Puti Walker v Bow Tie Removals and Storage Pty Ltd

[2012] FWA 2851

[2012] FWA 2851

FAIR WORK AUSTRALIA

DECISION

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

Puti Walker
v
Bow Tie Removals and Storage Pty Ltd
(U2011/13556)

COMMISSIONER MCKENNA SYDNEY, 5 APRIL 2012

Application for unfair dismissal remedy - small business - application dismissed.

[1] Puti Walker (“the applicant”) has made an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (“the Act”) alleging that her dismissal by Bow Tie Removals and Storage Pty Ltd (“the respondent”) was harsh, unjust and unreasonable.

[2] The respondent is a small business involved in removals and storage. The applicant was formerly employed by the respondent in an administrative capacity including finance manager responsibilities, during the period 7 August 2009 until 31 October 2011. There was no evidence that there had been any issues concerning the applicant’s employment until certain events in October 2011, which resulted in the applicant’s summary dismissal.

[3] The circumstances preceding the dismissal commenced in mid-October 2011. On 16 October 2011, the applicant, who resides in Sydney, received short notice that her sister was intending to get married in Perth on 28 October 2011. On 18 October 2011, the applicant made arrangements with her son to make airline bookings for the purpose of travelling from Sydney to Perth to attend the wedding. The outgoing flight from Sydney was booked for Wednesday, 26 October 2011 and the return flight was booked for Sunday, 30 October 2011. Although the applicant had accumulated annual leave credits, she did not seek approval from the respondent for leave before making the airline bookings. The applicant did not otherwise inform the respondent about any matters relevant to her intended absence from work in connection with attending the wedding. The applicant’s evidence indicated she had intended to seek approval for leave, but forgot to do so. The applicant explained in her evidence she considered that if she had asked for leave to attend the wedding in Perth it would have been granted, as she considered her employer to be reasonable about such matters.

[4] The applicant then received advice on 20 October 2011, after the flights had been booked, that the wedding had been cancelled. The applicant did not make any arrangements to cancel the airline bookings. The applicant was concerned she would lose the costs of the airline tickets if she did not use them, as she was of the understanding that the costs were not refundable.

[5] At about 4.30pm on 25 October 2011, the eve of the scheduled departure date for the flight to Perth, the applicant visited a medical practitioner. The applicant obtained a medical certificate certifying she would be unfit for her normal duties for three days on and from Wednesday, 26 October 2011 (the date on the medical certificate of Friday, 21 October 2011 is a typographical error; the certificate presumably should have read Friday, 28 October 2011). The medical certificate indicated the applicant would be fit for normal duty on Monday, 31 October 2011. While the medical certificate did not give any particulars as to why the applicant was unfit for work, the applicant’s evidence in the proceedings indicated she had consulted the medical practitioner about a swollen/infected leg, as well as diabetes for which she had already consulted the medical practitioner. The dates on the medical certificate covered the same working dates the applicant had planned to be away from Sydney in connection with her attendance at the by-then cancelled wedding in Perth.

[6] The applicant’s evidence was that it was “later that night” on 25 October 2011 after she had visited the medical practitioner and attended to miscellaneous matters such as filling a prescription, that she decided to catch the 6.00am flight to Perth the following morning having realised she could use the airline tickets.

[7] On Wednesday, 26 October 2011 Paul Leabeater, the principal of the respondent company arrived at work at approximately 6.00am and checked the message machine. The applicant had left the following message: “Paul I won’t be in today - I’m sick. My son will drop off a medical certificate at 7am.” The applicant departed from Sydney on a flight to Perth on that same morning of 26 October 2011. The applicant’s son duly delivered the medical certificate at about 7.00am, having earlier driven the applicant to Sydney Airport for her flight to Perth.

[8] The applicant considered it appropriate to continue with her travel plans and, under cover of a medical certificate for the dates in question, to recuperate in Perth where she would be tended to by family members.

[9] Unbeknownst to the applicant, Mr Leabeater had been aware the applicant had booked flights to Perth without any advice to him or application for any form of approved leave of absence in advance of making the bookings. The applicant had used a shared workplace printer to print her airline tickets for the flights; by happenstance, Mr Leabeater had, about a week earlier, seen the applicant’s airline tickets on the workplace printer before the applicant retrieved them. The applicant apparently was not aware Mr Leabeater had seen her airline tickets on the printer and Mr Leabeater chose, at the time, not to raise the matter with the applicant for reasons including his belief the applicant would discuss matters if she was seeking to have time off work.

[10] As the dates for the flights and the dates on the medical certificate coincided, Mr Leabeater suspected the applicant had decided a week prior to obtaining the medical certificate, when booking the flights, to be absent from work and in Perth. Mr Leabeater reviewed the applicant’s emails on the workplace computer, including deleted emails, but there was nothing relevant to the travel to Perth. Mr Leabeater asked the respondent’s IT support company to review the hard drive of the computer. That review revealed a series of “permanently” deleted emails between the applicant and her son on 18 October 2011 relevant to the applicant’s trip to Perth. In the proceedings, these permanently deleted emails were referred to as the “double-deleted” emails, as opposed to standard deletions. In the double-deleted emails, the applicant, among other matters, asked her son to use her private Hotmail account for the emails about the trip and remonstrated with her son for sending trip-related emails to the work email address. An examination of the emails showed a large number of almost daily communications between the applicant and her son, but those emails had not been double-deleted. Mr Leabeater decided to put all these matters to the applicant upon her return to work.

[11] When the applicant arrived at work on Monday, 31 October 2011, Mr Leabeater advised the applicant that he wanted to speak to her about the sick leave absence and the trip to Perth. Mr Leabeater asked the applicant if she wanted a support person present and she availed herself of that opportunity.

[12] A comparatively short discussion ensued between Mr Leabeater and the applicant concerning matters including whether she had been genuinely ill, the printed airline tickets, the failure to seek leave for travel to Perth, forfeiting airline ticket costs, the medical certificate and the applicant’s infected leg, and the double-deleted emails that were retrieved from the hard drive. The applicant asserted she was aware that Mr Leabeater had seen the airline tickets, which, to Mr Leabeater, compounded matters further. The applicant also invited Mr Leabeater to contact her medical practitioner, but Mr Leabeater determined not to do so given what he expected would be doctor/patient confidentiality. Mr Leabeater also considered that he could not argue with a medical certificate. Mr Leabeater deposed that, among other comments, he stated to the applicant:

“There’s nothing you’ve said that seems plausible. You had organised it in advance, didn’t ask for annual leave and just took sick leave to do it. There’s nothing you’ve told me today that makes me think differently about this. You’ve breached the trust I have in you and your duty of good faith and fidelity to the company.”

[13] Mr Leabeater summarily dismissed the applicant, and considered he had cause to do so. In his evidence, Mr Leabeater said he considered that the applicant had acted deceitfully and he could not trust her any more. Mr Leabeater did not challenge the medical certificate. Mr Leabeater indicated in his evidence that would not have been concerned if the applicant had been in Sydney under cover of a medical certificate. His primary concerns focussed on the applicant’s failure to apply for annual leave on the dates on which she went Perth and the double-deleted emails concerning the trip. It seemed to Mr Leabeater that the applicant’s “story just didn’t stack up”.

CONSIDERATION

[14] Section 385 of the Act provides that a person has been unfairly dismissed if Fair Work Australia is satisfied as to the following matters: the person has been dismissed; the dismissal was harsh, unjust or unreasonable; the dismissal was not consistent with the Small Business Fair Dismissal Code (“the Code”) and the dismissal was not a case of genuine redundancy. Here, the respondent contended that the decision to summarily dismiss the applicant was consistent with the Code. Section 396 of the Act further requires that a number of matters must be decided before considering the merits of the application, relevantly including at s.396(c) whether the dismissal was consistent with the Code.

[15] It was common ground the respondent is a small business. As to this, the Code provides as follows:

“Summary Dismissal

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

Other dismissal

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

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

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

Procedural matters

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

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

[16] The applicant’s submissions contended in part that the dismissal was not consistent with the Code, as the applicant’s conduct was not sufficiently serious to justify summary dismissal - particularly when considered in the context of the matters described in reg.1.07 of the Fair Work Regulations 2009. The respondent contended the dismissal was not harsh, unjust or unreasonable and that the dismissal was Code-compliant given that the applicant’s conduct amounted to serious misconduct within the meaning of reg.1.07 in that the applicant had engaged in wilful or deliberate behaviour that was inconsistent with the continuation of the contract of employment.

[17] On a consideration of the evidence and submissions, it seems to me that the applicant had charted a course to take a trip to Perth one way or the other. Unfortunately for the applicant, as it transpired, Mr Leabeater was aware of the airline tickets for the applicant’s flight to Perth from the time he saw them on the workplace printer; the medical certificate would otherwise have been accepted on face value. The applicant did not at any stage before or after booking the airline tickets seek either paid or unpaid leave from the respondent for the purpose of travelling to Perth, asserting in the proceedings that she forgot to make any such application to Mr Leabeater notwithstanding the proximity of their work desks.

[18] At about 4.15pm on the day before the flight to Perth was scheduled to depart, the applicant informed Mr Leabeater she had to leave work early to attend a medical appointment. Having next obtained a medical certificate which covered the working days that correlated with the applicant’s travel bookings, the applicant asserted in the proceedings that it was only later that same night she decided to fly from Sydney to Perth at 6.00am the following morning. The applicant had a swollen/infected leg and she determined to travel to Perth, and departed from Sydney on a flight early on the morning of 26 October 2011. The applicant did not inform the respondent she was travelling to Perth for the duration of her sick leave on the working days that were the subject of the medical certificate.

[19] On arriving at work on 26 October 2011, Mr Leabeater found a message from the applicant indicating she was sick, that she would not be attending work that day, and that her son would be attending the workplace at 7.00am to deliver her medical certificate. The applicant’s son attended the workplace with a medical certificate covering the same working days that Mr Leabeater had observed on the airline tickets. Mr Leabeater subsequently examined the applicant’s emails on the workplace computer and also had the hard drive examined. The examination of the hard drive showed the double-deleted emails about the trip to Perth and the applicant’s admonishment to her son for using the work email address rather than her Hotmail account concerning the trip details, although other emails between the applicant and her son had not been double-deleted.

[20] When the applicant returned to work on 31 October 2011, Mr Leabeater informed the applicant that he wanted to discuss matters with her and asked if she wanted a support person present during the discussions. Mr Leabeater succinctly put a number of matters to the applicant and, having given the applicant the opportunity to be heard in relation to those matters, considered her responses to be implausible.

[21] I have considered the examples of serious misconduct described in the Regulations. I have also considered the cases to which reference was made in the parties’ submissions concerning medically-certified absences from work and the applicant’s submissions that the respondent did not sufficiently investigate the sick leave and the medical certificate. I note, however, there was no challenge to the medical certificate in the respondent’s case nor challenge that the applicant had an infected leg. As Mr Leabeater said in his evidence, he could not argue with the medical certificate; his decision to dismiss the applicant turned on other considerations.

[22] The respondent’s submissions critiqued matters relevant to the events in question and I considered those submissions to be uniformly persuasive. The matrix of circumstances described in those parts of the evidence that were common ground, together with the deconstruction of many of the applicant’s explanations of her conduct under close cross-examination, lead me to conclude it was, considered in the context of the Code, fair for the respondent to dismiss the applicant without notice or warning in circumstances where Mr Leabeater believed, on what I am satisfied were reasonable grounds - going fundamentally to good faith, fidelity and trust - that the applicant’s conduct was sufficiently serious to justify immediate dismissal.

[23] I have concluded the dismissal was consistent with the Code and that the termination of employment was not, therefore, an unfair dismissal. Given the authority of the recent decision of the Full Bench in John Pinawin T/A RoseVi.Hair.Face.Body v Edwin Domingo[2012] FWAFB 1359 as to the operation of the Code in relation to unfair dismissal applications involving small businesses, it is unnecessary to further consider other elements as to unfair dismissal. I have concluded the respondent’s dismissal of the applicant was not unfair as it was consistent with the Code.

[24] As such, an order dismissing the application has been issued in conjunction with the publication of this decision.

COMMISSIONER

Appearances:

L. Tchoulak, solicitor, for the applicant.

A Jones, agent, for the respondent.

Hearing details:

2012.
Sydney:
March 7.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR522003>