Nicole Raitt v G-Force Recruitment Ltd
[2023] FWC 946
•20 APRIL 2023
| [2023] FWC 946 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Nicole Raitt
v
G-Force Recruitment Ltd
(U2023/664)
| DEPUTY PRESIDENT COLMAN | MELBOURNE, 20 APRIL 2023 |
Application for an unfair dismissal remedy – application dismissed
Nicole Raitt has made an application for an unfair dismissal remedy under s 394 of the Fair Work Act 2009. From 3 November 2021 until 9 January 2023, Ms Raitt was employed as a team leader by G-Force Recruitment Ltd (company), a not-for-profit employment and recruitment organisation which among other things provides disability support services under contract to government. Ms Raitt was dismissed after the company concluded that she had been wilfully neglecting her duties and had taken up outside employment contrary to her contract of employment. Ms Raitt denies that she neglected her duties or breached her contract and contends that her dismissal was unfair because there was no valid reason to dismiss her, and because she was not afforded procedural fairness. She seeks compensation.
Section 396 of the Act requires the Commission to decide four preliminary matters before considering the merits of an application. In respect of those matters, I have determined the following: the application was made within the 21-day period required by s 394(2); Ms Raitt was a person protected from unfair dismissal; the Small Business Fair Dismissal Code was not applicable to the company; and the dismissal was not a case of genuine redundancy. I will proceed to consider the merits of the application. First however I will briefly address the procedural history of this matter.
On 1 March 2023, I issued directions to the parties to file an outline of submission, witness statements, and any documents on which they wished to rely. Ms Raitt did not comply with these directions. The company made an application under s 399A for Ms Raitt’s application to be dismissed. I listed the matter for a non-compliance hearing on 20 March 2023. Ms Raitt did not attend. I then wrote to Ms Raitt, giving her until 22 March 2023 to explain why she had failed to comply with my directions and attend the non-compliance hearing. On 22 March 2023, Ms Raitt sent to my chambers a brief email, stating that she was unwell and that her mental health had declined. She apologised for not attending the non-compliance hearing and asked the Commission to consider her unfair dismissal application. The following day, I advised the parties that I had determined not to dismiss Ms Raitt’s application under s 399A, and that Ms Raitt was now directed to file in the Commission any submissions and evidence on which she intended to rely by 30 March 2023. Ms Raitt did not file any material. At the determinative conference on 18 April 2023, Ms Raitt adopted the factual statements made in her F2 and gave oral evidence. The company filed an outline of argument and witness statements of Brian O’Connor, its inclusive employment manager to whom Ms Raitt reported, Michael Cherry, the human resources manager, and Priscila Pettiford, a team leader, each of whom gave oral evidence.
Background
Ms Raitt’s job focused on recruitment opportunities for people with disabilities, referred to as ‘participants’. Her role involved meeting with participants in Warrnambool, where she was based, and other towns in the region, including Colac, Mortlake, and Apollo Bay. On 2 December 2023, Ms Raitt attended a meeting with Mr O’Connor and Mr Cherry. They raised with her a large number of concerns about her performance and conduct, including that she had wilfully neglected her duties by failing to attend appointments with a number of participants; made false records indicating that she had attended appointments with participants when she had not; falsified timesheets to show attendance at the office when she was absent; and failed to travel to Colac as she was required to do. Ms Raitt denied that she had done anything wrong. After the meeting, Ms Raitt advised the company that she was unwell, and submitted a medical certificate for the period from 5 to 17 December 2022.
On 6 December 2022 the company gave Ms Raitt a letter setting out its allegations and a range of particulars, including details of participants she had failed to meet. The letter stated that the company had reached a preliminary view that she had committed misconduct. It asked her to explain in writing why her employment should not be terminated.
In her reply dated 16 December 2022, Ms Raitt stated that she had missed some file notes, but that this had not been deliberate, and that although she had been ‘away’ a lot, this was due to exceptional circumstances that the company was aware of. She said that the accusation that she had failed to contact participants was wrong. She denied falsely recording that she had met with participants. Ms Raitt said that she had been told by Mr O’Connor that she did not need to visit Colac because the caseload was small. She denied falsifying timesheets. Ms Raitt said that she had been experiencing exceptional personal circumstances and had felt attacked and threatened by the company at the meeting on 2 December 2022 due to the lack of notice of the meeting and because she was not offered a support person.
On 19 December 2023 Mr Cherry sent Ms Raitt a message stating that the company would consider her response. Later that day Ms Raitt submitted a further medical certificate for the period from 16 to 23 December 2022. On 3 January 2022, she provided a medical certificate for the period from 3 to 13 January 2023.
An online meeting was scheduled for 9 January 2023 to discuss the company’s allegations against Ms Raitt. At the meeting, Mr Cherry told Ms Raitt that the company had recently discovered that she had commenced working for Tiaki Supports Pty Ltd (Tiaki), a disability support provider, and that she had also been operating her own disability support business known as Kindly Caring. Mr Cherry told her that this was contrary to her contractual obligation not to engage in outside work that was in competition with the company. Ms Raitt responded by stating that she had only worked one shift for Tiaki and that she was not an employee of that company. When pressed for further details, Ms Raitt said ‘no comment’. Mr Cherry scheduled a further meeting for later in the day however Ms Raitt told him that she would now only deal with the company by email.
Later that day, Mr Cherry sent Ms Raitt a letter in which he responded to the matters raised in her reply to the show cause letter. Among other things, Mr Cherry said that: Mr O’Connor denied ever having told her that she need not attend the Colac site; Ms Raitt had only 39 case entries for the period from September to December 2022 whereas her colleague in Warrnambool had 196 entries; various participants had told the company that she had failed to contact them and there was no reason for them to lie about this; the company had raised with her its concerns about missing file notes on several occasions; and that Tiaki had confirmed to the company that she had signed a contract of employment. The letter stated that Ms Raitt had lied to the company and breached her contract, that her employment was terminated effective that day, and that she would be paid four weeks in lieu of notice.
Findings
I make the following factual findings. First, I find that Ms Raitt wilfully neglected her duties in several respects. I accept Mr O’Connor’s evidence that he did not tell Ms Raitt that she need not visit Colac, and that on the contrary he specifically told her that she was required to visit Colac every Monday to manage participants and make connections with service providers. I also accept the evidence of Ms Pettiford and Mr O’Connor that several participants contacted the company to advise that they had not had their scheduled appointments with Ms Raitt, appointments which Ms Raitt had resulted, indicating that she had attended them. In this regard, Mr O’Connor gave evidence that he had spoken with at least three participants who told him that Ms Raitt had not kept her appointments with them, when online records made by Ms Raitt stated that she had. Ms Pettiford said that customer service had put through to her telephone calls from participants who said that they had not been seen by Ms Raitt as scheduled; in each case, Ms Raitt had ‘resulted’ the meetings, indicating that she had attended them. Ms Raitt said in her evidence that she believed that she attended to every participant engagement that she had resulted in the system, and that the allegations against her were simply false. I reject this. It is implausible that multiple participants would tell the company that Ms Raitt had not seen them if this was not true.
Secondly, I find that Ms Raitt became an employee of Tiaki while still employed by the company. I accept Mr Cherry’s evidence that on or about 4 January 2023 he spoke with Emma Noble, the owner of Tiaki, who told him that Ms Raitt had signed a contract of employment, had been inducted, had already worked more than one shift and was rostered to work more shifts. Ms Raitt said that she had only worked one shift with Tiaki, however her recollection of the details of her association with Tiaki was not clear; for example, she said that she resigned from Tiaki on 30 December 2022 in a discussion with Todd Noble; but Mr Cherry said that he spoke to Mr Noble on 9 January 2023 to let him know that he had dismissed Ms Raitt, and that Mr Noble told him that Ms Raitt had resigned from Tiaki that same day. Ms Raitt said in her evidence that she might have got the date of her resignation wrong. I prefer and accept the evidence of Mr Cherry. Although the content of the statements of Ms Todd and Mr Todd to Mr Cherry is hearsay to the extent that it is relied on to prove the truth of those statements, there is no plausible reason other than truth for Ms Todd and Mr Todd to have said these things. Ms Raitt admitted working a shift for Tiaki, being inducted into the company on or around 8 December 2022, and signing a contract with Tiaki on 13 December 2022. Clearly, Ms Raitt accepted employment with Tiaki while still a full-time employee of the respondent.
The company contended that Tiaki was a competitor, and that Ms Raitt’s acceptance of employment with it contravened her contract of employment, which stated that she ‘must not engage in paid or unpaid outside work, either as a contractor or an employee, where the work concerned is, or could be, in competition with, or detrimental to, the interests of gforce’. Ms Raitt denied that Tiaki was a competitor of the company because it provided high intensity disability support and there was no question of its clients seeking work. I accept this. However, her employment by Tiaki was still ‘detrimental’ to the company because it meant that she could not devote her full attention to her work at the company. This was a breach of her contract. The fact that Ms Raitt did not remain employed with Tiaki for long does not change this fact.
Thirdly, I find that in several respects Ms Raitt was not honest in her dealings with the company. She represented to the company by her electronic records that she had met with various participants when she had not. And she told Mr Cherry that she was not employed by Tiaki when in fact she was. It is not necessary for me to make factual findings concerning the company’s other allegations against Ms Raitt, including those relating to poor performance and vaping in the workplace.
Consideration
For a dismissal to be unfair, the Commission must be satisfied that it was harsh, unjust, or unreasonable (s 385(b)). In considering whether it is so satisfied, the Commission must take into account the matters specified in s 387. The Commission is required to consider whether there was a valid reason for the dismissal related to the person’s capacity or conduct (s 387(a)). A valid reason is one that is a good and substantiated reason for dismissal.
Based on my factual findings above, it is clear that the company had several valid reasons to dismiss Ms Raitt. She wilfully neglected her duties. She was a team leader and had been placed in a position of trust in which she was relied on to work autonomously, remote from her supervisor and the company’s head office in Geelong. Ms Raitt did not uphold the confidence that had been placed in her. She failed to keep appointments with participants. She resulted appointments to make it appear that she had kept them when she had not. This was not a performance issue. It was serious misconduct and a valid reason for dismissal. Further, Ms Raitt breached her contractual obligation not to engage in outside work that might be detrimental to the company. This was a second valid reason for dismissal. In addition, there was a third valid reason for dismissal, namely the fact that Ms Raitt was not honest with the company about the fact that she had not met with certain participants as scheduled, or about her employment with Tiaki. Further, Ms Raitt was inducted and signed a contract with Tiaki on days when she was covered by a medical certificate covering her absence from work. The presence of valid reasons for dismissal weighs in favour of a conclusion that Ms Raitt’s dismissal was not unfair.
The Commission must take into account whether an employee has been notified of the reason for dismissal and afforded an opportunity to respond to any reason related to conduct or capacity (see ss 387(b) and (c)). Both of these things occurred in this case. Ms Raitt was notified of the reason for dismissal in the termination letter. The allegations against Ms Raitt were raised with her at the meeting with Mr O’Connor and Mr Cherry on 2 December 2022. They were set out in the company’s letter of 6 December 2022. Ms Raitt had an opportunity to respond to them and did so in her reply dated 16 December 2022. A meeting was held on 9 January 2023 to discuss the matters raised by Ms Raitt. Ms Raitt contended that it was unfair of the company not to give her advance notice of the meeting on 2 December 2022. I disagree. The allegations were later put to her in writing, and she was able to consider and respond to them. Even if I had regarded there to have been some procedural shortcoming, it would not have affected my view of the fairness of the dismissal itself, because of the gravity of each of the valid reasons.
Section 387(d) requires the Commission to consider whether the employer unreasonably refused to allow the applicant to have a support person present to assist at any discussions relating to dismissal. There was no such refusal. Ms Raitt said that she was not offered a support person by the company at the meeting on 2 December 2022. But s 387(d) is not concerned with an employer’s offer of a support person.
Section 387(e) requires the Commission to consider whether a person has been warned about any poor performance that is a reason for dismissal. The valid reasons for dismissal referred to above relate fundamentally to Ms Raitt’s conduct. Only the neglect of duty related, in part, to performance. In this regard, I accept Mr Cherry’s evidence that Ms Raitt was warned about her poor record keeping. This was a serious matter because the company’s contract with the federal government requires records to be kept, and audits are conducted periodically.
The Commission must consider the degree to which the size of the employer’s enterprise and the absence of dedicated human resources specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal (see s 387(f) and (g)). In my opinion, these considerations do not carry weight in the present matter.
Section 387(h) requires the Commission to take into account any other matters that it considers relevant. It is relevant to consider whether the dismissal was proportionate to Ms Raitt’s conduct. I find that it was. Ms Raitt misled the company in various respects. She has not expressed remorse for her actions. There was no medical evidence offered to support Ms Raitt’s claim that she was suffering from a mental illness at the time of the dismissal. However, I accept Ms Raitt’s statements that she had been experiencing difficult personal circumstances over the period leading up to her dismissal, although this does not excuse her conduct. I accept that the dismissal took a toll on Ms Raitt’s wellbeing and take this into consideration. I also take into account that, although the company had grounds to dismiss Ms Raitt summarily for serious misconduct, it paid her four weeks of notice.
Taking into account the matters in s 387, I consider that the dismissal was not harsh, unjust or unreasonable. The company had good and substantiated reasons to dismiss Ms Raitt. In the circumstances, it was not unfair of it to do so. Ms Raitt’s application is dismissed.
DEPUTY PRESIDENT
Appearances:
N. Raitt for herself
M. Cherry for G-Force Recruitment Ltd
Hearing details:
2023
Melbourne
18 April
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