Pham v Sommerville Retail Services Pty Ltd
[2016] FWC 2267
•12 May 2016
[2016] FWC 2267
DECISION
| Fair Work Act 2009 | |
| s.394—Unfair dismissal | |
| Hoa Thi Pham | |
| v | |
| Somerville Retail Services Pty Ltd | |
| (U2015/12461) | |
| COMMISSIONER LEE | MELBOURNE, 12 MAY 2016 |
Application for relief from unfair dismissal - whether valid reason for dismissal - whether
dismissal was harsh, unjust or unreasonable - Fair Work Act 2009 ss.387, 394.
[1] This matter involves an application made pursuant to section 394 of the Fair Work Act
2009 (Cth) (the Act) for unfair dismissal remedy. Ms Hoa Thi Pham (the Applicant) claims
that she was unfairly dismissed from her employment with Somerville Retail Services Pty Ltd
(the Respondent).
[2] The matter was listed for hearing before me on 3 and 4 February 2016. The Applicant
was represented by Ms Kennett of the Australasian Meat Industry Employees Union
(AMIEU). The Applicant gave evidence on her own behalf and an interpreter of the
Vietnamese language was provided to assist the Applicant for whom English is a second
language.
[3] The Respondent was represented by Mr McNab of Counsel. I granted permission to
Mr McNab to appear as I was satisfied that there was sufficient complexity in the matter such
that granting permission would enable the matter to be dealt with more efficiently. Mr
D’Intinosante the Senior Shift Supervisor, Mr Younger the Production Operations Manager,
Ms Soccio the Human Resources Manager and Mr Pike the Shift Supervisor gave evidence on
behalf of the Respondent.
[4] The application was made within the required statutory time period. It is apparent and
not in dispute that the Applicant is a person protected from unfair dismissal within the
meaning of the Act.
THE EVIDENCE
Background
[5] The Applicant was employed by the Respondent as a meat processing worker. The
Applicant commenced employment with the Respondent in 2005.
[2016] FWC 2267
i
| [6] | The Applicant was terminated on 13 October 2015. The letter of termination | refers to |
the various reasons for the termination. In summary, the reasons provided were as follows:
That the Applicant had made inappropriate and unwelcome personal and sexual
references to a number of co-workers in August 2015 and was given a written
warning in respect to this conduct on 11 August 2015.
On 10 October 2015, the Applicant refused to carry out a lawful instruction to work
in the cutting room on two occasions and that this refusal to follow instructions was
not an isolated event.
At a meeting convened on 13 October 2015 (the first meeting) to discuss the
Applicant’s alleged refusal to carry out the instruction to move to the cutting room
that the Applicant spoke over the supervisors telling them they were not telling the
truth and was also argumentative. The Applicant’s conduct was described as
“aggressive.”
At a second meeting convened on 13 October 2015, that the Applicant denied her
alleged behaviour in the first meeting. As this view was not shared by her
supervisors and owing to on-going complaints of unprofessional and unacceptable
conduct by supervisors, it was decided the situation had become untenable.
[7] The Applicant’s denial of the behaviour in August (the inappropriate sexual
references) and her complaints of bullying by one of the supervisors were rejected.
[8] The conclusion to the letter of termination is as follows:
“To that end and in taking into consideration your years of service at SRS, your
employment was terminated, based on your refusal to follow SRS policy and
procedure regarding:
1. Refusal to carry out a lawful instruction on 10 October 2015;
2. Your conduct in both meetings held on 13 October 2015;
3. Refusal to carry out a lawful instruction issued by your shift supervisor-Robert
Dintinosante on 19 July 2011; and
4. Unprofessional conduct and allegations of swearing, arguing and making
unwelcome sexual references in Vietnamese on 11 August 2015.”
[9] The Applicant received payment of four weeks’ pay in lieu of notice. The Applicant
submits that in all the circumstances the dismissal was unfair. The Respondent refutes that
claim.
The alleged conduct in 2011
[10] The letter of termination referred to a failure to abide by a direction in July 2011. This
alleged failure was the subject of a written warning issued by Mr D’Intinosante on 19 July
ii
2011. The warning reads:
“On 28 June you were directed to scan off and stop work. You refused to scan off
directly disobeying a supervisor’s direction on three occasions at 12.00pm, 12.10pm
[2016] FWC 2267and 12.35pm. You were asked to go home but refused. You were on WorkCover
reduced hours at the time and only permitted to work 8 and a half hours per day.
You refused a supervisor’s directions on 3 occasions.
You were in breach of your WorkCover restrictions to work no longer than 8.5 hours.
These are serious breaches of the company’s policies and will not be tolerated.”
[11] The Applicant did not sign the acknowledgement of the warning. The Applicant
provided a certificate of capacity dated 22 June 2011 which specified various work
iii
| restrictions and includes the text “Normal hours ok”. | In the context of such a certificate, it is |
not clear what normal hours would mean. In the absence of anything more, one could
reasonably assume that normal hours means the hours that the Applicant normally works.
However, Mr D’Intinosante was clear in the warning he issued that the Applicant could not
work more than 8.5 hours. It is not clear what Mr D’Intinosante based that assessment on as
the limitation of 8.5 hours is certainly not in the certificate of capacity. Mr D’Intinosante was
asked about the certificate and whether he took it into consideration. Mr D’Intinosante said
iv
he “…can’t remember that far back.”
Alleged unprofessional conduct and allegations of swearing, arguing and making
unwelcome sexual references in Vietnamese on 11 August 2015
[12] Mr D’Intinosante’s evidence is that in August 2015 he was approached by a number of
employees who worked with the Applicant who were upset and raising complaints in relation
to the way they had been spoken to by the Applicant. Mr D’Intinosante says the employees
told him that they had been sworn at and subjected to crude sexual insults in the Vietnamese
language and that one of the complainants was crying when explaining this to Mr
D’Intinosante. Mr D’Intinosante does not say how many employees he spoke with. When Mr
D’Intinosante raised the complaint with the Applicant she denied the allegations. The
Applicant suggested that Mr D’Intinosante look at the CCTV footage as it would show that
the workers were working with their backs to her and this would support her version of
events. Mr D’Intinosante in his statement said that he declined to watch the CCTV as he
v
| thought it “would not show the words and language used by her”. | On cross examination, Mr |
D’Intinosante said that the conduct occurred in the lunch room, not the factory and that there
was no CCTV footage of that area. Mr D’Intinosante provided evidence regarding his
investigative process of the matter:
| Ms Kennett: | “Can I take you then to paragraph 4 of your statement. You state |
| within there that a number of complaints have been raised by multiple | |
| workers in relation to the applicant. Did any of these complaints | |
| become formal complaints to you?” | |
| Mr D’Intinosante | “Yes, they did”. |
| Ms Kennett: | “Did you investigate them; can you tell the Commission the level of |
| investigation that you undertook?” | |
| Mr D’Intinosante | “I interviewed a couple of ladies that made the complaint and we dug |
| deeper and - that’s about the swearing?” | |
| Ms Kennett: | “Yes, correct?” |
| [2016] FWC 2267 | |
| Mr D’Intinosante: | “Yes. Yes, we just – I don’t understand Vietnamese but other ladies |
| came forward and explained to me what she was actually saying and”. | |
| Ms Kennett: | “Did you interview Ms Pham in relation to the complaint?” |
| Mr D’Intinosante: | “Yes, straight away.” |
[13] The Applicant issued a letter of response soon after to the company requesting that the
vi
| warning be withdrawn as it was untrue. | The letter indicated that the Applicant had witnesses |
who can “disconfirm” such allegations. The Applicant states that she did not receive a
response to this letter and that no statement was taken from her about her point of view in
relation to the events.
[14] Mr D’Intinosante also claims that there were at least 20 workers who refused to talk to
vii
| the Applicant because of the way that she had treated them. | When asked on cross |
examination if he had complaints from all of those workers he replied “not-no, I haven’t got
viii
| complaints but I got - we asked them. I didn’t put it on paper or anything”. | When asked |
why none of the women were present to give evidence Mr D’Intinosante replied “I couldn’t
ix
take everyone out of production”.
[15] Mr D’Intinosante said that when he tried to give the Applicant the warning on 11
x
| August 2015 the Applicant was aggressive and shouted at him. | The Applicant claims that it |
was she who approached Mr D’Intinosante to have the discussion and that he shouted at her
xi
| and made her scared. | In any case, it is clear that the Applicant did not accept the warning |
and would not sign the warning.
[16] Ms Soccio gave evidence that she did not investigate the circumstances surrounding
the warning at that stage, but did so after it was issued in light of the fact the Applicant
disputed it. It is not apparent that Ms Soccio sought out the witnesses referred to in the
Applicant’s letter who the Applicant claims could disconfirm the allegations. Ms Soccio
supplied her notes of her investigation which record the outcome of conversations with three
workers, all of whom made broadly similar claims about the Applicant making inappropriate
xii xiii
| sexual references. | Ms Soccio did not take a statement from the Applicant | nor discuss with |
the Applicant the allegations made by the other workers. Essentially, it appears Ms Soccio
interviewed the “few ladies who had made complaints” as indicated by Mr D’Intinosante,
recorded what they said and on that basis determined that the warning was warranted.
However, she did not discuss either the detailed claims made by the women or her
conclusions as to the investigation with the Applicant until 13 October 2015, the day the
xiv
| Applicant was dismissed. | Her reason for doing so was that she and the Applicant were on |
leave at various times during the intervening period and she did not know when the Applicant
xv
was returning to work.
[17] I note it is not clear from the evidence when on 13 October 2015 Ms Soccio had the
discussion with the Applicant about the outcome of the investigation. This series of events is
most unsatisfactory. Matters of this importance, ultimately relied on by the Respondent for a
dismissal in this matter should be dealt with more expeditiously. It is difficult to understand
how in her role as Human Resources Manager, Ms Soccio could not know when an employee
was returning from holidays. This explanation for the delay was not plausible.
[2016] FWC 2267
The alleged refusal to obey a direction on 10 October 2015
[18] Mr Pike gave evidence that on 10 October 2015, the Applicant attended for work and
started to set up within the packing room and that he then asked her to move to the cutting
room. In his statement, he claims that the Applicant refused saying “no” and said she wanted
to remain in the packing room. He informed her again that she was to move to the cutting
room and the Applicant did so. Later in the day, the Applicant returned to the packing room.
The Applicant was asked again by Mr Pike to return to the cutting room, however he states
that the Applicant indicated that she wanted to stay in the packing room and that “Jeff”
another Supervisor, had asked her to go to the packing room. Mr Pike again asked the
Applicant to go to the cutting room. The Applicant then left to go to a smoko break. It is not
disputed that the smoko break was at the scheduled time. After returning from her smoko
break, the Applicant left to go home as she felt sick.
[19] I sought to clarify during the hearing with Mr Pike if it was his evidence that the
Applicant had twice refused to follow his directions. Mr Pikes’ response was “I answer like
this, the second time when I asked her as she did say Jeff said to her - because I asked her
why she was in the packing room, and she said Jeff sent her back and I said to her “I need you
xvi
to go back” so probably the second time she didn’t refuse because she went home…”
However, on re-examination Mr Pike claimed that during the morning the Applicant twice
xvii
refused to move rooms before ultimately moving.
[20] The Applicant gave evidence that she was asked to move to the cutting room by Mr
Pike and that Mr Pike returned shortly after and observed she was still working there. He
asked why she was refusing to move and the Applicant claimed that she was not refusing to
move workstations, that she was either cleaning up her work area and/or removing a glove
and that she would then go to the cutting room. The Applicant denies that she refused to
move. Her evidence is that she did move to the cutting room after this second request, after
she had finished her clean up.
[21] After two hours the Applicant returned to the packing room at the request of Mr Jeff
Rice. The Applicant claims that Mr Pike was then aggressive asking why she was back there.
The Applicant informed Mr Pike that he was sent there by Mr Rice and that Mr Pike then
went and spoke to Mr Rice and asked her to go on a break and then return to the butcher’s
room. Mr Younger’s evidence is that he did not know if Mr Rice asked the Applicant to return
xviii
| to the packing room. | However, Mr Pike confirmed during the hearing that he established |
that Mr Pike had indeed sent the Applicant back to the packing room. The Applicant states
that she then felt unwell but did attend the cutting room for 20 minutes before going home.
The meetings of 13 October 2015
The first meeting
[22] Mr Pike was concerned enough about the Applicant’s behaviour on 10 October 2015
that he called his supervisor Mr D’Intinosante at home because “…he was having problems
with the Applicant…not following instructions”. Mr D’Intinosante advised him to talk to Mr
Younger in relation to the way she was behaving. Mr Pike spoke to Mr Younger and also to
xix
| Ms Soccio. As a result of those discussions he prepared a written warning | Mr Pike then |
arranged for Mr Younger and himself to meet with the Applicant to “…provide her with the
xx
| warning and to explain the warning to her.” | According to the Applicant, the meeting took |
| [2016] FWC 2267 |
place about three quarters of the time into her shift. Mr Younger did not know if the Applicant
xxi
was told about the meeting in advance or how much notice she was given.
[23] Mr Pike states that he began the meeting by speaking in relation to the warning and the
Applicant then started yelling and disputing what he had said. The Applicant would not
accept the warning and became loud, argumentative and aggressive. She was abusive to both
he and Mr Younger, calling them both liars and that this continued for approximately 20
minutes.
[24] Mr Younger’s evidence as to what happened at the meeting was broadly consistent
with that of Mr Pike, with the only real difference over whether the Applicant called both of
them or only Mr Pike a liar. Mr Younger couldn’t remember being called a liar. Irrespective,
Mr Younger said Mr Pike started to outline the issues in a calm and professional manner but
that the Applicant quickly became agitated. Mr Younger stated that the Applicant was loud,
aggressive, argumentative, rude and disrespectful. His attempts to calm the Applicant down
were unsuccessful. Ultimately, Mr Younger ended the meeting as he felt there was no point in
continuing given the behaviour of the Applicant. Both Mr Younger and Mr Pike were clearly
xxii
extremely concerned about the Applicants’ behaviour in the meeting.
[25] In contrast, the Applicant states that she told both Mr Younger and Mr Pike that she
had not refused a direction but had to clean up her work area and/or remove a glove and then
go to the cutting room. Importantly, the Applicant claims that she was not argumentative with
Mr Younger or Mr Pike and that she attempted to convey her point of view fairly and with
respect at all times. On cross examination, the Applicant maintained this evidence stating that
xxiii
| she was very calm. | She disputed that she shouted at Mr Younger and Mr Pike and that she |
called them liars. She stated, “I am just a worker, a small Vietnamese worker, how dare I
xxiv
| shout at my supervisor?” | During cross-examination, the Applicant also claimed that Mr |
Younger said to her that if she didn’t accept that she didn’t listen to his instructions that they
xxv
| would kick her out of the company. | The Applicant indicated that she was “scared” during |
xxvi
the meeting.
[26] It is evident that there was some confusion as to what the Applicant was being warned
about and Mr Pike was asked if he ensured that the Applicant understood all elements of the
situation consistent with the employee disciplinary policy. Mr Pike replied “I did let her know
what was going on and the situation and I think she knew at the start but what she was
confused about is she thought I was giving her a warning for the second incident but it wasn't,
it was for the first incident and I think that's where the lot of confusion's come along and that's
where - it wasn't about the second incident, it was about the first incident”.
The second meeting
[27] After the first meeting concluded, the Applicant returned to the workplace. Mr
Younger and Mr Pike then approached Ms Soccio, the Human Resources Manager, to discuss
the events which had occurred at the first meeting. Ms Soccio stated that she advised Mr
Younger that they needed to speak to the General Manager, David Palmer. None of the
Respondent’s witnesses gave evidence about what was discussed in the meeting with Mr
Palmer. A decision was then made to hold a further meeting regarding the Applicant’s
behaviour. This second meeting occurred some 45 minutes after the conclusion of the first
xxvii
| meeting. | The Applicant called her husband to attend this meeting and he did so. At the |
hearing, the Applicant stated that she also asked the Union to attend but they could not make
[2016] FWC 2267
it to the meeting. None of the Respondent’s witnesses were aware of the request the Applicant
made for the Union to attend the meeting. Ms Soccio claims that prior to the meeting she
asked the Applicant to wait in the reception area but that the Applicant left reception and went
to pack her things as she believed she was going to be terminated. Ms Soccio told the
xxviii
Applicant to not jump to conclusions.
[28] Shortly thereafter, the Applicant and her husband attended the second meeting. It is
not in dispute that the Applicant was upset and spent a good part of the meeting in tears. It is
also common ground that the Applicant maintained her position that she had not behaved
improperly at any time including during the meeting held earlier that day. The Applicant said
she was crying in the second meeting as she felt she has already been dismissed and that this
xxix
| had an impact on her ability to speak during the meeting. | Mr Younger said he couldn’t |
explain the considerable change in behaviour between the first and the second meeting. Mr
Younger was unaware of the Applicant’s claim that she had sought to have the Union present
at the meeting.
[29] Ms Soccio’s evidence is that the Applicant was informed that the Respondent was
proposing to terminate her employment “in light of her behaviour” and the Applicant was
given an opportunity to respond to this. The meeting was adjourned for 15 minutes and when
the Respondent’s representatives returned to the meeting the Applicant was informed that her
employment would be terminated. Mr Younger and Ms Soccio were adamant that the decision
to terminate the Applicant had not been made prior to the meeting.
Other relevant matters
[30] The Applicant claimed during the hearing that on 12 August 2015 Mr Younger called
xxx
| her to say that if there was a third warning she will be dismissed. | This appears to be the |
basis for the Applicant forming the view that if she accepted the third warning that she will be
dismissed. Mr Younger was asked if he told the Applicant on 12 August 2015 that she would
xxxi
be dismissed if she received any further warnings to which he replied “I can’t remember”.
[31] There was some controversy as to the Applicant’s fluency in English. Ms Soccio
described the Applicant as “quite fluent” in English. In her statement the Applicant indicates
that she is “…from Vietnam and do not speak good English”. The Applicant provided a
statement to the Fair Work Commission (the Commission) in English which she said she
xxxii
| understood “…with the help of my husband and my kids”. | She confirmed that she used |
English when communicating with her work supervisors and that they are able to make
themselves understood and vice versa. The Applicant agreed with Mr McNab that she spoke
xxxiii
with a Vietnamese accent and that her “voice was not the Queen’s English”.
Employee Counselling/Disciplinary Procedure Policy
[32] The Respondent’s Employee Counselling/Disciplinary Procedure Policy was tendered
xxxiv
| in the proceedings. | The procedure includes the following: |
“3.1 Counselling
The Manager/Supervisor/Coordinator/Line Supervisors will conduct informal
counselling meetings in private with the employee. On occasions, the
Manager/Supervisor/Coordinator/Line Supervisors or the employee may feel the
[2016] FWC 2267
meeting and objectives may be assisted by the involvement of the Human Resources
Manager in which case he/she will attend.
3.2 Disciplinary Warnings
On occasions, such counselling may not lead to improved and acceptable levels of
performance or conduct. In this circumstance, formal counselling meetings with the
potential of formal disciplinary action will commence. Formal counselling has the
same aims as informal counselling but is distinguished by the fact it may result in
formal disciplinary action and written warnings that may lead to termination of
employment.
The Human Resources Manager will attend any meeting in which it is anticipated that
formal disciplinary action may be an outcome. The Human Resources Manager, or an
alternative representative, may be present at disciplinary meetings. A witness or
support person of their choice may attend the meeting with the employee but that
person must not be an advocate for the employee.
Prior to any such meeting the employee will be formally advised of the reasons for the
meeting and that formal disciplinary action may be an outcome.
However, because often the seriousness of a matter only becomes apparent during a
meeting, it cannot be guaranteed that an employee would be pre-warned of the
possible outcome of a meeting. By the same token, an employee may be pre-warned
that disciplinary action may be an outcome but it is not because the discussion reveals
that such is not warranted in the circumstances.
If disciplinary action is seen as an appropriate outcome, the question of whether a first
(or second, third, etc), final written warning or termination of employment is
appropriate will be determined after full consideration of the facts, the seriousness of
the matter, the employee’s response to concerns and any other mitigating factors.
On occasion the nature of concerns with an employee’s conduct may, if substantiated,
amount to serious misconduct. In these cases the employee will be stood down on full
pay pending a thorough investigation of the concerns and a finding on the issue of
serious misconduct. An employee whilst stood down may be required to attend work
for an interview (s). SRS Pty Ltd will endeavour to complete an investigation as
quickly as is possible having regard to the need to give all parties and witnesses due
process.”
[33] Further, the policy provides for a two-step approach to disciplinary action, the first
step involves an initial disciplinary discussion where there is a discussion about the issues
relating to the employees performance or conduct. The second step is the point at which, if
the company deems further action is warranted, a subsequent meeting then should be held by
the Manager with the employee and it is during that meeting that the employee is to be
advised, among other things what disciplinary action is to be taken.
THE LAW TO BE APPLIED
[34] Section 385 of the Act sets out what constitutes an unfair dismissal:
[2016] FWC 2267
“Division 3—What is an unfair dismissal
385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal
Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code:
see section 388.
387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or
unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s
capacity or conduct (including its effect on the safety and welfare of other
employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason
related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a
support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—
whether the person had been warned about that unsatisfactory performance
before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to
impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management
specialists or expertise in the enterprise would be likely to impact on the
procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
[2016] FWC 2267
[35] With regard to s.385(a) of the Act; s.386 of the Act sets out the meaning of
“dismissed”. It is not in dispute that the Applicant was dismissed by the Respondent.
[36] With regard to s.385(c), as discussed above the Respondent was not a small business
at the time of dismissal, within the meaning of s.23 of the Act. Therefore, the application of
the Small Business Fair Dismissal Code is not relevant.
[37] With regard to s.385(d), there was no suggestion that the Applicant’s dismissal was a
case of genuine redundancy. Section 385(d) does not apply in this matter.
[38] The matter for determination is whether the dismissal was harsh, unjust or
unreasonable (s.385(b)).
CONSIDERATION
Was the dismissal harsh, unjust and unreasonable? (s. 385(b))
[39] As set out above, the criteria for considering whether a dismissal was harsh, unjust or
unreasonable is set out in s.387 of the Act.
Section 387(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).
The alleged conduct in 2011
[40] Mr D’Intinosante was clear in the warning he issued that the Applicant could not work
more than 8.5 hours per day and that is the basis for the directions that the Applicant sign off.
However, the Doctor’s certificate in evidence does not limit the Applicant’s hours of work to
8.5 hours but to “normal hours”. Mr D’Intinosante was asked about the certificate and
whether he took it into consideration. Mr D’Intinosante said he couldn’t remember that far
xxxv
back.
[41] I am satisfied that the direction to sign off was issued by Mr D’Intinosante and that the
Applicant refused the direction. I am not satisfied that the direction to sign off issued by Mr
D’Intinosante, albeit lawful, was a reasonable direction in light of the work capacity
certificate. Consequently, I am not satisfied that the alleged conduct in 2011 is a valid reason
for dismissal.
Alleged unprofessional conduct and allegations of swearing, arguing and making
unwelcome sexual references in Vietnamese on 11 August 2015
[42] To determine a valid reason relating to conduct, the Commission must determine
whether, on the balance of probabilities, the conduct allegedly engaged in by the employer
xxxvi
| actually occurred. | The test is not whether the employer believed on reasonable grounds, |
after sufficient inquiry, that the employee was guilty of the misconduct. The Commission
xxxvii
must make a finding as to whether the conduct occurred based on the evidence before it.
A recent Full Bench decision reaffirmed the requirement for the Commission to make
findings as to whether or not the alleged conduct occurred on the evidence before the
xxxviii
| Commission where critical facts are in dispute. | In that decision, the Full Bench found [2016] FWC 2267 |
that the Vice President was in error to rely on findings that the employer believed on
reasonable grounds that the employee was guilty of the conduct that resulted in the
termination.
[43] In this matter, I have the evidence of the Applicant who is strenuous in her denial that
she did not engage in the conduct as alleged. There is the evidence of Mr D’Intinosante who
spoke to a “couple of the ladies” and was satisfied that it did occur. I have the investigation of
Ms Soccio which appears to be a record of conversation with the three women who made the
complaints. It is not apparent the investigation of Ms Soccio included a discussion with the
persons who the Applicant advised in her letter could support her side of the story. No
statement from the Applicant was taken nor was she given the opportunity to respond to the
findings made by Ms Soccio. The findings of the investigation were apparently made known
to her on the day of the dismissal.
[44] In the circumstances, whether the employers’ belief that the Applicant was guilty of
the misconduct was reasonable is debatable. However, this is not the test as the authorities
make clear. I have sworn evidence from the Applicant disputing the allegations. However, not
one of the women who made the complaints gave evidence at the hearing. The investigation
was far from satisfactory. The recounting from Mr D’Intinosante of conversations he had with
the women and the notes of Ms Soccio cannot be relied upon as a basis for finding the
conduct occurred against the Applicant sworn denials. On balance, I cannot be satisfied that
the conduct did occur. It follows that this cannot form part of any valid reason for dismissal.
Other alleged complaints
[45] Mr D’Intinosante made vague allegations about “at least 20 workers who refused to
xxxix
| talk to the Applicant because of the way she treated them”. | None of these un-named |
women were called to give evidence. There is no basis to find that the Applicant engaged in
this other conduct as suggested in paragraph 8 of Mr D’Intinosante’s statement. Mr
D’Intinosante also made a general claim that his experience working with the Applicant is
that she is very argumentative and difficult to direct. No further evidence is provided in
support of this general claim. There is little evidence dealing with and other claims. It is
apparent from the letter of termination these matters were not relied on as a basis for the
termination of employment. Overall I consider the other complaints about the conduct of the
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applicant fall short of a sound a defensible reason.
The events of 10 October
[46] It is not in dispute that the Applicant was asked to move the cutting room on two
occasions by Mr Pike and that she understood the instruction to do so. It is also not in
contention that the request was both lawful and reasonable. The Applicant claims that she did
not refuse the direction, that she was either cleaning up and/or removing a glove. I found the
evidence of the Applicant on this point somewhat inconsistent and unconvincing. However,
there is some contention as to whether Mr Pike asked the Applicant three times to move
rooms, two of which she refused. During the hearing, Mr Pike was somewhat confused with
his evidence in terms of the number of directions given and refused. However, his witness
statement was clear that she refused once but then complied with the second request. This
version of events was consistent with the text of the written warning and also consistent with
xli
| Mr Pike’s answer to my questioning about whether the Applicant refused twice. | On |
| [2016] FWC 2267 |
balance, I think the evidence favours a finding that there was a single refusal in the first
instance by the Applicant of a lawful and reasonable direction to move to the cutting room.
The Applicants alleged behaviour in the meeting of 10 October
[47] The Applicant was adamant that she did not behave in the manner alleged in the first
meeting. However, her evidence on this point is completely at odds with the generally
consistent evidence of Mr Younger and Mr Pike. Both men were clearly taken aback by the
behaviour of the Applicant. Their testimony as to what happened at the meeting was
consistent and plausible and I prefer their version of what occurred in the meeting over that of
the Applicant.
Conclusion on valid reason
[48] Having regard to the consideration above, I am satisfied that the Applicant refused a
single direction to attend the cutting room on 10 October 2015. However, when asked a
second time, she complied with the direction. At the meeting on 13 October 2015 convened to
discuss the Applicant’s behaviour I am satisfied that the Applicant behaved in the manner
contended by the Respondent. I am not satisfied for the reasons set out that the Applicant is
guilty of the other allegations of misconduct.
xlii
| [49] | To be a valid reason for dismissal, it must be sound, defensible and well founded. | If |
the Respondent were to dismiss the Applicant solely for the reason of failing to comply with
the direction when first asked to move rooms then that would not meet that test. Indeed, it is
clear that the Respondent did not intend to dismiss the Applicant for that conduct but rather to
warn her. It is apparent that it was the response of the Applicant during that discussion about
the warning that the Respondent sought to issue, and the failure of the Applicant to
acknowledge her conduct in the first meeting, that led to the dismissal. I am satisfied that in
combination, the conduct of the Applicant in refusing the direction, her conduct in the first
meeting and importantly her refusal to make any concessions whatsoever about her behaviour
satisfy me that there was a valid reason for the dismissal.
Section 387(b) - whether the person was notified of that reason.
[50] Notification of the valid reason to terminate must be given to the employee before the
xliii xliv
| decision to terminate is made | and in explicit and plain and clear terms. | It was put to the |
Respondent’s witnesses that they had already made the decision to terminate the Applicant
before they attended the second meeting. All of the Respondent’s witnesses refuted that
suggestion. There is no evidence to suggest that the decision to terminate was made before the
second meeting commenced.
[51] In the first meeting, it is clear the Respondent intended to warn the Applicant rather
than terminate her. At the second meeting, the Applicant’s evidence is that she was told by Mr
Younger that as a result of her behaviour being unacceptable she would be terminated. The
xlv
Applicant’s representative accepts that the Applicant was notified of the reason.
[2016] FWC 2267
Section 387(c) - whether the person was given an opportunity to respond to any reason
related to the capacity or conduct of the person.
[52] The Applicant was given an opportunity to respond to the reason for the dismissal to
the extent that related to her behaviour at the first meeting. However, it is apparent that there
was some level of confusion at the first meeting as to exactly what the Applicant was
responding to as well as difficulties with the English language translation. While the
Applicant’s argumentative response at the first meeting is not excusable, there was confusion
about whether she was being warned about failure to abide by the second direction, despite
her returning to the packing room at the direction of Mr Rice. There was some controversy
about the Applicant’s fluency in English. While the Applicant conceded that her “voice was
not of the Queen’s English”, I note that if her Majesty is the benchmark then none in the
hearing room that day would reach it. I am satisfied that the Applicant was able to speak
English to a level where she was able to make herself understood and understand general
conversation in the work environment. Certainly it was clear enough that she understood the
instructions from Mr Pike to move to the cutting room. However, it is likely that English as a
second language played a part in contributing to the confusion in the first meeting as to
exactly what the Applicant was being warned about. I am satisfied that this factor and the fear
of the Applicant contributed to her response.
Section 387(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.
[53] There was no refusal to allow a support person. The Applicant’s husband was present
at the second meeting. The respondent was unaware of efforts the Applicant claims to have
made to have the Union present.
Section 387(e) - if the dismissal related to unsatisfactory performance by the person -
whether the person had been warned about that unsatisfactory performance before the
dismissal.
[54] While some references were made by the Respondent to the Applicant’s performance,
it does not appear that this was a consideration in the decision to dismiss the Applicant. This
is a neutral consideration.
Section 387(f) - the degree to which the size of the employer’s enterprise would be likely
to impact on procedures followed in effecting the dismissal and Section 387(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
[55] The Respondent is a medium size business and has a Human Resources Specialist. The
Respondent submits and I agree that the size of the Respondent’s enterprise did not have an
impact on the procedures followed in affecting the dismissal of the Applicant.
Section 387(h) - any other matters FWA considers relevant.
[56] The Respondent has an Employee Counselling/Disciplinary Procedure Policy.
However, the Respondent did not comply with this policy. The Applicant was given no
warning prior to the first meeting on 13 October, as required by the policy, that she was to be
[2016] FWC 2267
given a disciplinary warning. The Applicant had clearly formed the view that this meant she
had three warnings and was to be dismissed which contributed to her fears about what exactly
was happening.
[57] Furthermore, there was a failure on behalf of the Respondent to adhere to the two-step
process contemplated in the disciplinary policy. Had the process been followed, this may have
reduced the fear and confusion experienced by the Applicant in the first meeting and perhaps
the outcome could have been different. I consider the failure of the Respondent to follow the
policy is a relevant factor in the consideration.
[58] Also relevant is that the Applicant is a long serving employee of 10 years. She has two
dependent children. The evidence supports a finding that her work history has been
unblemished other than the events around the time of her dismissal.
Conclusion as to the nature of dismissal
[59] For the reasons set out above, I find that the Respondent did have a valid reason to
dismiss the Applicant from her employment. I do not think that the dismissal was unjust. I am
satisfied she was notified of the reason for the dismissal. Performance was not relied on as a
basis for dismissal. A support person attended the second meeting. There was a dedicated
Human Resources Specialist and the size of the enterprise did not have an impact on the
procedures followed.
[60] However, the dismissal was unreasonable as there were procedural flaws in affecting
the dismissal and there was not, in all the circumstances, a satisfactory opportunity for the
Applicant to respond. The dismissal was harsh, as the Applicant was a long serving employee
and other than the recent events had a good work record.
Remedy
[61] Having found that the dismissal was harsh and unreasonable, I must now turn to the
appropriate remedy to order.
[62] The relevant provisions of the Act pertaining to remedy are contained in s.390 of the
| Act: | ||||
| ||||
| payment of compensation to a person, if: |
(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) The FWC may make the order only if the person has made an application under section 394.
(3) The FWC must not order the payment of compensation to the person unless:
[2016] FWC 2267
(a) the FWC is satisfied that reinstatement of the person is inappropriate; and (b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.
Note: Division 5 deals with procedural matters such as applications for remedies.”
[63] It is also necessary to consider the Objects of Part 3-2 of the Act especially s.381(c) of
the Act which provides that an object of that Part of the Act is to provide remedies if a
dismissal is found to be unfair, with an emphasis on reinstatement.
[64] The presumption in the legislation is that, should a dismissal be found to be unfair,
that reinstatement is the primary remedy and that compensation is a secondary consideration
if reinstatement is not appropriate.
[65] In this matter, the Applicant does not seek reinstatement. The Applicant submitted that
while reinstatement was sought at the time of the hearing it is no longer sought as the
Applicant has secured further employment. The Respondent opposes reinstatement. In the
circumstances I do not consider reinstatement to be an appropriate remedy.
[66] Having determined that reinstatement is not appropriate I must consider what
compensation, if any, is payable, in lieu of reinstatement.
[67] The Act provides for compensation as a remedy for unfair dismissal.
“392 Remedy—compensation
Compensation
(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in
lieu of reinstatement.
Criteria for deciding amounts
(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:
(a) the effect of the order on the viability of the employer’s enterprise; and (b) the length of the person’s service with the employer; and (c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
[2016] FWC 2267
(e) 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; and
(f) 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; and
(g) any other matter that the FWC considers relevant.
Misconduct reduces amount
(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would
otherwise order under subsection (1) by an appropriate amount on account of the
misconduct.
Shock, distress etc. disregarded
(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or
humiliation, or other analogous hurt, caused to the person by the manner of the
person’s dismissal.
Compensation cap
(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:
(a) the amount worked out under subsection (6); and (b) half the amount of the high income threshold immediately before the dismissal.
Note: subsection 392(5) indexed to $68,350 from 1 July 2016
(6) The amount is the total of the following amounts:
(a) the total amount of remuneration: (i) received by the person; or
(ii) to which the person was entitled;
(whichever is higher) for any period of employment with the employer during
the 26 weeks immediately before the dismissal; and
(b) if the employee was on leave without pay or without full pay while so
employed during any part of that period—the amount of remuneration taken to
[2016] FWC 2267
have been received by the employee for the period of leave in accordance with
the regulations.”
“393 Monetary orders may be in instalments To avoid doubt, an order by the FWC under subsection 391(3) or 392(1) may permit
the employer concerned to pay the amount required in instalments specified in the
order.”
[68] In determining the amount of compensation to be awarded, if any, I must have regard
to all the circumstances of the case including each of the paragraphs in s.392(2) of the Act as
xlvi
set out above. No one matter is paramount but regard must still be had to each of them.
[69] The general approach to the calculation of compensation was well set out by the Full
xlvii
| Bench in Tabro Meat Pty Ltd v Kevin Heffernan | and I will follow that approach in |
| determining this matter. |
Section 392(2)(c) - the remuneration that the person would have received or would have
been likely to receive, if the person had not been dismissed.
[70] The Applicant’s remuneration at the time she was dismissed was $42,048.76 plus
xlviii
| 9.5% superannuation. | I will use this amount as the basis for calculating the amount of |
compensation to be awarded in this case.
[71] The Applicant submitted that there is no reason to believe that, had the Applicant not
been terminated on 13 October 2015, the Applicant would not have continued in her
employment with the Respondent. The Respondent submits that the employment was unlikely
to have continued for any significant period having regard to the attitude of the Applicant to
her supervisors and her fellow workers and the previous warnings issued. In light of my
findings as to the Applicant’s misconduct and her lack of insight into her behaviour, I think it
unlikely that the Applicant would have continued in employment for any significant period
had she not been dismissed. I have determined that the Applicant would have been employed
were it not for the dismissal for a further 10 weeks.
[72] Accordingly, I calculate the remuneration that the Applicant would have received or
would have been likely to receive, if her employment had not been terminated, at $8,086.30
plus 9. 5% superannuation.
Section 392(2)(e) - 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 and s.392(2)(f) - 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
[73] In the circumstances of this matter, subsections 392(2)(e) and 392(2)(f) can be dealt
with together. The Applicant gave evidence that she had been unemployed from the time of
the dismissal up until the time of the hearing in February 2016.
[2016] FWC 2267
[74] At the time she was dismissed, the Applicant was paid four weeks in lieu of notice in
the amount of $3,234.52. There is no evidence that the Applicant earned any other
remuneration during the relevant period.
xlix,
| [75] | In Ellawalla v Australian Postal Corporation | with respect to a precursor provision, |
the Full Bench stated that “[o]nly monies earned during the period from termination until the
end of the anticipated period of employment are deducted”.
[76] The anticipated period of employment was 10 weeks. The monies earned during that
period are the $3,234.52 paid in lieu of notice. Deducting this amount from the provisional
amount of compensation of $8,086.30 leaves an amount of $4,851.78 plus 9.5%
superannuation less tax.
Section 392(2)(g) - any other matter that FWA considers relevant
l
| [77] | Ordinarily a deduction for contingencies is appropriate. | However, contingencies only |
li
| apply to the anticipated period of employment. | The anticipated period of employment had |
concluded prior to the hearing taking place in this matter. A deduction for contingencies is not
appropriate.
[78] There are no other matters that are relevant to the determination of compensation other
than ss.392(2)(a),(b) and (d), 392(3) and 392(5) of the Act. I will turn to those factors now.
Section 392(2)(a) - the effect of the order on the viability of the employer’s enterprise
[79] Evidence should be produced in order for the Commission to properly consider this
lii
issue.
[80] There was no submission that any order would impact on the viability of the
Respondent’s enterprise and I make no deduction on that basis.
Section 392(2)(b) - the length of the persons service with the employer
[81] The Applicant was employed by the Respondent for approximately 10 years. This is a
significant period of service and does not warrant a further deduction.
Section 392(2)(d) - the efforts of the person (if any) to mitigate the loss suffered by the
person because of the dismissal
[82] Evidence was provided by the Applicant as to the efforts she went to in the period
after the dismissal to secure alternative employment. Her evidence was that she applied for a
job on 14 October 2015 and received a rejection of that application on 16 October 2015. The
Applicant gave evidence that she had applied for four or five jobs since she was dismissed.
The Applicant had not made a job application since 14 December 2015 because she said she
was busy with these proceedings and wanted to wait for these proceedings to conclude before
liii
making further applications.
[83] I am not satisfied that the Applicant was making any significant effort to mitigate the
loss from 14 December 2015. However, the Applicant did apply for a number of jobs prior to
this time and she did undertake some induction training on 5 January 2016 but was
[2016] FWC 2267
unsuccessful in securing employment with that employer. Overall, I consider that the lack of
effort of the Applicant to mitigate the loss warrants a further deduction of 10%. Deducting
this amount from the provisional amount of compensation of $4,851.78 leaves an amount of
$4,366.60 plus 9.5% superannuation less tax.
Misconduct (s.392(3))
[84] I have found that the Applicant was dismissed for a valid reason related to misconduct.
The Respondent’s representative submitted that the deduction for misconduct should be
significant due to the nature of the misconduct. The Applicant’s representative submitted in
her closing submissions that the Applicant recognised the level of concern raised by the
Respondent in relation to her conduct at work and that the Applicant be paid compensation
with a reduction to recognise the impact of the events of October 2015 on the Respondent,
without an admission of liability. The Applicant submits that an appropriate reduction would
be in the range of 10-15%.
[85] Having regard to the proven misconduct of the Applicant, I have determined to reduce
the compensation amount by a further 15%. This leaves an amount of $3,711.61.
Compensation Cap (s.392(5))
[86] The compensation cap is set in section 392(5) of the Act. The amount ordered to be
paid by the Commission must not exceed the lesser of:
the total amount of remuneration either received by the person, or to which the
person is entitled, for any period of employment with the employer during the 26
weeks immediately before the dismissal, and
half the amount of the high income threshold immediately before the dismissal.
[87] The amount of compensation under consideration is considerably less than the relevant
compensation cap in this case, being the amount of remuneration to which the person is
entitled for the 26 weeks before the dismissal.
Conclusion and order as to remedy
[88] I find that reinstatement is not an appropriate remedy in this case.
[89] I find that an order for compensation is appropriate.
[90] I am satisfied that an order for payment of compensation by the Respondent of
$3,711.61 plus 9.5% superannuation less tax as required by law, to the Applicant in lieu of
reinstatement is appropriate in all the circumstances of the case. It accords a fair go all round
to both the Respondent and the Applicant.
[2016] FWC 2267
[91] The compensation payment, less any required deduction in taxation, is to be made
within 14 days of this decision. An order will be issued concurrently with this decision.
| COMMISSIONER |
| Appearances: |
| Ms Kennett of The Australasian Meat Industry Employees Union for the Applicant |
| Mr McNab of Counsel for the Respondent |
| Hearing details: |
| 2016. |
| Melbourne. |
| February 4. |
| 2016. |
| Melbourne. |
| February 3. |
| Final written submissions: |
| 3 March 2016. |
| Printed by authority of the Commonwealth Government Printer |
| <Price code C, PR578932> |
| xi |
PN211
xii
Exhibit M3, Statement of Chiara Soccio, Attachment CS1
xiii
PN611
xiv
PN577
xv
PN578
xvi
PN922
xvii
PN789, PN934
xviii
PN492
xix
Exhibit K1, Statement of Hoa Thi Pham, Attachment HTP-8
xx
Exhibit M4, Statement of Kevin Edwin Pike, [10]
xxi
PN422
xxii
Exhibit M4, Statement of Kevin Edwin Pike, [11], Exhibit M2, Statement of Shane William Younger, [4]
xxiii
PN73, PN79
xxiv
PN77
xxv
PN92
xxvi
PN124
xxvii
PN496
xxviii
Exhibit M3, Statement of Chiara Soccio, [13]
xxix
PN320
xxx
PN253
xxxi
PN415
xxxii
PN39
xxxiii
PN50
xxxiv
Exhibit K2, Employee Counselling/Disciplinary Procedure Policy
xxxv
PN366
xxxvi
Edwards v Giudice (1999) 94 FCR 561 [6]‒[7]. See also Rail Corporation New South Wales v Vrettos (2008) 176 IR 129
[27]; Container Terminals Australia Ltd v Toby (unreported, AIRCFB, Boulton J, Marsh SDP, Jones C, 24 July 2000)
Print S8434 [13]
xxxvii
King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) Print
S4213 [24]
xxxviii
Singh v Metro T/A Metro Trains Melbourne [2015] FWCFB 6711
xxxix
Exhibit M1, Statement of Robert D’Intinosante, [8]
xl
Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373
xli
PN922
xlii
Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373
xliii
Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151 [70]‒[73]
xliv
Previsic v Australian Quarantine Inspection Services (unreported, AIRC, Holmes C, 6 October 1998) Print Q3730
xlv
Applicant’s Outline of Submissions filed 14 December 2015 [15]
xlvi
Tempo Services Limited v T.M. Klooger and Others, PR953337, [22]
xlvii
[2011] FWAFB 1080.
xlviii
Exhibit K1, Statement of Hoa Thi Pham, Attachment HTP-9
xlix
Ellawalla v Australian Postal Corporation, Print S5109
l
Slifka v J W Sanders Pty Limited (1995) 67 IR 316 [328]
li
Enhance Systems Pty Ltd v Cox (unreported, AIRCFB, Williams SDP, Acton SDP, Gay C, 31 October 2001) PR910779
[39]; citing Ellawala v Australian Postal Corporation (unreported AIRC, Ross VP, Williams SDP, Gay C, 17 April
2000) Print S5109 [43]
lii
D.A. Moore v Highpace Pty Ltd (unreported, AIRCFB, Boulton J, Watson SDP, Whelan C, 18 May 1998) Print Q0871
liii
PN305
i
Exhibit K1, Statement of Hoa Thi Pham, Attachment HTP-5
ii
Exhibit K1, Statement of Hoa Thi Pham, Attachment HTP-1
iii
Exhibit K1, Statement of Hoa Thi Pham, Attachment HTP-2
iv
PN366
v
Exhibit M1, Statement of Robert D’Intinosante, [5]
vi
Exhibit K1, Statement of Hoa Thi Pham, Attachment HTP-6
vii
Exhibit M1, Statement of Robert D’Intinosante, [8]
viii
PN387
ix
PN389
x
Exhibit M1, Statement of Robert D’Intinosante, [7]
0
8
0