Natalie Eastwood v Brewarrina Business Coop Limited T/A Brewarrina Business Centre

[2016] FWC 6709

[2016] FWC 6709

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Natalie Eastwood
v
Brewarrina Business Coop Limited T/A Brewarrina Business Centre
(U2016/5128)

COMMISSIONER MCKENNA SYDNEY, 27 SEPTEMBER 2016

Application for relief from unfair dismissal.

[1] Natalie Eastwood (“the applicant”) has made an application pursuant to s.394 of the Fair Work Act 2009 (“the Act”) in which she seeks an order for an unfair dismissal remedy with respect to her dismissal by Brewarrina Business Coop Limited T/A Brewarrina Business Centre (“the respondent”).

[2] The applicant commenced employment with the respondent in July 2015 and worked with the organisation for about seven months, until her dismissal with a week’s pay in lieu of notice. File materials described the respondent as a not-for-profit cooperative which worked to ensure sustainable enterprise in Aboriginal communities. The respondent formerly (but no longer) had operations in locations including Brewarrina and Lightning Ridge in north-west New South Wales. The applicant was employed as a full-time Family as First Teacher Educator to assist with the respondent’s provision of services to the local community. For her part, the applicant considers that she was a hard-working employee and well-regarded within the respondent’s client base, and passionate about her role. These matters notwithstanding, the applicant considered she worked in an environment where, among other issues, she (and other employees) had been the subject of workplace bullying. For its part, the respondent’s management considered that the applicant was an employee who (despite assistance and counselling) underperformed and who was aggressive in her workplace interactions.

[3] The applicant was dismissed on 17 February 2016 and subsequently lodged this application, in which she sought orders concerning reinstatement and remuneration. Legal Aid New South Wales initially assisted the applicant with respect to her application and, it appears, also assisted the applicant to respond to a jurisdictional objection the respondent raised. That jurisdictional objection was advanced against the background of contentions that the named respondent was incorrectly recorded in the application, and that the correct entity was a small business employer. Objections were taken to the application on the bases that: (a) the applicant’s employment did not meet the minimum employment period; and (b) the respondent was a small business and the dismissal was consistent with the Small Business Fair Dismissal Code.

[4] On 4 April 2016, the respondent subsequently withdrew its jurisdictional objections to the application. It is not clear, but it appears to have been conceded that associated entities took the number of employees above the relevant threshold for small business employer status. On 20 April 2016, Drake SDP issued a decision formally dismissing the jurisdictional objection - and referred the matter for conciliation and, if appropriate, arbitration.

[5] Further to the allocation of the file to me, I listed the application by telephone on various occasions with a view to endeavouring to assist the parties to bring matters to a settlement. It was, unfortunately, a frequent occurrence that parties or representatives did not attend upon the telephone proceedings. In any event, at one point during the course of the various listings, at which time the applicant was then represented by private solicitors (Baker & McKenzie) and the respondent was represented by a paid agent (DJMIR, industrial relations consultants), it seemed there was some realistic prospect of settlement. The matter did not, however, settle.

[6] On 23 June 2016, the applicant’s solicitors filed a Notice of Representative Ceasing to Act, together with advice that the applicant did not wish to take part in further conciliation and also wished to have the matter listed for hearing. In view of this development, and although there were to be further listings by telephone before the hearing, directions were issued on 28 June 2016 and the matter was listed for two days of proceedings on 1 and 2 September 2016, in Dubbo Family Court – being, in effect, the first consecutive days that were suitable and available for a regional sitting. The applicant filed and served certain materials pursuant to the directions. The directions were subsequently suspended, initially due to the illness of the respondent’s agent and for a period thereafter, during which time further endeavours were, once again, made to settle the application; however, these endeavours were, once again, without success.

[7] The listings in Dubbo on 1 and 2 September 2016 were vacated on the application of the applicant, without objection from the respondent, in connection with a funeral on the second day of the listing and the exigencies associated with Sorry Business. Based on the materials that had by then been filed, I determined to reduce the listing by one day and to conduct the proceedings by video-link between Sydney and Dubbo. The matter then proceeded on 16 September 2016.

Background

[8] Apart from much of its lack of relevance as to whether the dismissal was harsh, unjust or unreasonable, and whether there should be an order for an unfair dismissal remedy, aspects of the material adduced in this case made for regrettable reading in its description of a workplace characterised by apparent dysfunction and difficulties in interpersonal relationships – more particularly given some of the highly immoderately-worded personal attacks contained therein by and about various individuals. The content of some of the material discloses a considerable level of antipathy among various individuals about what unfolded during the applicant’s period of employment with the respondent, and what occurred thereafter in connection with, for example, the closure of services.

[9] I do not propose to canvass such matters in this decision given their general lack of relevance to issues properly arising for determination in relation to an application for an unfair dismissal remedy. I will endeavour, instead, to limit consideration to those matters of relevance to the employment relationship between the applicant and the respondent, and the circumstances surrounding the dismissal itself.

[10] The applicant initially sought orders for reinstatement and remuneration, but she did not, in the end, specify the remedy she was seeking – albeit I understand it to be that she seeks an order for compensation. In this regard, it may be noted that the respondent had its funding withdrawn around mid-2016 and no longer provides any community-type services of any description. The majority of the respondent’s former employees have been dismissed as a result of the withdrawal of funding. Annette Pascoe, who was formerly the applicant’s supervisor and who was the only witness called in the respondent’s case, is now employed on an intermittent, casual basis to attend to arrangements associated with the closure of the respondent’s operations following the withdrawal of government funding. As at the date of the hearing, the respondent employed one or two employees in its only remaining operation, namely, a small museum (which self-funds).

[11] The applicant indicated that when she had taken on the role, she stated to the then CEO, Catherine Edwards Bott, she had no qualifications in the field of work to which she was recruited, but she did have a great understanding of the Ngemba community. Among other matters, the applicant considered that her written work had suffered due to confusing direction and instruction provided by the CEO and Ms Pascoe. The applicant said she had met her KPIs. Moreover, the applicant contended that if it was the case her communication skills were unsatisfactory (which the applicant denied) community members would not have engaged with her in the programmes with which she was involved.

[12] The evidence in the respondent’s case was given by Ms Pascoe. By way of background, Ms Pascoe is a qualified Early Childhood Teacher, who has worked in the early childhood education for some 18 years, including having lived in Aboriginal communities for a decade. In September 2015, the CEO raised concern with Ms Pascoe that the applicant was not meeting her KPIs and later also raised other concerns about the applicant’s performance. In or about October 2015, Ms Pascoe conveyed her concern to the CEO that the applicant may not have known what was expected of her by the CEO in the position. Ms Pascoe further considered that as the applicant had not previously undertaken this type of role she needed more assistance than she was receiving in order to understand and meet expectations, given her lack of previous employment experience in a social welfare or early childhood environment. The CEO assigned Ms Pascoe to a mentoring role for the applicant, albeit this was largely remotely conducted by telephone because Ms Pascoe was based in Lightning Ridge about two hours’ drive from the applicant’s Brewarrina-based work location.

[13] Ms Pascoe considered that with her professional assistance through plans and telephone support that the applicant was then able to engage five regular participants as part of her KPI strategy, which Ms Pascoe considered to be “a positive outcome”. Ms Pascoe said she also supported the applicant in establishing a men’s programme and asked the applicant to provide work plans in that regard; however, this outcome was not achieved.

[14] On 25 November 2015, Ms Pascoe had a meeting with the applicant. Ms Pascoe’s evidence was that the issues including the following were discussed: the applicant’s (alleged) verbal aggression towards other staff; Ms Pascoe’s concern that the applicant (allegedly) had “yelled” at staff and had also taken it upon herself to criticise other staff members’ performance; Ms Pascoe’s concern the applicant would not formally record any of her issues or grievances and would only ever raise them verbally; concern that the applicant had been found to be conducting activities that were not linked to her position or programme, without approval; and that the applicant had been absent from work to drive co-workers to non-work related appointments, and her timesheet did not reflect her absence. Ms Pascoe said that in the meeting on 25 November 2015, she also asked the applicant if she was interested in studying Early Childhood or Family Support as a work-based traineeship. While the applicant advised that she was interested in Family Support, this training did not eventuate as the applicant’s work performance did not improve to the point where she could be released for study. Indeed, in Ms Pascoe’s view, the applicant’s work continued to deteriorate even further. Ms Pascoe considered it would have been a bad time for the applicant to take on a new project and she was “very conscious of not setting up staff to fail with unrealistic performance goals.”

[15] It appears that sharp division emerged at some point within staff ranks and, perhaps, in the local community about a staff vacancy within the respondent’s operations (which was ultimately filled by internal promotion).

[16] On 21 January 2016, the applicant sent email correspondence to staff expressing her concerns about an employee of the respondent and her concern that a Community Liaison officer position had not been advertised. That email read:

“Morning Fellow Co-workers

Last night I went home and had sat down and seriously had a good think about things that are happening here at work.

I have two concerns that are really bothering me that I need to share with you all.

[Named employee’s] position and the roller coaster that this will cause.

The Community Liaisons position not being advertised as this is a very important role for community and the backlash from community that this organisation shall receive.

Last year [named former employee] had put her formal resignation in and I believe that this was plenty of time for advertisement. Already there has been a lot of talk from community regarding this position and this is making me feel quite uncomfortable as I know the importance of this role for community.

When will this position be advertised.” (sic.)

[17] Later that same day, 21 January 2016, Ms Pascoe sent the following email to staff:

“Firstly, I would like to say Natalie I found this email inappropriate and out of line. Should you wish to address issues relating to staff this should be done directly to the CEO and your supervisor in a private face to face conversation. Which I believe to some extent has already been done.

Secondly, employment issues and staff employment are the concern of the CEO. The CEO has the right to employ staff they feel are suitable qualified to complete duties relating to relevant positions. Who or how the CEO selects these staff are at their discretion.

Might I remind you and other staff this was how many of you were employed.

Might I also remind all staff included in this email the CEO has the right to select staff without influence by any perceived prejudices of other staff which is reflected in the staff handbook on page 29 section 16.2.

[The CEO] and I believe there has been a discussion by a group of staff this morning which has led to some rather heated moments and words being exchanged. This is out of line and is not acceptable behaviour.

[The CEO] and I would advise that this behaviour is to cease immediately and should any further comments be made concerning staff members they will be subject to disciplinary action under the pretension you are actively working against the organisation.

As for the community if they have an issue with the recruitment processes you are to politely redirect them to the CEO and have no further comment. All complaints will be received in writing as per the Grievance Policy.” (sic)

[18] On 22 January 2016, the applicant wrote to Ms Pascoe in the following terms:

“Good Morning Boss

I wish to take this further and speak to you about this matter and if you are not too busy I would like to make an appointment with you.”

[19] A meeting was held on Friday, 22 January 2016 that lasted for three hours. Ms Pascoe said that the matters discussed were about how the applicant was feeling and what she had been doing. Despite Ms Pascoe’s initial concerns about what might transpire during the meeting, Ms Pascoe was “relieved” when the applicant said words to the effect that “this seems to be getting out of hand and I need to focus on my role as the [Family as First Teacher] Educator and my own work performance”. Ms Pascoe discussed other matters with the applicant, including advising her it was the CEO’s role to make staff selections to ensure the service was well-placed to meet its KPIs. Ms Pascoe also directed the applicant to review the respondent’s grievance handling in the staff handbook to help her to understand the procedures to follow if she had further concerns.

[20] The following Monday, 25 January 2016, the applicant wrote to Ms Pascoe in the following terms:

“Good Morning

I would just like to say that I take great offense to what has been written about myself in this email [i.e. Ms Pascoe’s correspondence of 21 January 2016].

Can you please put this in writing about the heated moments and words being exchanged that had taken place in the centre as I believe that this is a untrue statement

and I will not be subjected to false accusations.” (sic.)

[21] Shortly after the applicant sent the preceding email correspondence to Ms Pascoe on 25 January 2016, Ms Pascoe replied in the following terms:

“Good Morning Nat

I believe this has been address on Friday with a face to face discussion which went for 3 hours to give you the opportunity to explain your side of the events. The email you are referring to has at no time named you and was a general reply to an email that has included the whole team in Brewarrina of which you sent.

I will quote your words on Friday – “this seems to be getting out of hand and you need to focus on your role as the FaFT Educator and your own work performance”.

You have been asked to provide details of your activity for the Group on Friday 29^th at Orana Haven given you will be absent on Wednesday.

I expect I will receive this information by 2pm today along with a request of any goods you require to undertake the session.

I have also asked about your files and file notes from the activity on 15^th January given you have 11 to complete this will take some time. Given you have told me you have been working on this I should receive details of these by the end of today also.

It is now time to work on activates you are paid to provide to the community you are passionate about and do very well at when focused.

I look forward to seeing a quality amount of work today.

Thanks Nat

Regards
Annette” (sic)

[22] On 3 February 2016, the applicant took part in a work-based supervision session which involved planning her work activity for the following month. According to Ms Pascoe, the applicant continuously raised issues unrelated to her work and complained about other colleagues rather than concentrating on the task at hand. As a result of certain other matters the applicant raised, Ms Pascoe referred the applicant to the respondent’s employee assistance programme. At the end of the supervision session, Ms Pascoe emailed the notes from the discussion to the applicant so she could “reflect on the activity” and receive “work direction”. Ms Pascoe explained that this was meant to focus on positive aspects of the applicant’s work, rather than the poor performance issues. The applicant later sent an email to Ms Pascoe which read: “Thanks for today”.

[23] On Friday, 5 February 2016, the applicant sent an email to Ms Pascoe which read:

“Afternoon Annette

I am going home as I am not feeling very well.
Due to I have been subjected to rude behaviour.”

[24] Ms Pascoe responded a short time later:

“Hi Nat

Sorry to hear you are not well.
Is everything ok today?”

[25] On Monday, 8 February 2016, the applicant sent the following email to Ms Pascoe:

“Good morning Annette

Thank you for asking.

But No I am not ok I have an appointment with a counsellor today I know this will help. As this should ease a lot of the burden that I have.

Cheers.”

[26] Ms Pascoe deposed that around this time it was common knowledge that the applicant’s “personal issues had escalated” and, to that end, the respondent had supported her with time off work to attend meetings out of town and with other matters.

[27] On 8 February 2016, a meeting was held to between the CEO and the applicant, in the presence of the respondent’s financial officer. Two pages of notes from the meeting were in evidence – which included transcript recording the applicant’s concern that there had been some form of (improper) interference with her computer and telephone line, and also a concern about community members having come to her home to complain that jobs had not been advertised. Other matters were also discussed – including an unfortunate comment the CEO had made about an employee (being an employee who was alleged to have aggressively cut-down the playground’s trees with a chainsaw in response to being asked to tend to the playground).

[28] Matters reached a point where Ms Pascoe was of the view that no productive work was being undertaken by either herself or the applicant. Ms Pascoe felt her time was being consumed addressing the applicant’s “aggressive and hostile behaviours”, and her failure to meet programme indicators. Moreover, other staff had approached Ms Pascoe indicating that they were upset regarding “hostile comments” from both the applicant and another employee (who later resigned after being stood-down for alleged underperformance and alleged bullying in the workplace). Ms Pascoe considered that the bullying and harassment of other staff by the applicant and a co-worker “was extremely destructive” in the workplace. Ms Pascoe considered she could no longer allow the applicant to continue to engage with the community on behalf of the respondent. As a result, Ms Pascoe sought more formal advice.

[29] Between 9 and 11 February 2016, the CEO and Ms Pascoe had discussions between themselves regarding options to address the applicant’s behaviours. The CEO wanted to dismiss the applicant and was not concerned about formal improvement processes. It is not clear, but the CEO may have considered that because the respondent employed fewer than 15 employees and the applicant had been employed for seven months she would have no recourse with respect to dismissal. Ms Pascoe said the CEO was firm in her decision that the applicant should be dismissed, albeit, for her own part, Ms Pascoe took steps to contact the principal of DJMIR to develop a performance improvement plan for the applicant.

[30] By letter dated 15 February 2016, the CEO wrote to the applicant in the following terms:

“Dear Natalie

Over the past few weeks there have been a number of issues raised with you relating to your ability to communicate in the workplace in a harmonious manner. This includes in both a written and verbal capacity. It has been noticed it is affecting your capacity to work with other staff and your ability to provide the service of which Brewarrina Business Cooperative is funded by the government to deliver.

Although these issues have been raised with you in face to face meetings and support using the Employee Assistance Program, in an attempt to address the concerns, inappropriate communications are still being displayed by yourself.

As we have attempted to work with you in regards to these issues without a change in behaviour, we have been left with no other option but to enter into a formal process to enable these issues to be resolved.

Should we fail to see changes in your ability to communicate effectively within the service during the review period we shall be faced with no other option but to cease your employment.

During any meetings, you will be entitled to have a person for support, however, the support person is not a representative and cannot speak on your behalf. Should this take place the discussion will not be able to continue. The person of support should not be a current or past employee of the organisation.

Please review the attached Performance Issue Sheet to advise you of the concerns we wish to resolve.

Your opportunity to discuss these issues, listening to your input and comments regarding these issues in detail in our review meeting to be held Wednesday 17^th February at 9am to be held in the Child Care Meeting Room with Annette Pascoe and an independent board member.”

[31] The CEO subsequently directed Ms Pascoe to dismiss the applicant, and provided her with a letter to convey advice of termination of employment which was dated 17 February 2016. The letter confirming termination of employment relevantly read:

“On 8th July 2015 you commenced employment with us Brewarrina Aboriginal Integrated Child and Family Centre.

This period has afforded us the opportunity to observe your ability to perform tasks assigned and determine how well you fit into centre culture. Equally it has also afforded you the opportunity to evaluate what we expect of you in your position.

After careful consideration of your contribution to date we have decided that it is in the best interests of all parties that your employment with us should be discontinued. Your employment will end immediately and you will receive in addition to any accrued entitlements one week’s pay in lieu of notice in accordance with your Award. You will not be required to work your notice period.”

[32] At the meeting on 17 February 2016, the correspondence of 15 February 2016 was read to the applicant, as was the letter advising of termination of employment. As to the compressed period of time involved in these developments, the applicant’s evidence included that:

• She had requested an extension of time to respond to the matters raised.



• She had informed Ms Pascoe that her support person was not available for the meeting on 17 February 2016.



• She had informed Ms Pascoe that she was feeling sick, nervous and anxious.



• Her request to record the meeting was declined, as was her request for a copy of Ms Pascoe’s meeting notes.



• Ms Pascoe had threatened to call the police when the applicant (initially) refused to leave the workplace following the dismissal.

[33] Ms Pascoe’s evidence concerning the meeting on 17 February 2016 essentially accorded with the applicant’s description as to relevant matters, albeit with her own characterisations as to what unfolded. For example, it seemed to Ms Pascoe that the applicant was not collecting information based on the issues listed in the document; she did not have a medical certificate to indicate she was unwell; and the applicant was dressed in her work uniform. Ms Pascoe read the letter that had earlier been sent to the applicant about the performance and conduct-related issues. Ms Pascoe asked the applicant if she had any comments to make; the applicant stated no, as she was still gathering evidence. Ms Pascoe asked the applicant if she was sure she had nothing to add.

[34] After reading the CEO’s letter advising of the termination of employment, Ms Pascoe asked the applicant to collect her belongings and leave her keys. The applicant advised Ms Pascoe she would not leave the premises until she was given a copy of Ms Pascoe’s notes. Ms Pascoe responded by reiterating that the applicant needed to collect her belongings and leave her keys. Ms Pascoe repeated this two to three times, and advised the applicant that the police would be called to remove her if she did not leave. The applicant then packed her belongings with the assistance of a work colleague, and left the premises stating that she had really enjoyed working with all the staff – to which Ms Pascoe responded “Thank you Nat”.

Consideration

[35] As I have noted earlier, Drake SDP formally dismissed the respondent’s initial jurisdictional objections which turned on purported small business status or the minimum employment period, or both. As to other preliminary matters required to be considered by s.396 of the Act, there was no contest between the parties, and I otherwise find, that the application was made within time; the applicant was a person protected from unfair dismissal; and the dismissal was not a case of genuine redundancy.

[36] Section 387 of the Act identifies the criteria for considering harshness etc. I turn now to consider the matters which the Commission must take into account in considering whether a dismissal was harsh, unjust or unreasonable. Shortly stated, I consider that respondent had a valid reason for the dismissal related to both the applicant’s capacity and her conduct. Equally however, the dismissal was effected in a way that, in the end, lacked any semblance of procedural fairness – and truncated what might otherwise have unfolded during a more formal performance review period.

[37] I turn now to consider those matters specified by the Act.

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)

[38] I am satisfied the respondent had a valid reason for the dismissal related to the applicant’s capacity and conduct (including its effect on the safety and welfare of other employees). The applicant, who had no prior experience in the field in which she obtained employment with the respondent, was not, I am satisfied, demonstrating that she had the capacity to properly perform her role. If the applicant did have the capacity or potential capacity, it appears she distracted herself or allowed herself to be distracted by matters which were not properly her concern within the employment relationship.

[39] The applicant’s conduct, as reflected in, for example, the regrettable tenor of some of her communications, appears to have been based on the applicant’s view that she was better placed than those who managed and supervised her in her employment about how the respondent’s operations should be conducted and the manner in which her work might be undertaken. The applicant took it upon herself to be a conduit for the views of some members of the local community or some members of the staff; the tenor of some of the communications was certainly high-handed and, on one view of matters, also erratic.

[40] I am further satisfied the applicant displayed aggression in the workplace, such as may have had an effect on the safety and welfare of other employees (albeit I note that the applicant alleges that she herself was the subject of bullying, and genuinely considers this to have been the case). In this regard, I note the applicant did not make any application to the Commission with respect to an anti-bullying claim prior to the dismissal, and nor did she make any workers’ compensation claim either before or after the dismissal with respect to any stress injury.

Whether the person was notified of that reason

[41] The reason for the dismissal was that the period of employment had afforded the respondent the opportunity to observe the applicant’s ability to perform tasks assigned and determine how well she fit into the centre’s culture. The letter advising of the dismissal noted that, equally, the period of employment had afforded the applicant the opportunity to evaluate what the respondent expected of the applicant in her position.

[42] The letter of dismissal indicated that after careful consideration of the applicant’s contribution to date the CEO had decided that it was in the best interests of all parties that the applicant’s employment with the respondent “should be discontinued”, with one week’s pay in lieu of notice.

Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[43] The applicant was not given an opportunity, or any practical or real opportunity, to respond to any reason for the dismissal related to her capacity or conduct. On 15 February 2016, the CEO wrote to the applicant noting, among other matters:

• That over the preceding weeks a number of issues had been raised with the applicant relating to her ability to communicate in the workplace in a harmonious manner, both in writing and verbally.



• It had been noticed such issues were affecting the applicant’s capacity to work with other staff and her ability to deliver the services for which the respondent received government funding.



• Although these issues had been raised with the applicant in face to face meetings and support using the employee assistance programme, in an attempt to address the concerns, the respondent considered that inappropriate communications were still being displayed by the applicant.



• As attempts had been made to work with the applicant with respect to these issues, without a change in behaviour, the CEO considered that the respondent had been left with no option other than to commence a formal process to enable these issues to be resolved.

[44] The CEO noted that unless changes were seen in the applicant’s ability to communicate effectively within the service “during the review period”, dismissal would ensue. The CEO further suggested in her correspondence that there would be further “meetings”. The CEO requested that the applicant review the attached Performance Issue Sheet, so she would be advised of the concerns the respondent wished to resolve.

[45] The CEO suggested that the applicant would be given an opportunity to discuss these issues, involving “listening to your input and comments regarding these issues in detail” on 17 February 2016 with Ms Pascoe and an independent board member.

[46] Despite the assertions by the CEO in her letter to the applicant of 15 February 2016, the CEO determined to dismiss the applicant before any such meeting was held on 17 February 2016. The CEO provided the dismissal letter to Ms Pascoe and instructed her to dismiss the applicant at the meeting on 17 February 2016.

Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal

[47] While the respondent (in its letter dated 15 February 2016) represented to the applicant that she could have a support person present to assist in “any meetings”, its actual conduct in connection with the discussions that were held on 17 February 2016, in my view, constitutes an unreasonable refusal to have a support person present – and, unbeknownst to the applicant when she attended the meeting, the decision had already been made to dismiss because the CEO had already provided the dismissal letter to Ms Pascoe with her direction to dismiss the applicant. This is because the meeting was arranged on short notice, and, it was not disputed, the applicant’s support person was not available to attend the meeting on 17 February 2016. Moreover, and incidentally, the respondent otherwise also sought (inappropriately, on one view) to constrain the role of any support person and limit the class of persons who could act in a support role in the manner specified in the CEO’s letter of 15 February 2016.

If the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

[48] The dismissal involved elements relating to unsatisfactory performance. Endeavours had been made to assist the applicant in relation to performing her role to the better satisfaction of the respondent, but it seems that it was not until the CEO’s letter of 15 February 2016 that the applicant was actually warned of the possibility of dismissal. Thereupon, matters moved very quickly indeed to the dismissal being effected on 17 February 2016, at a meeting the applicant had otherwise understood to have as its purpose discussion of the matters addressed in the respondent’s Performance Issue Sheet and what might then unfold during the “review period” concerning resolving matters.

The degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal

[49] The poor procedures the respondent ultimately adopted in relation to the dismissal cannot be satisfactorily explained solely by reference to the comparatively small size of the respondent’s operations - unless, perhaps, if considered in the context of the CEO’s misunderstanding of the number of employees employed by the respondent through associated entities (and the effect of that misunderstanding on the peremptory manner in which the dismissal was ultimately effected).

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

[50] The respondent, at all relevant times, had access to external human resources advice from its paid agent, DJMIR.

Any other matters that the Commission considers relevant

[51] There was much material before the Commission about matters including: internal disputation; allegations and counter-allegations of bullying in the workplace; individuals who were absenting themselves from work due to stress; workers’ compensation claims; alleged privacy intrusions and the like. While the documentary materials traversed such matters at length and I have considered them, they were not ultimately relevant.

Other considerations

[52] I am satisfied that the respondent had a valid reason for the dismissal. Equally, I am satisfied that the manner in which the respondent dismissed the applicant was squarely characterised by a lack of procedural fairness to the applicant.

[53] Reinstatement is no longer sought by the applicant and is self-evidently inappropriate here, because the organisation as it formerly existed no longer exists. Section 392 of the Act identifies the criteria for deciding amounts for the purposes of an order for compensation. Taking into account all the circumstances of the case, I would not, in the exercise of discretion, make an order for compensation.

The effect of the order on the viability of the employer’s enterprise

[54] The evidence indicated that all the employees of the respondent who were involved in the provision of community services have been dismissed and its operations in such regards have ceased entirely. I would not think it appropriate that an order for compensation should be made where the respondent has little or no funds, and the only remaining field of operation is a small self-funding museum which employs only one or two people.

The length of the person’s service with the employer

[55] The applicant was employed with the respondent for approximately seven months.

The remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed

[56] The applicant would have continued to be paid in accordance with the remuneration attaching to her position for a period of time, although, I would expect, only for a short period of time given the clear evidence of conduct and capacity issues. Certainly, the applicant’s employment would not have extended past the date when all other relevant employees were dismissed due to withdrawal of government funding.

The efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal/ The amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation/ The amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation

[57] The applicant did not seek employment immediately after the dismissal as she was in receipt of social security payments by way of sickness benefits until 14 July 2016. The applicant subsequently obtained work with a Commonwealth agency for a period of time and received remuneration in the amount described in the evidence. The applicant is now on a work for the dole programme.

Any other matter that the Commission considers relevant

[58] As noted above, the applicant was unable to work in the period to 14 July 2016. A statement dated 6 September 2016 from a medical practitioner indicated that the applicant was unable to work because she had been “under a large amount of workplace bullying and stress and on her termination was unable to work because of the stress she was suffering.” After 14 July 2016, the medical practitioner continued, the applicant felt she was able to take on employment again and did so of her own volition.

[59] The period during which the applicant was, on the evidence of the statement from the medical practitioner, unable to work and in receipt of sickness benefits apparently extended to around or past the date when the respondent’s funding ceased and all other relevant employees were dismissed. It appears, thereby, that the applicant would have been unable to work as a result of a stress-related illness throughout the period to the date that the respondent’s community service operations ceased.

Misconduct reduces amount

[60] I am satisfied that misconduct by the applicant in relation to her aggressiveness in workplace interactions contributed, at least in part, to the respondent’s decision to dismiss the applicant. Even if I considered that it would be appropriate to make an order for compensation given the lack of procedural fairness that attended the dismissal (which I do not, given the financial exigencies now faced by the respondent and the fact medical evidence indicated the applicant would have been unfit for work in the period around the date that the respondent’s operations effectively ceased due to withdrawal of funding), I am also satisfied that the applicant’s misconduct contributed to the respondent’s decision to dismiss the applicant. Even accepting there was an absence of procedural fairness that attended the dismissal, I would reduce any order that may otherwise have been made in the applicant’s favour to nil on account of that misconduct.

Conclusion

[61] In the circumstances, an order dismissing the application issues with these reasons.

COMMISSIONER

Appearances:

N. Eastwood in person.

D. Morphett, agent for the respondent.

Hearing details:

2016.

16 September;

Sydney/Dubbo by video link

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