my discretion to grant permission for the Respondent to be legally represented was enlivened by s.576(2)(a). This was because it would enable the matter to be dealt with more efficiently taking into account its complexity. I noted that I had decided to exercise my discretion in favour of the application. 5
[22] Accordingly, the Respondent was represented by Mr N Tindley of Fisher Cartwright and Berriman.
[23] The Applicant was self-represented.
Evidence
[24] The Applicant gave evidence on her own behalf.
[25] Ms Courtney Whale, Operations Manager, gave evidence on behalf of the Respondent at the hearing of 16 October 2019.
[26] Ms Lyndal Jirgenson, Buyer and Mr Michael Newton-Brown, CEO, gave evidence on behalf of the Respondent at the hearing of 3 December 2019.
Submissions
[27] The Applicant filed submissions in the Commission on 13 September 2019.
[28] The Respondent filed submissions and witness statements on 4 October 2019.
[29] On 10 October 2019, the Applicant filed an amendment to her submissions of 13 September 2019, responses to the witness statements filed by the Respondent and various other pieces of evidentiary material such as photographs and copies of email correspondence.
Has the Applicant been dismissed?
[30] A threshold issue to determine is whether the Applicant has been dismissed from her employment.
[31] Section 386(1) of the FW Act provides that the Applicant has been dismissed if:
(a) the Applicant’s employment with the Respondent has been terminated on the Respondent’s initiative; or
(b) the Applicant has resigned from their employment but was forced to do so because of conduct, or a course of conduct, engaged in by the Respondent.
[32] Section 386(2) of the FW Act sets out circumstances where an employee has not been dismissed, none of which are presently relevant.
[33] There was no dispute and I find that the Applicant’s employment with the Respondent terminated at the initiative of the Respondent.
[34] I am therefore satisfied that the Applicant has been dismissed within the meaning of s.385 of the FW Act.
Initial matters
[35] Under section 396 of the FW Act, the Commission is obliged to decide the following matters before considering the merits of the application:
(a) whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;
(d) whether the dismissal was a case of genuine redundancy.
Was the application made within the period required?
[36] Section 394(2) requires that an application be made within 21 days after the dismissal took effect.
[37] It is not disputed that the Applicant was dismissed from her employment on 24 May 2019 and made the application on 14 June 2019. I am therefore satisfied that the application was made within the period required in s.394(2).
Was the Applicant protected from unfair dismissal at the time of dismissal?
[38] I have set out at paragraph [4] above when a person is protected from unfair dismissal.
Minimum employment period
[39] It was not in dispute that the Applicant was an employee who commenced employment with the Respondent on or about 23 December 2017 and was dismissed on 24 May 2019, a period in excess of six months.
[40] I am therefore satisfied that, at the time of dismissal, the Applicant was an employee who had completed a period of employment with the Respondent of at least the minimum employment period.
Modern award coverage
[41] It was not in dispute and I find that, at the time of dismissal, the Applicant was covered by an award, being the General Retail Industry Award 2010.
[42] I am therefore satisfied that, at the time of dismissal, the Applicant was a person protected from unfair dismissal.
Was the dismissal consistent with the Small Business fair Dismissal Code?
[43] It was not in dispute that the respondent was not a small business and I am satisfied that the Small Business Fair Dismissal Code does not apply. 6
Was the dismissal a case of genuine redundancy?
[44] It was not in dispute that the dismissal was not due to the Respondent no longer requiring the Applicant’s job to be done by anyone. I am satisfied that the dismissal was not a case of genuine redundancy. 7
[45] Having considered each of the initial matters, I am required to consider the merits of the Applicant’s application.
Was the dismissal harsh, unjust or unreasonable?
[46] Section 387 of the FW Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission 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.
[47] I am required to consider each of these criteria to the extent they are relevant to the factual circumstances before me. 8 My considerations are set out below.
Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct?
[48] Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and that it justified termination.9 These considerations must be determined by the Commission on the basis of the evidence in the proceedings before it. 10
[49] In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded” 11 and should not be “capricious, fanciful, spiteful or prejudiced.”12 However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.13
Submissions
[50] The Respondent submits that “the Applicant engaged in a course of conduct throughout her employment that was inconsistent with the continuation of her employment and created a risk to the health and safety of others”. 14 It submits that the following matters are “substantial behavioural issues which established a valid reason” for the termination of the Applicant’s employment:15
(a) [the Applicant] spoke aggressively and inappropriately to Anne White during a work event on 3 October 2018;
(b) [the Applicant] consistently made disparaging and negative comments about past and present staff;
(c) [the Applicant] repeatedly and openly criticised and undermined the performance, attitude and ability of other staff to numerous staff of Leisures over email and in person; and
(d) [the Applicant] spoke aggressively and inappropriately yelled at Courtney Whale on 24 May 2019, causing significant distress to her.
[51] In response to point (a) above (3 October 2018 incident), the Applicant submits that her conduct at the dinner of 3 October 2018 could not constitute a valid reason for dismissal.
[52] The Applicant submits that due to the nature of the dinner being “completely optional and unpaid”, 16 the fact that “all the tables were cleared”17 and “over 2/3 of the attendees had left”18 at the time of the incident, it was “not a work event”.19
[53] In relation to the points (b) and (c) above (disparagement and criticism of colleagues), the Applicant submits that her conduct in these aspects did not constitute a valid reason for dismissal because “for every general statement that [she] behaved inappropriately, [she has] many cases of other people in the organization behaving the same or worse. Especially the senior people”, 20 and “[she had] provided many examples of Leisures staff who have written & spoken far worse than anything presented by the respondent.”21
[54] The Applicant does not accept that the allegations outlined in point (d) above occurred. (24 May 2019 incident). She submits that it was Ms Whale who raised her voice at or shouted at the Applicant during the incident in question, and not the other way around. The Applicant therefore does not accept that the incident between herself and Courtney Whale constitutes a valid reason for her dismissal.
Evidence in relation to the 24 May 2019 incident (incident triggering termination)
[55] The Applicant explained her reason for attending the Respondent’s Neutral Bay store on 24 May 2019, despite the fact that she had not been rostered to work nor asked to attend, 22 as follows:
“I popped in to help out with the induction of the newbie that was there, and I had brought guidelines that might help her, in the form of bullet points, that were specific to the Neutral Bay store that were not taught to her in the rest of her training, until she works for Neutral Bay or works in Neutral Bay. So I thought that I could be of help.” 23
[56] The Applicant went on to say that she also anticipated a visit to the store by a customer who sought resolution of a complaint of faulty product. 24
[57] Whatever the reason for the Applicant being at the Neutral Bay store that morning, it is not in dispute that whilst she was there an incident occurred between the Applicant and Ms Whale.
[58] The evidence of the Applicant as compared to that of Ms Whale in relation to the incident of 24 May 2019 does not differ greatly in terms of the words spoken or the actions taken by each party. The most significant inconsistency in the evidence of the two witnesses lies in who was the aggressor in the incident.
[59] Ms Whale’s account of the incident is that the Applicant was the aggressor. Ms Whale says she was meeting a “fairly new employee who was starting her first shift at Neutral Bay” in order to help her open up the store before 9am. 25 Ms Whale had emailed the Applicant on the morning of the previous day.26 The email included a request for the Applicant to leave the keys to the store in an identified hiding place.27
[60] Upon her arrival at the Neutral Bay store at 8:30am on 24 May 2019, Ms Whale realised the key was not in the hiding place. 28 She called the Applicant’s landline and the call was answered by the Applicant’s mother who informed Ms Whale that the Applicant had gone to work. Ms Whale says that this confused her as she was aware the Applicant was not rostered to work, and Ms Whale had not requested or notified her to attend.29 Ms Whale made further phone calls and arrangements were made for another colleague to bring a key to the store.30
[61] The new staff member suggested to Ms Whale that they get a coffee whilst waiting for the key to be delivered so the pair walked around the corner. There Ms Whale noticed the Applicant who she said appeared to be in a rush. 31 Ms Whale said she spoke to the Applicant, without raising her voice, to say “you didn’t leave a key out”. 32 The Applicant responded “that’s not my problem” in a rude tone.33 Ms Whale then said, “I sent you an email about leaving a key out so I could get into the store today.” 34 The Applicant said she had not seen the email and Ms Whale confirmed that she had sent such an email. 35 The Applicant said, “what email” to which Ms Whale responded that she would show her the email. Ms Whale says the Applicant was then screaming “what email, I didn’t see an email”. 36
[62] Ms Whale describes that the Applicant got quite close to her during this conversation and was acting and speaking in an aggressive manner, with her hands moving quite fast up towards Ms Whale’s face, saying “I don’t know what you are talking about, I didn’t get an email”. 37 Ms Whale was in her early stages of pregnancy and felt at the time that the Applicant may hit her. 38 She said she felt scared, and tried to defuse the situation to say “can you please not yell at me in the street”. 39
[63] After moving inside the store, Ms Whale left the Applicant and the new employee together moving away to call Ms Jirgenson. 40 She told Ms Jirgenson that the Applicant yelled at her on the street, does not take responsibility for anything and attacks people, which Ms Whale said she did not understand.41 Ms Whale was crying whilst on the phone.42 Ms Jirgenson queried whether Ms Whale wanted to ‘handle’ the Applicant, to which Ms Whale replied that she would appreciate if Ms Jirgenson did so as she was not comfortable.43
[64] Ms Whale went back into the store. The phone rang and was answered by the Applicant. Ms Whale was aware that Ms Jirgenson was the person who had called. The Applicant moved out the back of the store to take the call. After the call the Applicant “stood around [Ms Whale] for a minute without saying anything”. 44 Ms Whale says the Applicant then said words to the effect that she wanted to apologise for how she spoke to [her].45 Ms Whale told the Applicant that she appreciated her apology, that it was “inappropriate … and that she had made [her] feel uncomfortable and attacked”. 46
[65] The Applicant’s account of the incident is that she met with Ms Whale and the new staff member on the street outside the Neutral Bay store just before 9am on the morning of 24 May 2019. 47 She “motioned [Ms Whale and the new employee] to come into the store”48 while they were approaching her from the opposite direction.49 She assumed that Ms Whale had the requisite keys to the store.50 The Applicant says that Ms Whale then asked about the keys in a “stern & stiff” tone,51 and proceeded to scream at her about whether she had received an email in relation to them.52 She says Ms Whale “started about the email and it just went on and on and on”.53 The Applicant said that Ms Whale was behind her, screaming at her back,54 and puts the distance between them at approximately 15 metres.55
[66] The Applicant denied raising her voice at or acting aggressively toward Ms Whale and said that instead, it was Ms Whale who raised her voice at, or was screaming at, the Applicant in relation to the key and the email that had been sent about it. 56
[67] When the suggestion was put to Ms Whale, during the hearing of 16 October 2019, that she had been the aggressor in the 24 May 2019 incident, Ms Whale’s response was:
“No, I don’t believe that I would have raised my voice. I believe I did ask her, repeatedly the question of, “Did you see my email, I sent you an email?”, about the key that needed to be left out, so I could access the store that morning.” 57
[68] In both her written and oral evidence, the Applicant repeatedly implied as well as explicitly stated that she found it difficult to believe that Ms Whale had been scared during the incident of 24 May 2019 due to the fact that Ms Whale had not reported the incident to the police. 58 Ms Whale confirmed she did not report the incident to the police but rather did so to her ‘up line’, Ms Jirgenson and then Mr Newton-Brown.59
[69] The Applicant confirmed that she apologised verbally to Ms Whale after the incident. 60 However, she denied that she gave the apology in relation to her conduct.61 She said that she apologised in relation to the incident generally,62 in order to “smooth it over”63 and because she “did not want to see [Ms Whale] upset”.64 The Applicant said that she did not indicate at the time of the apology that she considered Ms Whale’s behavior to be inappropriate.65
Evidence in relation to the 3 October 2018 incident
[70] The Applicant agrees that during this incident she said words to Anne White to the effect of “I don’t give a fuck about the customer. I just want to sell them a pair of shoes”, 66 following which the Applicant and Anne White had an altercation.
[71] The Applicant received a first and final warning in relation to this incident.
[72] The Applicant submits that she was not afforded the opportunity to have a support person with her at the disciplinary meeting of 10 October 2018 which addressed the alleged conduct at the dinner of 3 October 2018. The Applicant acknowledged that she had been sent an email on the night of 9 October 2018 informing her of the meeting of 10 October 2018, and of her right to bring a support person to it, but maintains that this was not “effective notice” 67 as she did not have knowledge of this email nor of the meeting until she arrived at work on the morning of 10 October 2018, at which point she says it was too late to arrange for a support person.68
[73] The Applicant says that the meeting of 10 October 2018 did not afford her an opportunity to respond to the allegations relating to her alleged conduct at the dinner of 3 October 2018. She says:
“This was not an opportunity to respond. This was a session where I had to listen, note everything said & say as little as possible. Defending myself would only get Michael Newton-Brown to explode. Just like he did at the team meeting in early March 2018 where I presented a different point of view and he exploded.” 69
[74] At the meeting of 10 October 2018, Mr Newton-Brown put to the Applicant allegations about her conduct during a work event, 70 and says that she did not deny these allegations.71
[75] The Applicant accepted that she was told at the meeting of 10 October 2018 that “further disciplinary action would result in a termination”. 72
[76] Anne White resigned from the Respondent as a result of this incident on 12 October 2018. 73
Evidence in relation to disparagement and criticism of colleagues
[77] The evidence included emails from the Applicant containing the following:
• On 20 April 2019 the Applicant sent an email to the St Ives team and copied in all other locations of the Respondent’s business which stated, amongst other things, “WHO IS ISSUING THESE INSTRUCTIONS & WHY IS NB BEING TREATED LIKE A MUSHROOM WITH SAID INSTRUCTIONS?”
• Within the email sent by the Applicant on 20 April 2019 the Applicant noted that she was“shouting” and made comments in relation to the leadership of the business including writing “last time I looked, this was called leadership. This Chinese Whispers approach to management is not professional and does zilch for morale”.
• On 18 May 2019 the Applicant wrote to Mr Newton-Brown, and Courtney Whale stating words to the effect of: “I WOULD BE VERY INTERESTED TO SEE HOW ROSE HANDLES HER TRAINING NEXT WEEK”;
• On 22 May 2019 the Applicant wrote an email to Mr Newton-Brown and Ms Whale and referred to a colleague as “unmotivated” and “lazy”. 74
[78] Mr Newton-Brown’s evidence included:
• Receipt of a report that the Applicant had said to a colleague “you are a loser” and “you are a fucking moron”; 75
• Receipt of a report that the Applicant had called a colleague a “fucking idiot” and told the colleague to “get out of my store”, which left the colleague upset; 76
[79] Ms Jirgenson’s evidence included:
• On 17 June 2018 reference to customers as “wog women”; and
• On 17 and 18 March 2019 references to a colleague as a “space cadet”; and
• On 29 June 2019 reference to a colleague as a “man-child”. 77
[80] The Applicant says she was never warned of the inappropriate nature of the emails she had been sending until she commenced her unfair dismissal action, 78 except for an email that was mentioned to her in the phone call with Ms Jirgenson on 24 May 2019.79
[81] The Applicant accepted that some of her emails, including the ‘mushroom’ email, were “over the top”. 80
Findings
[82] I am satisfied on the balance of probabilities that the Applicant did behave as described by Ms Whale outside the Respondent’s Neutral Bay store on 24 May 2019. Ms Whale’s evidence was clear, she gave a contemporaneous account of it to Ms Jirgenson (attested to by Ms Jirgenson in her evidence), 81 and the conduct the Applicant was accused of was consistent with a pattern of behaviour that is in evidence in relation to the disparagement and criticism of colleagues. I consider that the conduct was aggressive and inappropriate.
[83] I find that the acknowledged behaviour by the Applicant on 3 October 2018 is not mitigated by it occurring at a non-work event as I consider that for practical purposes the dinner was a work event due to its purpose, organisation and financial arrangements. That the words were spoken towards the end of the night do not detract from this characterisation. In any event I consider that the approach the Commission has taken to out-of-hours conduct as set out in Rose v Telstra Corporation Ltd 82 is satisfied in that the conduct was incompatible with the Applicant’s duty as an employee.
[84] I am satisfied that the Applicant disparaged and criticised her colleagues. I find that the instances set out in paragraph 77-79 occurred and that they were inappropriate.
[85] I consider that the procedural fairness issues raised about the 3 October 2018 incident are not relevant to the termination since they relate to a disciplinary meeting that was not a termination meeting.
[86] Having regard to the above I consider that the Applicant’s behaviour constituted misconduct that was frequent, persistent and undermined the safety and welfare of her colleagues. Her conduct was incompatible with a harmonious workplace and her obligations to her employer and fellow employees.
[87] In the light of this, and the fact that the Applicant was the subject of a first and final warning, I find that the Respondent had a valid reason for dismissing the Applicant from her employment.
[88] This finding weighs against a finding that the dismissal was unfair.
Was the Applicant notified of the valid reason?
[89] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment, 83 and in explicit,84 plain and clear terms.85
Submissions
[90] The Respondent submitted that the Applicant was notified of the reason for her dismissal via a telephone call from Mr Jirgenson and was notified of the termination of her employment via a subsequent telephone call from Mr Newton-Brown.
[91] The Applicant did not dispute these submissions. However, she said that she either refuted the allegations made against her during the phone call with Ms Jirgenson, 86 or was “stunned by the call … and denying or agreeing with anything was not likely”87 and that she did not “admit the severity of any complaint”88 during the phone call with Mr Newton-Brown.
Evidence in relation to notification of valid reason
[92] It is not in dispute that, a short time after the 24 May 2019 incident and whilst the Applicant was still at the Neutral Bay store, she received a call from Ms Jirgenson who outlined her dissatisfaction with the Applicant’s conduct according to what had been reported to her by Ms Whale, 89 and “reprimanded [the Applicant] for the unacceptable aggressive way that she was once again talking to the other staff”.90
[93] Ms Jirgenson said that during this phone call she reminded the Applicant that she was “on her first and final warning” 91 and also notified the Applicant that she “had been shown an email the previous day that [she] had sent which was rude and unprofessional” and told her that “this ongoing behavior was not acceptable”.92 Ms Jirgenson’s evidence is that the Applicant did not deny that she had behaved aggressively towards Ms Whale,93 nor did she allege that Ms Whale had behaved aggressively towards her.94
[94] The Applicant’s evidence is that she “made it clear to [Ms Jirgenson] in this telephone conversation that [Ms Whale] was badgering [her] about the email. 4 times yelling at [the Applicant’s] back.” 95
Findings
[95] The Applicant submitted that she denied the allegations put to her by Ms Jirgenson in the phone call of 24 May 2019. She did not submit that she did not understand these allegations or that they were not explained to her in adequately clear terms. She did not refute Ms Jirgenson’s evidence that she was reminded on the phone call that she was on her first and final warning for aggressive behavior towards staff.
[96] I find that the Applicant was notified of the reason for her dismissal, being her aggressive conduct towards her colleague Ms Whale on 24 May 2019 in plain, clear and explicit terms during the telephone call with Ms Jirgenson. This finding is supported by the evidence of both parties that the Applicant apologised to Ms Whale soon after the phone call with Ms Jirgenson. 96
[97] The notification of the reason for dismissal occurred prior to the Applicant’s dismissal which was notified to her in a subsequent telephone call from Mr Newton-Brown.
[98] I am satisfied that notice of the valid reason for the Applicant’s dismissal was properly provided in accordance with s.387(b) of the Act.
Was the Applicant given an opportunity to respond to the valid reason related to her conduct?
[99] An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. Such an opportunity must be provided before a decision is taken to terminate the employee’s employment. 97
[100] The opportunity to respond does not require formality and this factor is to be applied in a common sense way to ensure the employee is treated fairly. 98 Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements.99
Submissions
[101] The Respondent submitted that “the Applicant was afforded an opportunity to respond to the allegations, which were considered in determining that her employment should be terminated on 24 May 2019”. 100 It says the Applicant did respond to those allegations during the telephone call, and made admissions in relation to her conduct.101
[102] The Applicant submitted that she was not given an opportunity to respond to the allegations notified to her in the phone call of 24 May 2019 with Ms Jirgenson. 102
Evidence
[103] Ms Jirgenson provided a document that she described as her notes of the telephone call with the Applicant on 24 May 2019. 103 Ms Jirgenson estimated that she produced the notes the following day.104 The notes explain that Ms Jirgenson told the Applicant that she had received a call from Ms Whale who was “in tears at the aggressive way [the Applicant] had spoken to her”. Ms Jirgenson said that the Applicant “did not deny it, but defended her actions”.
[104] The Applicant twice commented on the duration of the phone call with Ms Jirgenson in her written submissions, stating that “[Ms Jirgenson] and I had a very long conversation”, 105 and that the conversation “lasted quite a while”.106
[105] Despite the long duration of the call, the Applicant said of her opportunity to respond to the allegations put to her:
“When I did attempt a response, she paused me & started to re affirm what Courtney had told her. She knew whose side of the facts to take from the moment she started to speak.” 107
Findings
[106] I do not consider that the Applicant had an appropriate opportunity to respond to the allegations of inappropriate conduct by her towards Ms Whale on 24 May 2019 in Ms Jirgenson’s phone call. A telephone call whilst the Applicant was still in the physical presence of Ms Whale did not allow the Applicant to collect her thoughts and to properly respond to these allegations. Furthermore, I find that the Applicant did not have sufficient opportunity to respond to the other matters mentioned in the telephone call by Ms Jirgenson, including an unprofessional email sent by the Applicant the day prior, and general allegations of “taking complaints [about the Applicant] from staff every day and listening to [the Applicant] complain about other staff every day”. 108
[107] In all the circumstances, I find that the Applicant was not given an opportunity to respond to the reason for her dismissal prior to the decision to dismiss being made.
[108] The mere fact that the Respondent has failed to provide the Applicant with an opportunity to respond does not automatically render the dismissal harsh, unjust or unreasonable. As noted by a Full Bench in Etienne v FMG Personnel Services[2017] FWCFB 3864, “s.387(c) is not a ‘criterion’. It is not the case that a person must be provided with an opportunity to respond to any reason related to conduct or performance. Rather, s.387(c) is a consideration to which the Commission must have regard in its analysis of whether a termination is harsh, unjust or unreasonable…”. 109
[109] This factor therefore weighs in favour of a finding that the dismissal was unfair.
Did the Respondent unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal?
[110] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present.
[111] There is no positive obligation on an employer to offer an employee the opportunity to have a support person:
“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.”110
Submissions
[112] The Respondent submitted that there was no refusal to allow the Applicant to have a support person present.
[113] The Applicant submitted that she was not given the opportunity to have a support person present. She said, “There was no way I could have a support person there if I was given no notice.” 111
Evidence
[114] It is not in dispute that, whilst still at the Respondent’s Neutral Bay store on 24 May 2019 and after the call with Ms Jirgenson, the Applicant received a call from Mr Newton-Brown that resulted in her dismissal. 112 The Applicant estimates that the call lasted “about 10 seconds”113 and that parts of the conversation included advice that the Applicant’s behaviour was unacceptable,114 and a direction to hand in the Applicant’s keys [to the store].115
[115] Mr Newton-Brown says of the phone call:
“It was a very short conversation based on the conversation that [the Applicant] had had with [Ms Jirgenson] that she had been on a first and final warning and so I let her know that she was dismissed.” 116
[116] The Applicant did not have a support person present during the telephone call with Mr Newton-Brown that resulted in her dismissal. There was no suggestion in the submissions or in oral evidence that the Applicant had requested a support person.
Findings
[117] I find that whilst the Applicant did not request a support person there was no practical possibility of her having a support person. The short duration of the phone call with Mr Newton-Brown effectively negated this possibility. In all the circumstances I find that the Respondent effectively unreasonably refused to allow the Applicant to have a support person present at discussions relating to the dismissal.
[118] This factor weighs in favour of a finding that the dismissal was unfair.
To what degree would the size of the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal?
Submissions
[119] The Respondent submitted that while not a small business within the definition of the FW Act it employs only 19 employees. It submitted that this should be taken into consideration by the Commission when considering any shortcomings in the procedure followed in effecting the termination.
[120] The Applicant did not dispute the size of the employer and did not otherwise address this submission.
Evidence
[121] Aside from the evidence of the size of the employer no evidence was led concerning the impact this had on the procedural aspects of the dismissal.
Findings
[122] I find that the size of the Respondent is a neutral factor in considering determining whether the dismissal was unfair in all the circumstances.
To what degree would the absence of dedicated human resource management specialists or expertise in the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal?
Submissions
[123] The Respondent submitted that it does not employ any human resource specialists and does not have any internal human resources expertise. It submitted that this should be taken into consideration by the Commission when considering any shortcomings in the procedure followed in effecting the termination.
Evidence
[124] Aside from the evidence that it does not employ any human resource specialists and does not have any internal human resources expertise no evidence was led concerning the impact this had on the procedural aspects of the dismissal.
Findings
[125] Whilst I could infer from my own human resources experience that the lack of human resource expertise was demonstrated by the absence of procedural fairness in the conduct of the dismissal, in the absence of any specific evidence or submission to this effect I find this to be a neutral factor.
What other matters are relevant?
[126] Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant.
Submissions
[127] The Applicant submitted that the behaviour of other employees, including Mr Newtown-Brown was, in effect, a mitigating factor to her behaviour. 117
[128] While cross-examining Mr Newton- Brown the Applicant said:
“I guess what I am trying to do is, I was fired for bad behaviour, whereas that bad behaviour was happening everywhere in that firm by the senior people.” 118
[129] The Applicant submitted that she had made complaints about colleagues that had not been acted upon. 119
[130] In response the Respondent submitted that the Applicant continually attacked and criticised past and present employees and that the Commission should consider the content and tone of the Applicant’s submissions in reaching conclusions about the likelihood of the conduct she engaged in being substantiated. 120
Evidence
[131] Ms Jirgenson and Mr Newton-Brown gave evidence about occasions on which the Applicant had said or written comments that were disparaging and critical of other staff and when she had been asked to stop this behaviour. 121
[132] The Respondent refers to the Applicant’s own evidence to the Commission in the form of her statements and oral evidence to fortify this evidence. 122
Findings
[133] There is no evidence of many of the accusations the Applicant directs towards the respondent. The evidence in relation to her complaints is that the respondent addressed some of the complaints and ignored others. I find that this does not mitigate or excuse the Applicant’s behaviour.
[134] The evidence in relation to the Applicant’s behaviour is credible, some coming from the Applicant’s own evidence and her behaviour during the course of proceedings. However, it is already relied upon in relation to the valid reason for dismissal, so it is not necessary for me to consider it as ‘other matters that the Commission considers relevant.’
Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust or unreasonable?
[135] I have made findings in relation to each matter specified in section 387 as relevant.
[136] I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable. 123
[137] Having considered each of the matters specified in section 387 of the FW Act, I do not consider that the dismissal of the Applicant was harsh or unreasonable. However, I do consider that the dismissal was unjust due to the procedural fairness flaws in the way that the dismissal was carried out.
Conclusion
[138] I am therefore satisfied that the Applicant was unfairly dismissed within the meaning of section 385 of the FW Act.
Remedy
[139] Being satisfied that the Applicant:
• made an application for an order granting a remedy under section 394; and
• was a person protected from unfair dismissal; and
• was unfairly dismissed within the meaning of section 385 of the FW Act,
I may, subject to the FW Act, order the Applicant’s reinstatement, or the payment of compensation to the Applicant.
[140] Under section 390(3) of the FW Act, I must not order the payment of compensation to the Applicant unless:
(a) I am satisfied that reinstatement of the Applicant is inappropriate; and
(b) I consider an order for payment of compensation is appropriate in all the circumstances of the case.
Is reinstatement of the Applicant inappropriate?
Submissions
[141] The Applicant submitted that reinstatement is not appropriate. In answer to my question about why reinstatement would not be appropriate she replied:
“… because there is no respect there on both sides. And the environment for me had gotten so – everything was just dragging along. Nothing was getting done. And frankly, I wasn’t maybe respecting some of the people I was working with – no, no, no it would never – they can’t do that. That would be mean.” 124
[142] The Respondent submitted that reinstatement is not appropriate because of the Applicant’s misconduct and the Respondent’s loss of trust and confidence in her.
Findings
[143] Having regard to these submissions and my direct observation of the breakdown in the relationship between the Applicant and the Respondent on display during the course of these proceedings I find that reinstatement is inappropriate. I will now consider whether a payment for compensation is appropriate in all the circumstances.
Is an order for payment of compensation appropriate in all the circumstances of the case?
[144] Having found that reinstatement is inappropriate, it does not automatically follow that a payment for compensation is appropriate. As noted by the Full Bench in Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter[2014] FWCFB 7198,“[t]he question whether to order a remedy in a case where a dismissal has been found to be unfair remains a discretionary one…”. 125
Submissions
[145] The Applicant sought compensation. She described the remedy sought as follows:
“Any and all outcomes allowed by law including but not limited to money and various corrective actions by the ex employer” 126
[146] In response to a question from Deputy president Bull on 16 October 2019 the Applicant replied:
“I guess I’m going for the maximum of six months because you’ve got to, you know, shoot high. I don’t know what else to ask for” 127
[147] The Respondent submitted that payment of compensation is not appropriate because there was no economic loss associated with the termination. This is because the Applicant would have only remained in employment for a short period and had made no efforts to obtain alternative employment up to the date of the first hearing on 16 October 2019.
[148] The Applicant made a submission about the likely duration of her employment. In answer to my question about how long she would have remained in employment she replied:
“How long is a piece of string? I don’t know.”
[149] In answer to my question, “You don’t think that what you were experiencing told of an imminent departure, either initiated by you or them other than in May?” the Applicant responded:
“I loved the place in terms of the store and the clients, and even the people. But the last six months, I just – I’d turn up early. I’d turn up at 8 o’clock and I’d go and have breakfast for an hour, so – I just didn’t want to be there. There was just too much – one thing gets said, another thing gets done, nothing’s getting done anyway, and it’s just like too hard to progress anything.” 128
[150] In response to a question from Deputy President Bull on 16 October 2016 in relation to mitigating her loss the Applicant said:
“My mum is not well and I’ve actually been able to assist her with doctor’s appointments and all sorts of things that she needs to be done that she isn’t otherwise able to do so it’s actually – in that sense it’s come at a good time. I mean, I have been looking at employment positions, but I haven’t even seen anything that’s even remotely suited … No, no applications just looking.” 129
[151] On 3 December the Applicant sought to introduce some new evidence in relation to her efforts to mitigate the impact of her dismissal in her closing submissions. It was not admitted. The parties agreed, in effect, that at its highest the Applicant’s submission was that she had made some visits to prospective employers prior to October.
Findings
[152] In light of the Applicant’s submissions in relation to likely duration of employment and the appropriateness of reinstatement, my direct observation of her demeanour towards the Respondent during proceedings and the views the Respondent had come to about her conduct, I estimate that she would have remained in employment for no longer than a month.
[153] In light of the Applicant’s submissions about her activities throughout the course of the month following her dismissal I find that she did not seek to mitigate her loss.
[154] In all the circumstances, I do not consider that payment of compensation is appropriate. I have come to this conclusion for the following reasons that are already the subject of findings in this decision:
(a) The Applicant’s misconduct was frequent, persistent and undermined the safety and welfare of her colleagues. On this conduct alone discounting possible compensation by 100% is appropriate.
(b) The Applicant’s continuing employment was on a knife’s edge. There was no real prospect of it continuing for more than a month had she not been dismissed when she was.
(c) The Applicant did not make any real attempt to mitigate her loss over this period. Rather she regarded the time as the opportunity to assist her mother with doctor’s appointments. She had no real economic loss.
I therefore decline to order any remedy, notwithstanding that I found the Applicant was a person protected from unfair dismissal and, as a result of procedural flaws in the termination process, had been unfairly dismissed.
DEPUTY PRESIDENT
Appearances:
Mr N Tindley on behalf of the Respondent.
Ms V Misoyannis on her own behalf.
Hearing details:
Sydney.
16 October 2019.
3 December 2019.
Printed by authority of the Commonwealth Government Printer
<PR715473>
1 Transcript of 16 October 2019, PN4.
2 Warrell v Fair Work Australia [2013] FCA 291.
3 Respondent’s outline of submissions on permission to be represented, dated 15 October 2019.
4 Transcript of 16 October 2019, PN16.
5 Transcript of 3 December 2019, PN2.
6 Fair Work Act 2009 (Cth) s 388.
7 Ibid, s 389.
8 Sayer v Melsteel Pty Ltd[2011] FWAFB 7498 at [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002) at [69].
9 Edwards v Justice Giudice [1999] FCA 1836 at [7].
10 King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24].
11 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, at [373].
12 Ibid.
13 Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681 at [685].
14 Respondent’s outline of submissions dated 4 October 2019 at paragraph 31.
15 Ibid at paragraph 32.
16 Applicant’s submissions in reply dated 10 October 2019 at paragraph 11.
17 Applicant’s response to the witness statement of Michael Newton-Brown, dated 10 October 2019, at paragraph 56.
18 Applicant’s response to the witness statement of Lyndal Jirgenson, dated 10 October 2019, at paragraph 31.
19 Applicant’s submissions in reply dated 10 October 2019 at paragraph 11; Transcript of 16 October 2019 at PN516.
20 Applicant’s submissions in reply dated 10 October 2019 at paragraph 22.
21 Ibid at paragraph 105.
22 Transcript of 16 October 2019, PN419.
23 Ibid, PN418.
24 Ibid, PN433.
25 Witness statement of Courtney Whale, dated 4 October 2019, at paragraph 11.
26 Ibid at paragraph 12.
27 Annexure A to the witness statement of Courtney Whale, dated 4 October 2019.
28 Witness statement of Courtney Whale, dated 4 October 2019, at paragraph 13.
29 Ibid.
30 Ibid.
31 Ibid at paragraph 14.
32 Ibid.
33 Ibid.
34 Ibid at paragraph 15.
35 Ibid.
36 Ibid at paragraph 16.
37 Ibid at paragraph 17.
38 Ibid.
39 Ibid.
40 Ibid at paragraph 18.
41 Ibid at paragraph 18.
42 Ibid at paragraph 18.
43 Ibid at paragraph 19.
44 Ibid at paragraph 20.
45 Ibid.
46 Ibid.
47 Applicant’s response to the witness statement of Courtney Whale, dated 10 October 2019, at paragraph 72.
48 Transcript of 16 October 2019, PN453.
49 Ibid.
50 Applicant’s response to the witness statement of Courtney Whale, dated 10 October 2019, at paragraph 68.
51 Ibid at paragraph 73.
52 Ibid at paragraph 74.
53 Transcript of 16 October 2019, PN437.
54 Ibid, PN455.
55 Applicant’s response to the witness statement of Courtney Whale, dated 10 October 2019, at paragraph 75.
56 Transcript of 16 October 2019, PN456-457; Applicant’s response to the witness statement of Courtney Whale, dated 10 October 2019, at paragraphs 74-78.
57 Transcript of 16 October 2019, PN577.
58 Ibid, PN608.
59 Ibid, PN609-611.
60 Applicant’s response to witness statement of Lyndal Jirgenson, dated 10 October 2019, at paragraph 60.
61 Applicant’s response to Respondent’s outline of submissions, dated 10 October 2019, at paragraph 73.
62 Transcript of 16 October 2019, PN465.
63 Transcript of 16 October 2019, PN470-PN471; Applicant’s response to the witness statement of Lyndal Jirgenson, dated 10 October 2019, at paragraph 60.
64 Transcript of 16 October 2019, PN466.
65 Ibid, PN476.
66 Transcript of 3 December 2019, PN533.
67 Applicant’s submissions in reply dated 10 October 2019 at paragraph 107.
68 Ibid at paragraph 20.
69 Applicant’s response to the witness statement of Lyndal Jirgenson, dated 10 October 2019, at paragraph 45.
70 Transcript of 3 December 2019, PN594.
71 Ibid, PN595.
72 Applicant’s submissions in reply dated 10 October 2019 at paragraph 23.
73 Transcript of 3 December 2019, PN37.
74 Respondent’s response to the Applicant’s email request, dated 10 October 2019.
75 Witness statement of Michael Newton-Brown, dated 4 October 2019, at paragraph 21.
76 Ibid at paragraph 22.
77 Witness statement of Lyndal Jirgenson, dated 4 October 2019, at paragraph 10 and 11.
78 Applicant’s submissions in reply dated 10 October 2019 at paragraph 33.2.
79 Applicant’s response to the respondent’s outline of submissions, dated 10 October 2019, at paragraph 70.
80 Applicant’s submissions in reply dated 10 October 2019 at paragraph 35.
81 , Witness statement of Lyndal Jirgenson, dated 4 October 2019, at paragraph 23.
82 Rose v Telstra Corporation Ltd Print Q9292 (AIRC, Ross VP, 4 December 1998)
83 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
84 Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).
85 Ibid.
86 Applicant’s response to witness statement of Lyndal Jirgenson, dated 10 October 2019, at paragraph 63.
87 Applicant’s response to the Respondent’s outline of submissions, dated 10 October 2019, at paragraph 73.
88 Ibid at paragraph 74.
89 Transcript of 16 October 2019, PN483.
90 Witness statement of Lyndal Jirgenson, dated 4 October 2019, at paragraph 24.
91 Ibid.
92 Ibid at paragraph 25.
93 Transcript of 3 December 2019, PN39.
94 Ibid, PN43.
95 Applicant’s response to the witness statement of Lyndal Jirgenson, dated 10 October 2019, at paragraph 58.
96 Ibid at paragraph 60.
97 Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), [75].
98 RMIT v Asher (2010) 194 IR 1, 14-15.
99 Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.
100 Respondent’s outline of submissions, dated 4 October 2019, at paragraph 35.
101 Ibid.
102 Applicant’s response to the Respondent’s outline of submissions, dated 10 October 2019, at paragraph 140.
103 Annexure E to the witness statement of Lyndal Jirgenson, dated 4 October 2019.
104 Transcript of 3 December 2019, PN432.
105 Applicant’s response to the witness statement of Courtney Whale, dated 10 October 2019, at paragraph 87.
106 Applicant’s response to the witness statement of Lyndal Jirgenson, dated 10 October 2019, at paragraph 58.
107 Applicant’s response to the Respondent’s outline of submissions, dated 10 October 2019, at paragraph 141.
108 Annexure A to the witness statement of Lyndal Jirgenson, dated 4 October 2019.
109 Etienne v FMG Personnel Services[2017] FWCFB 3864 at 33.
110 Explanatory Memorandum, Fair Work Bill 2008 (Cth), [1542].
111 Transcript of 3 December 2019, PN1058.
112 Ibid, PN599.
113 Transcript of 16 October 2019, PN491.
114 Ibid, PN490.
115 Ibid, PN492.
116 Transcript of 3 December 2019, PN601.
117 Ibid, PN462, PN483, PN901-905, PN1052.
118 Ibid, PN 905.
119 Ibid, PN485, PN954.
120 Ibid, PN12.
121 Witness statements of Lyndal Jirgenson and Michael Newton-Brown dated 4 October 2019; Transcript of 3 December 2019 PN83, 90, 107, 114, 338, 400, 775.
122 Transcript of 3 December 2019, PN1016.
123 ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]–[7].
124 Ibid, PN1126.
125 Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter[2014] FWCFB 7198.
126 Form F2 – Unfair dismissal application lodged on 14 June 2019.
127 Transcript of 16 October 2019, PN28.
128 Transcript of 3 December 2019, PN1119-1121.
129 Transcript of 16 October 2019 PN32, PN36.
0
10
0