Rebecca Fleming v Glenelg Auction Centre T/A Glenelg Auction Centre Pty Ltd

[2015] FWC 5655

[2015] FWC 5655

FAIR WORK COMMISSION

DECISION

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

Rebecca Fleming
v
Glenelg Auction Centre T/A Glenelg Auction Centre Pty Ltd
(U2015/7440)

DEPUTY PRESIDENT HAMILTON MELBOURNE, 28 AUGUST 2015

Application for relief from unfair dismissal.

[1] On 7 May 2015 Ms.Rebecca Fleming lodged and unfair dismissal application pursuant to s.394 of the Fair Work Act 2009 (‘the Act’) against Glenelg Auction Centre. It was not in contention and was agreed that the various jurisdictional requirements were met, and that Ms.Fleming was a person protected against unfair dismissal and other requirements. It was agreed that the matter be conducted by way of conference 1.

[2] There was some debate about the name of the employer, but it was clear that this was the trading name that included the legal person Westlink International and others that conducted the business 2. This was agreed during proceedings.

[3] It was also agreed that this was a small business 3.

[4] The question arose of whether or not there was a termination of employment. It appears that a senior person in the business, also the partner of the director, terminated Ms.Fleming’s employment by text dated Sunday 20 April 2015:

‘Rebecca it appears to me that you have not worked for me as I would have thought. You have refused to do quick books for us and therefore I have no option other than to give you reasonable notice to leave our employment within 2 weeks. Brian O’Halloran.’ 4

[5] This termination may not have been intended by others in the business, but it was done by a senior person with authority to do so, and it was agreed during proceedings that this was a termination. Quite properly attempts were made to discuss Ms.Fleming’s return to work, but these discussions failed.

[6] It was agreed that the business did not comply with the Small Business Code. This was not a summary dismissal but one with notice. It was agreed that the employer did not give the employee the warning verbally or in writing that he or she risks being dismissed if there is no improvement 5.

[7] The question then arose of whether or not the requirements of s.387 were met.

[8] Section 387 provides:

‘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’.

s.387(a) – Valid reason

[9] The term ‘valid reason’ was considered by Northrop J in Selvachandran v. Petron Plastics Pty Ltd 6, in relation to s.170DE of the Industrial Relations Act 1988. He said:

“Section 170DE(1) refers to a ‘valid reason, or valid reasons’, but the Act does not give a meaning to those phrases or the adjective ‘valid’. A reference to dictionaries shows that the word ‘valid’ has a number of different meanings depending on the context in which it is used. In the Shorter Oxford Dictionary, the relevant meaning given is ‘2. Of an argument, assertion, objection, etc; well founded and applicable, sound, defensible: Effective, having some force, pertinency, or value.’ In the Macquarie Dictionary the relevant meaning is ‘sound, just or well founded; a valid reason.’

In its context in s. 170DE(1), the adjective ‘valid’ should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s170DE(1). At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘be applied in a practical, commonsense way to ensure that’ the employer and employee are each treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd (1995) 60 IR 1, when considering the construction and application of a s170DC.”

[10] In this case Ms.Fleming refused to comply with the employer’s directions as to the application of the Goods and Services Tax (GST) with respect to retail sales. She considered that the method she applied was the correct one, and that the method she was directed to apply was not 7. However, these are matters that are generally speaking for the employer to determine, and the applicant did not claim to have any special expertise in tax matters. In fact she was gradually learning how to do data entry on Quickbooks. Ms.Fleming should have complied with the employer directions, and it is agreed that she failed to do so. This is a breach of a reasonable and lawful employer direction and is a valid reason for termination of employment. In any event the method directed by the employer appears to be consistent or arguably consistent with for example that suggested as ‘typically’ applied by businesses in the CCH Master Tax Guide:

‘Liability for GST arises where a registered business makes supplies to its customers. The GST is imposed at the rate of 10%. Typically, it is included in the price paid by the recipient of the goods and services. The supplier must account for the amount of GST to the ATO.’ 8

[11] A number of other complaints were made about Ms.Fleming’s conduct including lateness for work and texting while at work. I am not satisfied on the limited evidence before me that these were substantiated.

Section 387(b) – notified of that reason

[12] Ms.Fleming was notified in the termination text that ‘You have refused to do quickbooks’. This is a reference to her failure to enter data as required by the employer. She was notified of that valid reason.

Section 387(c) - opportunity to respond

[13] Ms.Fleming was not given an opportunity to respond. The termination with notice was immediate, before discussion took place on the merits or otherwise of the termination.

Section 387(d) – support person

[14] Ms.Fleming did not request a support person 9.

Section 387(e) – warnings about unsatisfactory performance

[15] The employer agreed that Ms.Fleming was not warned 10.

Section 387(f)(g) – small business, lack of specialist human resource manager

[16] This is a very small business, and there is no specialist human resource manager 11. To some extent this accounts for the manner in which the termination was effected.

Section 387(h) - other

[17] Ms.Fleming was ‘shocked’ to suddenly receive a text terminating her employment, and was unaware of being at risk of dismissal 12. This counts against the employer. The termination had an adverse effect on Ms.Fleming, including because of a drop in income. In addition, the termination was not intended by all in the business and was a mistake which the Director then attempted to rectify, but was unsuccessful in her endeavours13. The mistake was made because the manager who sent the text was ill and stressed, and this is a small business without human resource specialists or expertise. This again reflects the lack of specialist human resource managers, and the fact that those running the business had to perform all functions.

Conclusion

[18] I have taken into account all submissions and evidence. In my view the dismissal was not harsh, unjust or unreasonable. Despite some shortcomings on the part of the employer, there was a valid reason for termination of employment, and overall Ms.Fleming was afforded a fair go all round. An order dismissing the application is contained in PR571332.

DEPUTY PRESIDENT

Appearances:

Ms Rebecca Fleming, the applicant

Ms Yu Xia Wang from the respondent

Hearing details:

2015

14 August

Warrnambool

 1   PN21-24.

 2   Exhibit F1, Attachment RF 4, Employment Separate Certificate, answer to question 8 Employer details mentions the trading name Glenelg Auction Centre. PN103.

 3   PN31.

 4   Exhibit F1, Attachment RF1.

 5   PN162-182, 187-189.

 6 (1995) 62 IR 371

 7   PN328-334, PN519-555.

 8   Australian Master Tax Guide 2004, paragraph 34-010.

 9   PN264.

 10   PN269.

 11   PN276.

 12   Exhibit F1, paragraph 11.

 13   PN283-287.

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