Samantha Miller v East Kimberley CDEP Pty Ltd

[2012] FWA 8499

[2012] FWA 8499

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Samantha Miller
v
East Kimberley CDEP Pty Ltd
(U2012/3795)

DEPUTY PRESIDENT MCCARTHY PERTH, 3 OCTOBER 2012

Termination of employment.

Background

[1] Mrs Samantha Miller (the Applicant) was employed by East Kimberley CDEP Pty Ltd (the Respondent). The Applicant lodged an Application for Unfair Dismissal Remedy (the Application) in January 2012 asserting that she had been unfairly dismissed from her employment on 14 December 2011. The Respondent lodged an Employer’s Response to the Application for Unfair Dismissal Remedy (the Employer’s Response) asserting that the Applicant resigned from her employment. The Respondent further lodged an Objection to Application For Unfair Dismissal Remedy (the Employer’s Objection) requesting that the Application be dismissed.

[2] An application was also lodged in January 2012 by Ms Alexa Miller, the Applicant’s daughter, asserting that she was also unfairly dismissed from her employment with the Respondent on 14 December 2011. The Respondent also disputed that application, asserting that Alexa Miller resigned from her employment. That application is dealt with separately.

[3] I conducted a conference on 5 June. The conference concluded on the basis that the Applicant would advise within 48 hours whether she wished to proceed with the Application. It was also agreed that if she did wish to proceed, then the matter would be dealt with on the papers without a hearing or further conference taking place.

[4] The Applicant advised on 11 June that she did wish to proceed. The parties later provided documentation including witness statements.

The Submissions

The Respondent

[5] The Respondent asserts that the Applicant’s employment was not terminated on the employer’s initiative. They submitted that:

• On the morning of Wednesday, 14 December the Applicant attended the Respondent’s ‘Mango Street' site in the morning and personally approached the Director, Mr Michael McInerney, in an abusive, rude and aggressive manner regarding her daughter’s resignation the day before.



• On the same morning, the Applicant attended the Respondent’s 'Coolibah Street' office and spoke to the front desk and office staff (approximately five women) in an aggressive manner saying words to the effect of; “I am glad that Alexa quit” because the Respondent’s staff are a “bunch of two faced gardia” (white-fellas).



• At approximately 10am, the Chief Executive Officer, Mr John Vos, spoke with the Applicant over the phone asking her to meet with him to resolve her concerns. The Applicant is alleged to have yelled abuse over the phone.



• At approximately 10.30am, the Applicant returned to the 'Coolibah Street' office acting aggressively and abused the front desk and office staff again, this time calling them; “a mob of two-faced bitches”.The Applicant also entered the office of staff member 'Nina' and verbally abused her also. Mr Vos attempted to calm the Applicant and explain that her behaviour was unacceptable, however she yelled abuse at him and was subsequently asked to leave the office.



• At approximately 10.45am, the Applicant returned to the 'Coolibah Street' office and again was abusive to front desk staff as she threw her work vehicle keys on the front desk and said; “I will be back to pick up my things.”



• It was by these actions that the Respondent concluded that the Applicant had resigned.



• On Thursday, 15 December the Applicant went into the 'Coolibah Street’ office on numerous occasions, again being abusive and aggressive. The Works Co-ordinator, Mr Dennis Peart, spoke with the Applicant for approximately 45 minutes in an attempt to calm her aggression and resolve her concerns.



• On the same day, the Applicant was provided with a letter from the Respondent accepting her resignation. The Applicant collected all her belongings and also her daughter’s belongings.



• A number of the female office staff expressed that they feared for their safety due to the significant aggression and abuse by the Applicant.

The Applicant

[6] The Applicant disputes most of the account of events by the Respondent as her following statement shows:

“I did not attend the EKCDEP office on the morning of the 14th of December 2011 in an abusive or aggressive manner, until John Vos rang Mick McInerney's mobile and told me to go to the office and see him.

I did not abuse any staff member singly, was talking in a loud manner to John Vos.

I did not enter the office where Nina Rossi was and verbally abused her, Louwana Johnson was also in the same office as Nina that morning.

I did not take any altercations out to the street whatsoever, until John Vos came down the stairs yelling out my name and started on me out the front of the office entrance.

I did not use any aboriginal language to hurl abuse at any white people in the office. I am not from here, and I don't even know these people's language. There are 16 different languages here in Kununurra.

I did not abuse anyone in the office, it was a situation between John Vos and I only, I had no other arguments with any other staff in the office, only John Vos, even of those names were mentioned in the office, no-one else came forward and said anything to me except John Vos.

I did not pack mine or Alexa's personal effects whatsoever, Alison Vos already had our desk cleaned and packed the next day, my stuff was dropped off to me in a plastic bag at a vacate lot by Mick McInerney.

I did not verbally abuse any other staff, it was between me and John Vos only.

I did not threaten any physical violence towards any of the staff members at EKCDEP, and there were lots of time that I saw EKCDEP female staff out and about by themselves and never approached them once.

I did not talk with Dennis Peart for 45 mins, it was at least 10 mins at the longest.

I have never seen the letter Annexure A , or received a copy of it.

John Vos and Mick McInerney did not once try and resolve anything with me, and all this could have been prevented if Mick McInerney was honest in stating that he was a director of EKCDEP, where my daughter Alexa could have complained to the EKCDEP board of directors.”

[7] The Applicant submitted her account of events as follows:

“On the 13th of December 2011, I was at work and was doing my usual routine as a mentor. That afternoon I arrived at the office like I always do, and as I was walking in the building to go upstairs a lady that I knew stopped me at the bottom of the stairs and told me that I better go and see how alexa is, cause she just got into an argument with John Vos, so I went upstairs and I saw alexa, by the look of her face I knew she wasn't happy, but I just kept doing what I do and didn't talk with her at that time, until we finished work and was at home. Then alexa told me what had happened.

• On the 14th of December 2011, I went to work as usual, and I pulled up in Mango St, feeling angry and upset I approached Mick McInerney in an upset manner, and said what was on my mind about the situation the day before. I must admit I said some things out of anger but I felt I had to talk to someone to get it off my shoulders, so I spoke to Mick McInerney. When I started to ask mick questions about who was the chairperson and the board of Directors, it was like Mick didn't want to tell me and was avoiding giving them to me, he kept telling me there was nothing the board of directors could do, and that there is no-one higher than John Vos and that he had the power to hire and fire anyone he wanted ( I was not aware at the time that Mick was calling John telling him everything I was saying ... this was later confirmed by John saying Mick told him everything). I found out later Mick McInerney was a member of the Board of Directors (this was told to me by the ICC) and also works as a CDEP supervisor at Mango St.



• I went and did my shopping for the lunches, and when I arrived back at Mango St, Mick McInerney approached me with his phone and told me that John Vos wanted to speak with me, so I get on the phone and asked what he wanted, John Vos asked me to come to his office so we can speak about alexa and what happened the day before, I said to John in an angry way, “OK, and have Nina in the office with you”, cause I wanted to hear why Nina stood there and watched and listened while John abused Alexa and she didn't have the decency to inform Alison that Alexa did let her know that she was leaving the office for 5mins.



• When I arrived at the office I went straight into John Vos, and all he could say to me was that “there have been complaints made about Alexa, and I said “what complaints John, What complaints were put on Alexa, he couldn't even answer me that, so I refreshed his memory and said back to him “Oh are you referring to the complaints your wife (Alison) whinges about that alexa didn't wash up or clean the dirty toilet bowl after all of you in the office here uses it or make mess, he didn't answer. John Vos then said she wasn't doing her job, he was saying that Amy, Nina and Alison does her job including me.( yet when alexa was complimented on by other people, John Vos stood there and was taking the credit for her), and when I started to say what her job as a receptionist was, and vacuuming everyone's office, scrubbing mud of your office floor, emptying everyone's bins, cleaning up after them every time they dirty something etc., is not a receptionists job, John Vos yelled at me to get out of the office, so I got up and said to him “the truth hurts hey John”.



• After I was ordered to leave the office, I slammed the bus keys on the bench and told them to look for someone else to drive the bus, then I left the office and continued my work in my own car, I took the ladies home and stayed down at Mango St for the rest of the day then finished work at 4pm as usual. Mick McInerney was there with the ladies when I arrived, so he knew I finished all my work that day.



• On the 15th of December 2011, I went to work at Mango St, got the bus and started doing my pickups with the ladies, after dropping the ladies off at TAFE, I went back to Mango St to get a purchase order off Mick McInerney, but he wasn't there, so I droveup to the office to see if he was there, he wasn't there either, so I left a message with another staff member (Cheryl) and was on my way back to Mango St, when I heard John Vos running down the stairs and yelling my name, as I turned to see what he wanted, John Vos Said to me “ Don't come here looking for purchase orders, you're not wanted here no more, so I said to John “are you firing me are you, john Said” no I'm not firing you, you resigned”, and I replied “well I aint quitting and I never resigned”, and then John Vos said” Well in that case” and handed me a letter that I quickly opened then threw the letter on the ground, I didn't even read it, was too busy arguing with John, then he offered to go upstairs so I did, another argument broke out between us, then I ended up leavingto stop his whinging, as I was leaving he called me back and said “before you stomp off out of the office, and I said to him “ I neverstomped off I walked off” and john said “oh whatever”, and started bringing up other situations that had nothing to do with what I went up there for in the first place, He stated to me in front of his wife Alison, Cheryl, and Kayt that he “ didn't like me anymore” and he said in a smart way, “What did I pay for Here”, trying to talk down to me in front of the other staff members, so I started to say things back to him what I thought wasn't right in the office, John Vos didn't like it and told me again to get out of the office. At this time I realised Alison his wife had already cleaned and packed our belongings up from our desks, and threw things in the bin that belonged to alexa, this was upsetting and embarrassing to me. John Vos just kept going on about things, and putting me down in front of the other staff, and after that I just walked out and left it at that.

I had a lot of respect for John Vos and really enjoyed my work, and the sad part about it, is that he knew I enjoyed my job, I did everything at work that man had ask me to do without complaining, (and it all had to do with cleaning). He never once came to where I was working and saw what I did, and I was making up to 30 lunches a day and he still wasn't satisfied, I evenheard him whingeing about the lunches I make and he didn't know I was standing there, yet he sits back in office like he always does and whinge and complain about staff who does everything he asks when it comes to work.

I ended stopping Mick McInerney at a vacate block and the next thing here he is carrying a plastic bag with all my stuff in it from my desk. I just grabbed them of (sic) mick and left.”

Consideration

[8] A considerable amount of time and effort during the conferences on this Application related to wages and entitlement related issues. These issues seemed to centre around details of payments made and details about those payments. The Applicant asserted that she had not received the payments, explanations nor details regarding payments. Extensive efforts were undertaken by the Respondent to ensure the Applicant had payments and entitlements fully explained to her and that she received any payments to which she was entitled. However, as I explained to the Applicant, ultimately these proceedings were not the proper avenue to pursue under payment claims.

[9] I agreed that the matter be decided on the papers after taking into account the location of the parties, the nature of the issues, the approach taken to the proceedings by the parties, the Applicant not seeking reinstatement and that any award for loss of remuneration would be relatively small, as apparently the Applicant had obtained other employment almost immediately after her ceasing to be employed by the Respondent. The Applicant and the Respondent both agreed that I decide the Application on the papers.

[10] By deciding the matter on the papers, I am limited in my capacity to make findings of fact. However, by the submissions made and the witness statements provided, it is possible to form a view about what occurred.

[11] On the Applicant’s own account, on 14 December 2011, she was feeling angry and upset and she approached Mr McInerney in an upset manner. She submitted that she said what was on her mind and said things out of anger.

[12] When requested by Mr Vos to meet with him, she says she made a comment “in an angry way”. It is also clear from the Applicant’s own statement that she was forthright in the meeting with Mr Vos and it is obvious that it was a heated discussion. After leaving Mr Vos’ office, the Applicant submitted that “After I was ordered to leave the office, I slammed the bus keys on the bench and told them to look for someone else to drive the bus”. However, she says that she then continued to work from her own car.

[13] On 15 December 2011, the Applicant says she went about her work as usual and Mr Vos approached her. She says that Mr Vos stated “no I'm not firing you, you resigned” to which she responded “well I aint quitting and I neverresigned”.

[14] At this juncture Mr Vos handed her a letter (dated 14 December 2011) but the Applicant says “I quickly opened then threw the letter on the ground, I didn't even read it”. It is apparent that the letter the Applicant threw on the ground was the letter regarding her termination of employment. A statement of Ms Natalie Riggs that the Applicant provided also makes that clear. The letter was a letter from the Respondent to the Applicant which stated the following:

“In response to your recent totally unacceptable behaviour in our office today, the untoward accusations made to several of the female staff, your return of our property (including the bus key) and your request for us to package your personal property for collection I am accepting your verbal resignation.

Further to this, your failure to complete your days work and behaviour toward other staff at the Mango Street site lead me to believe you have no desire to retain your employment with EKCDEP.

Your final pay and entitlements still owing will be finalised by close of business on Friday.

I remind you that your contract has elements of confidentiality and acceptable behaviour, any negative allegations either personal, professional or aimed at EKCDEP will be dealt with by our lawyer in the appropriate manner.”

[15] The Applicant states that she has never seen the letter of 14 December 2011. That does not appear to be entirely accurate but even if it was, the inference she appears to be trying to make is that she had not seen it as consequence of some failing by the Respondent. It is obvious that her reaction and conduct on 15 December 2011 is the reason why she may not have seen the letter.

[16] It is clear from the Applicant’s own account that she was angry on 14 December 2011. It is apparent from the statements provided by the Respondent that the Applicant was abusive, and unacceptably so. The Applicant’s version is that “she did not abuse any staff member singly”. From that she seems to infer she acknowledges that she did abuse either Mr Vos directly or the organisation generally, or both. Whichever of those is the case, it is inappropriate conduct.

Conclusion

[17] Although it is most likely that the Applicant, even if the Applicant did not expressly resign from her employment, by her conduct and comments on 14 December 2011, acted in a way that it was reasonable for the Respondent to conclude that she had. Indeed, I formed the view and find that the Applicant’s employment was not terminated at the initiative of the employer.

[18] However, given the circumstances of how this matter was conducted, if I am wrong in that finding I will make further findings regarding the termination as though it were a termination of employment at the initiative of the employer.

[19] In my view, the Respondent did have a valid reason for terminating the Applicant’s employment. That reason was the conduct and behaviour of the Applicant on 14 and 15 December 2011. The Respondent treated the termination as a resignation and had reasonable grounds to do so. Thus, the Applicant was not notified of the reason, or given an opportunity to respond nor was there a refusal for a support person to be present. However, these failures were in the context of how events unfolded and the behaviour of the Applicant in those events.

[20] The Respondent’s behaviour is also not beyond criticism if the Applicant’s version of events is accurate, and, in particular, how Mr Vos responded to the Applicant’s anger and how he approached the Applicant on 15 December 2011. It should be stated that Mr Vos disputes the Applicant’s version of events about his conduct and behaviour on those days. The relatively small and remote nature of the organisation appears to me to have had an impact on the manner in which the termination came about, as did the lack of specialist human resources management specialists.

[21] If the termination was at the employer’s initiative, I find that the dismissal was not harsh, unjust or unreasonable. The Application is dismissed.

DEPUTY PRESIDENT

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