Samira Mannah v ISS Facility Services Australia Limited T/A ISS Facility Services
[2015] FWC 8147
•15 DECEMBER 2015
| [2015] FWC 8147 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Samira Mannah
v
ISS Facility Services Australia Limited T/A ISS Facility Services
(U2015/9883)
COMMISSIONER SIMPSON | BRISBANE, 15 DECEMBER 2015 |
Application for relief from unfair dismissal – Applicant dismissed for Serious Misconduct – Applicant not deliberately dishonest – Dismissal Unfair – Reinstatement Ordered.
[1] This matter concerns an application pursuant to s.394 of the Fair Work Act 2009 (“the Act”) by Ms Samira Mannah (“the Applicant”) who alleges that the termination of her employment with ISS Facility Services Australia Limited T/A ISS Facility Services (“the Respondent”) was unfair in accordance with the definition contained within s.385 of the Act.
[2] The Applicant commenced employment with the Respondent on 22 November 2010 in the role of Aviation Protection Officer and was terminated on 16 July 2015. The Applicant’s employment was covered by the ISS Security Pty Ltd and United Voice Secure Future Enterprise Agreement 2012-2016 (the “Agreement”).
[3] The Applicant was employed at the Gold Coast Airport (‘GCA’) site for the Respondent’s contract with Queensland Airports Limited (‘QCA’) and was employed in a permanent part-time position. The Applicant has worked in accordance with a seven-day rotating roster with hours varying from 30-38 hours per week.
[4] The application was filed on 3 August 2015. An attempt was made at conciliation but the matter was not resolved. The matter was then listed for arbitration on 30 November to 2 December 2015. The Applicant was represented by Mr Dermot Peverill of United Voice, and the Respondent was represented by Mr Jed Moore, its National General Manager Industrial Relations.
[5] Three witnesses provided statements and attended to give evidence in the Applicant’s case, Ms Mannah gave evidence on her own behalf 1, Raylene Barker, an Aviation Protection Officer employed by the Respondent at the Gold Coast Airport2 and Mr Todd Mainwaring, an Aviation Screener employed by the Respondent at the Gold Coast Airport3.
[6] Four witnesses provided statements and attended to give evidence in the Respondent’s case, Debbie Whitby the Respondent’s Operations Manager at the Gold Coast Airport 4, Cindy English the Respondents Regional Return to Work Manager5, Philip George the Duty Manager employed by the Gold Coast Airport6 and Sharie Harrold, the Respondent’s National People Manager – Aviation and Transport.7
19 May 2015
[7] The Applicant submits that on Tuesday 19 May 2015 before commencing her journey to work she slipped and fell on the driveway of her private residence. The Applicant described the incident in her statement as follows:
“8. I recall leaving for work at approximately 0525. It was raining outside. I walked down my (steep) driveway, opened the gate, and walked back up the driveway. I got into the car and drove it down the driveway.
9. At this stage I recall leaving my car and closing the gate. The driveway was slippery from the rain. I lost my footing and fell heavily onto my buttocks. I recall trying to break my fall with my hand and I also remember my head feeling very dizzy and sore. At the time, I was groggy and only concerned about getting to work so I did not fully realise the extent of my injuries.
10. I subsequently drove myself to work. We have a ten-minute walk between the staff car park and the terminal. I do not recall making this trip.
11. I recall logging onto the Kronos at approximately 0550. I also signed in for a locker key.
12. I recall Raelene Barker asked me whether I was okay. She told me that my gold filigree ring was twisted around my finger. Soon, there was a number of other officers around us as they had started to arrive for their shifts.
13. Someone asked me if I had fallen and I recall saying ‘yes’. Someone else said words to the effect of ‘she has fallen in the car park’. I also recall saying ‘yes…..I think I fell in the car park’.
[8] In cross examination when asked if 05:50 was her recollection of the time she answered no that’s what she was told. She said in oral evidence she remembered logging on but didn’t know what time. The Applicant said Debbie had told her it was 5:50. 8
[9] In her oral evidence the Applicant described that she remembered thinking she was dreaming, and that it was like an ‘out of body experience’. When asked during cross examination if her evidence was that she did not say that she’d fallen in the carpark, the Applicant indicated she could not really remember but everyone was saying carpark and she might have said “I’ve fallen in the carpark”. 9 She later agreed that she had said that, but she was confused and in shock and didn’t realise it.10
[10] Ms Barker, a fellow Aviation Protection Officer with 10 years’ service with the Respondent gave evidence that she was also a representative on the Respondent’s Occupational Health and Safety Committee at the Gold Coast Airport. Her evidence was when she saw the Applicant on the morning of 19 May she was distressed, seemed dazed and a little vague. 11 In her oral evidence she described the Applicant when she first saw her as pale and that “she sort of looked through me rather than at me, which is quite unusual for Sam.” Ms Barker said the Applicant looked as though she was about to burst into tears, showed Ms Barker her hands which were grazed and her ring was bent and digging into her finger which was swollen and turning purple.12
[11] The Applicant rang the Care hotline, it would seem from evidence attached to the statement of Ms English, at 6:39am that morning and reported getting out of her car and slipping and falling on her backside and injuring her hand. The Applicant said she had no recollection of making the call. 13
[12] It was the Applicant’s evidence that Ms Barker made a phone call to Mr Phil George, who is the airport manager and she was taken to the office by Marion (a fellow APO) to have her ring cut off and the abrasions on my hands cleaned. She said she did not recall much as she felt disoriented and as though she was watching the situation unfold in an out-of-body experience. She said she felt pain in her back, hands, buttocks and head.
[13] The Applicant was asked in cross examination if she reported the various areas of pain in her body to Mr George when she attended the first aid area. She answered that she was dazed and a little vague. She said she did tell him that she had lower back pain and wasn’t feeling good, and she told him her jaw was hurting. 14 The Applicant disputed the evidence of Mr George that she did not complain of other injuries or pain besides a sore backside.15 The Applicant also claimed she said to Mr George she had a little bit of a headache, and he told her if she wasn’t feeling well she should go and see her GP.16 The Applicant agreed that she told Mr George she had fallen in the staff car park.17
[14] Importantly, Ms Barker said in her statement that with the Applicant appearing to be confused and a little dazed her fear was that she had fallen heavily and hit her head causing possible concussion or a minor brain bleed. 18 In her oral evidence when asked what led her to reach that conclusion she said that when the Applicant came back from seeing Phil (Mr George) she actually said that her back was sore and that her head was sore and at the back of her head where she showed Ms Barker there was a slight cut and a slight bleed.19
[15] The evidence of Ms Barker was largely consistent with what she had said in an incident report which she had been requested to provide by Debbie Whitby on 15 July 2015, the day before the Applicant was terminated. The incident report in the form of an email 20 provided by Ms Barker to Ms Whitby included that on the morning of 19 May the Applicant looked ‘vague and confused as through she really was not sure’. It also said that “She was extremely pale and said that her head was sore as well as her lower back.” Ms Barker gave evidence to the effect that the report did not include the detail she gave in her oral evidence because she was at home on her day off (on 15 July) when she got a phone call from Ms Whitby asking for the report so it was done quickly.21
[16] Debbie Whitby, the Respondents Operations Manager at the Gold Coast Airport, gave evidence that she saw the Applicant at approximately 6.50am on the morning of 19 May as she was leaving the site. Ms Whitby said she asked the Applicant if she wanted assistance to walk to her car in the staff carpark and the Applicant replied that she was okay and just had a sore hand and bottom and was just going to speak to Phil (Mr George). Ms Whitby gave evidence that the Applicant did not seem at all confused or disoriented and was speaking in a normal manner. Ms Whitby gave evidence that she attended the meetings with the Applicant on 19 June and 16 July as a note taker. 22
Ms English, the Respondent’s Return to Work Manager, gave evidence that on 19 May she became aware of an incident involving the Applicant via an email alert at 6.39am as a result of the Applicant reporting the incident to the ISS CARE hotline. Ms English said shortly after receiving the email she phoned Sulley Mulmaitre, the Applicant’s Shift Supervisor who advised that the Applicant had received first aid, and was fine to continue her shift however was shaken and sore. Ms English said that she arrived at the site at 6.45am and upon arrival was advised the Applicant had left the site and was seeking further medical attention. Ms English said she continued with her planned activities for approximately two hours before contacting the Applicant for a welfare check. 23
[17] Mr George, the Duty Manager employed by the Gold Coast Airport gave evidence that at around 6:00am he was phoned by Raylene Barker who advised him an employee of the Respondent required first aid as she had fallen in the carpark. 24
[18] Mr George said the Applicant presented at the first aid office with Marion Rohrick and identified her injuries as three very small grazes on the palm of her hand and a very thin ring she was wearing was bent and pushing into her finger. He said the Applicant also complained of a sore backside but did not complain of other injuries. Mr George said he asked how the injury had occurred and the Applicant said that she fell in the carpark. Mr George said that the Applicant presented as lucid and aware of her surroundings and circumstances, although understandably somewhat upset by her injuries and having her ring cut off. 25
[19] Mr George said that after the Applicant left he reviewed the CCTV footage to try and locate the incident. He said he observed the Applicant’s journey in her car from the point of entry in the carpark however he was unable to identify the incident. He said he phoned Ms Barker again and asked to speak to the Applicant again, and Ms Barker advised that she would send the Applicant to see him. Mr George said that the Applicant attended his office and when he advised that he was unable to locate the incident and requested she identify exactly where the fall occurred she stated it occurred just as she was getting out of the car in between two cars. 26
[20] Mr George’s oral evidence was largely consistent with his statement. He said in his oral evidence he asked the Applicant if she hit her head and she said no. 27 He described her demeanour as ‘pretty normal’.28 Mr George gave evidence concerning the obtaining of the CCTV footage.29 He gave evidence that he had training in first aid and CPR but no other medical qualifications.30
[21] The Applicant said she saw Mr George as she made her way out of the airport. The Applicant said he told her that he could not see her fall on the CCTV footage and asked whether she had fallen somewhere else. The Applicant said in her statement she did not recall whether she responded. The Applicant said at that stage she was feeling extremely unwell and was only concerned with getting home to change and see her doctor.
[22] In her oral evidence the Applicant said Mr George said he told her that he couldn’t see her on the CCTV footage where she had fallen and that she must have fallen somewhere else. 31 The Applicant agreed with the proposition that he both asked her whether she had fallen somewhere else, and told her.32
[23] It was put to the Applicant that Mr George’s evidence was that when she attended his office he advised her he was unable to locate the incident and requested that she identify where the fall had occurred, and the Applicant stated it occurred as she was getting out of her car in between two cars. The Applicant claimed this occurred not when she was leaving but when she was originally receiving first aid. 33 When the Applicant was referred to a copy of Ms Harrold’s notes of a meeting on 19 June 2015 where the Applicant is recorded as saying that Mr George said to her, you haven’t fallen in the carpark, she accepted it was said in the second meeting with Mr George, not the first.34
[24] Mr Todd Mainwaring, an Aviation Screener employed at the airport by the Respondent for 6 years, gave evidence that, on the commencement of his shift on 19 May 2015, he saw the Applicant and Marion (Rohrick) walking toward him. He said Marion’s arm was around the Applicant as if she was guiding the Applicant and they were walking slowly and from a distance he could tell that something was not right. He said that as he got closer he said hello to the Applicant, and the Applicant did not reply which was not normal for her. Mr Mainwaring said that the Applicant looked up at him with a blank look on her face and she seemed dazed and confused and that it was his impression that the Applicant was unsteady on her feet. He said he mouthed to Marion, “is she okay” to which Marion shook her head. 35
[25] The Applicant said in her statement after going home she pulled up in her driveway and recalled having fallen there. She said she made a cup of tea and changed out of her uniform. In answer to a question in cross examination about the time during the day on 19 May the Applicant became aware that the fall had not occurred in the staff carpark, she continued to maintain it was when she drove home. 36
[26] The Applicant said in her statement that she received a call from Cindy English and that during the call the Applicant expressed her confusion and told Ms English that she thought she recalled having fallen in her driveway and Ms English advised her that if that were so she was not covered by Work Cover. The Applicant in oral evidence said she vaguely remembered the conversation. She initially said she was unsure if she was on her way to the doctors or outside the doctors. 37
[27] It was put to the Applicant during her oral evidence that she claimed she told Ms English that she might have fallen at the bottom of her driveway, which was different from her earlier oral evidence that she remembered when she returned to her residence that she had fallen at the bottom of the driveway. The Applicant said she was confused, and she said to Ms English she might have fallen at the bottom of her driveway and she was still a little unsure, confused, concussed and in shock. 38
[28] The Applicant was referred during cross examination to the last page of Ms Harrold’s record of the meeting of 19 June and asked whether she recalled saying at the meeting that she didn’t recall speaking to Cindy. She replied she did not recall saying that. 39 She maintained she did remember saying at the meeting on 19 June that she didn’t remember speaking to Cindy.40 The Applicant then said that she did not have any recollection of the conversation with Ms English. She said she knew she was having a cup of tea and she spoke to Cindy at some stage and she didn’t remember if it was outside at home or outside the doctors. She said she was a bit confused about it.41
[29] Ms English said in her statement when she called the Applicant she sounded teary and upset and she advised she was having a cup of tea to settle down before she went to see her doctor. Ms English said she relayed the information she had received from Mr George that the CCTV footage had been reviewed and the fall could not be located, and the Applicant responded with words to the effect that she thought she may have fallen on the driveway on the way to work, and that she was confused about where the fall had occurred and maybe it was in her driveway. Ms English maintained in her oral evidence that the Applicant wasn’t sure where she fell, and the reference to the driveway was a suggestion, not a conclusion. 42 Ms English accepted that the condition of the Applicant on the morning could explain the lack of detail provided by the Applicant in the CARE Hotline report.43
[30] The Applicant’s submissions included the following statement:
“On Tuesday 19 May 2015, the Applicant was rostered to work before her rostered three days off. The Applicant before commencing her journey to work slipped and fell down a set of external stairs leading to the driveway of her private residence. As a result of the fall the Applicant sustained injuries to her neck and back…..”
[31] This version was inconsistent with the Applicant’s witness statement. In her oral evidence when asked if this was accurate the Applicant said that she didn’t fall down the stairs. She said there are external stairs alongside the driveway, but she didn’t fall down the external stairs, and it was on the driveway. 44 It was never made clear what the source of this discrepancy was. The Applicant did say she remembered being on the ground, that it was raining and she got in her car drive to work.45 The Applicant also said that she remembered it was 5.25 when she left for work.46 She maintained at various times in her evidence that the only logical conclusion was that she had fallen in her driveway.47 In her oral evidence she claimed she remembered that she found 50 cents (on the ground) when she came home from work which she concluded must have been money she would ordinarily carry to work each morning to purchase a coffee.48
[32] During cross examination the Applicant was shown some CCTV footage of a number of camera angles purporting to show her walking into the airport from the carpark. The Applicant accepted in at least some of the footage that a person seen in the footage looks like her, 49 or was her, however believed that the way she was walking was not the way she usually walked.50 The Applicant claimed she had trouble walking.51 It was put to the Applicant that the footage showed the Applicant walking without a limp or any observable difficulty. She maintained she did have trouble walking.52 It was not in contest that the Applicant was never shown the CCTV footage before she was terminated.
[33] It was submitted for the Applicant that due to the Applicant still feeling “dizzy” and “woozy”, the Applicant visited Doctor Cezary Owczarek, General Practitioner. Dr Owczarek conducted an assessment and observed the Applicant to be confused, incongruent recollection of the event with retrograde amnesia, combined with headache, neck and low back pain, hypertension, tachycardia and neurological symptoms. Dr Owczarek contacted the Queensland Ambulance Service (QAS). The Applicant was then transported to Tweed Hospital, Northern News South Wales, Local Health District for further treatment and examination.
[34] In her witness statement the Applicant described the following:
“20. Soon after the phone call from Cindy, I travelled to see my doctor – Cezary Owczarek, General Practitioner (Dr Owczarek).
21. Upon arrival, the receptionists pushed me to the front of the queue as a suspected emergency case. My GP called an ambulance immediately and I was rushed to the Emergency Department at Tweed Heads Hospital.
22. Dr Owczarek conducted an assessment and observed that I presented as confused, incongruent recollection of the event with retrograde amnesia, combined with headache, neck and lower back pain, hypertension, tachycardia and neurological symptoms. The medical statement of Dr Owczarek is attached and marked “SM-02”.
23. I was subjected to a number of tests, including multiple CT scans and X-Rays. I was informed that I had suffered a mild concussion and short-term amnesia. I had also fractured a vertebrate in my back. I was told that my condition had likely deteriorated from the point of the accident and would have continued to do so.
24. The Hospital wanted to keep me under observation overnight, but released me into Rachel’s (my daughter’s) on the condition that she stay at home with me and monitored my condition.
25. I was prescribed Endone. I found it difficult to sleep, sit and lie down. I am still in pain but recovering…”
[35] The Applicant said in oral evidence she did not remember driving to the doctors. 53 The Applicant’s recollection of her attendance at the doctor’s surgery and subsequent admissions to hospital is quite vague.
[36] For the period the Applicant was incapacitated she said medical certificates were provided to Ms Whitby. This appeared not to be in contest. The evidence attached to the Applicants witness statement included a certificate from Dr Owczarek dated 19 June 2015 describing the doctors assessment of the Applicants condition on 19 May as set out above. 54 Also included was a further certificate also dated 19 June from Dr Owczarek certifying that the Applicant was receiving medical treatment and for the period 19 June 2015 to Friday 3 July 2015 inclusive she would be fit for reduced working hours – 6 hours a shift only.55
[37] The Applicant said that on or about 3 July she was cleared by Dr Owczarek to return to her normal duties and a certificate to that effect was attached to her statement. 56
19 June 2015
[38] The Applicant received a letter of allegation via e-mail, directing the Applicant to attend an investigation meeting on Friday, 19 June 2015. It was alleged that the Applicant:
a) Reported an incident to the ISS care line on the 19 May 2015 pertaining to a fall in the car park at work.
b) When CCTV did not support the Applicant’s version of event, the Applicant changed her version of the event to the fall happening in the driveway.
[39] Ms Harrold, the National People Manager – Aviation and Transport said that once the Applicant was fit to resume some restricted duties she arranged to meet with the Applicant on 19 June. Ms Harrold provided a copy of her notes of that meeting. 57
On Friday 19 June 2015, the Applicant attended a meeting with Ms Harrold, Ms Whitby, Stewart Johnson Operations Manager and Rachel Walter-Mannah, the Applicant’s Support Person. The Applicant provided a verbal response to the allegations. Ms Harrold said that following the meeting she undertook a further review of the incident reports and details of the first aid report to check various factors raised by the Applicant.
15 July 2015
[40] On Wednesday, 15 July 2015, the Applicant received a letter via e-mail directing her to attend an outcome meeting on Thursday, 16 July 2015, from Ms Harrold. On the same day Ms Barker was asked by Ms Whitby to provide an incident report.
16 July 2015
[41] On Thursday 16 July 2015, the Applicant attended an outcome meeting with Ms Harold, Debbie Whitby, Operations Manager, Stewart Johnson Operations Manager and Rachel Walter-Mannah, Grace Willey, United Voice Official on the phone.
[42] Ms Harrold said that at this meeting she reviewed the issues discussed at the meeting on 19 June 2015 and provided the Applicant a further opportunity to respond to the issues. As no new information was provided by the Applicant, Ms Harrold said in her statement that she then explained the decision she had reached to terminate the Applicant’s employment based on the balance of probability regarding the false reports. This decision was confirmed in writing. Ms Harrold’s evidence appeared to indicate the meeting on 16 July lasted for in the order of 10 minutes. 58 At the conclusion of the meeting the Applicant was given a letter terminating her employment.
[43] Ms Harrold agreed that the reason for termination was serious misconduct. 59 She also accepted that the Applicant was never shown the CCTV footage.60 Ms Harrold said she was relying on an incident report provided by Ms Barker around the time of the incident on the basis that it carried more weight than the report provided by Ms Barker on 15 July. However if Ms Barker did provide an earlier incident report it was not provided as part of the Respondent’s case.61 62
[44] Ms Harrold, also in her evidence, referred to evidence of another person Marion (Rohrick) who was present and Ms Harrold said gave different evidence to Ms Barker. 63 The Respondent had, as part of the material it filed prior to the hearing, included a very short three paragraph statement from Ms Rohrick which on its face gave no indication as to the nature of the evidence Ms Rohrich may have given regarding the state of the Applicant on 19 May. However the Respondent advised at the commencement of proceedings on the first day that Ms Rohrick would not be attending to give evidence and her statement was withdrawn.
[45] In cross examination the medical certificate of 19 June was put to Ms Harrold and she was asked why she did not accept this as clear and cogent evidence in support of the Applicant. Ms Harrold said in her evidence that the Applicant told her she fell twice. Ms Harrold said when she clarified this Applicant told her she fell once. 64 65 66 Ms Harrold gave evidence that given the injuries described (in the medical certificate) were inconsistent with the first aid report, the probability was that something else has occurred since. Ms Harrold said she did not dispute the medical evidence at all. Ms Harrold expressed concern at the inconsistencies in the Applicant’s statement, and it was as if the Applicant was making it up as she went along. It is clear Ms Harrold came to a conclusion that the injuries described in the medical certificate were not the same injuries, and additional injuries to those that the Applicant presented at work with on the morning of 19 May. It can only be presumed from Ms Harrold’s evidence that she believed the Applicant received these additional injuries at some time after she left work on 19 May but before she visited the doctor later that same day.67 68 The medical certificate completed by Doctor Owczarek is clear that his assessment of the Applicant pertained to an assessment undertaken on 19 May describing various conditions including concussion and referring her to hospital later that day for further assessment and treatment.
[46] Ms Harrold gave evidence that she wasn’t able to interview Ms Barker, however Ms Whitby obtained from Ms Barker the email of 15 July. When asked why she didn’t interview Ms Barker Ms Harrold said she had the earlier incident report (which was not put in evidence) and Ms Barker’s report of 15 July was inconsistent with it, and she had a potential opportunity to speak to the Applicant. 69
CONCLUSION
[47] There is no question that in the course of the Applicant’s evidence some inconsistencies arose on a number of occasions in terms of the details of 19 May, and that there appeared to be apparent inconsistencies in her interview on 19 June with her earlier recollections. This went to the issue of apparent differences between her written and oral evidence concerning whether she actually remembered events such as, for example speaking to Ms English at the time of the morning of 19 May or not, or when she recalled falling in the driveway. The Respondent points to these examples to support an inference that she is being dishonest.
[48] It is not surprising that these inconsistencies could give rise to some suspicion on the part of an investigator or decision maker. The difficulty on the particular facts of this case however is that it is equally possible that these inconsistencies are only further evidence of the Applicant’s central claim that she was suffering from concussion after a fall on the morning of 19 May and to some extent remains confused about the events of the morning of 19 May.
[49] There are factual circumstances which could point to the Applicant having deliberately engaged in misleading conduct in that she changed her story about where she had been injured on the morning of 19 May, shortly after being confronted with evidence that she could not have fallen at work as she had initially claimed. The Respondent relies on the evidence of Mr George and Ms Whitby that on the morning of 19 May the Applicant did not appear to them to be confused or disoriented as she claimed.
[50] The Respondent also relies on some CCTV footage of the Applicant which became available to it after the Applicants termination showing the Applicant walking from the carpark into work before the commencement of her shift on 19 May. The Respondent asserts the footage indicates the Applicant is walking normally. The Applicant claimed the footage showed she was not walking as she normally would. The various camera angles are taken some distance from the Applicant, and it is difficult to see the Applicants face in this footage.
[51] However there is also evidence that weighs against the probability of the Respondent’s findings. There is undisputed evidence the Applicant had a fall and was injured at the relevant time although the extent of the injuries suffered is disputed, at least prior to her leaving work on the morning of 19 May. As the case proceeded it became apparent through the evidence of Ms Harrold, the key decision maker that the Respondent did not in fact dispute that the Applicant had received the injuries described in the doctor’s certificate, but that those injuries must have occurred after she left work on the morning of 19 May. There is the evidence of Ms Barker and Mr Mainwaring, two work colleagues of the Applicant who were at work on the morning of 19 May and gave evidence that the Applicant appeared to them to be confused or disoriented, which would be consistent with the medical evidence in the doctor’s certificate. This evidence points to the real prospect that the Applicant was never dishonest, but genuinely confused or disoriented by being concussed on the morning of 19 May. It must be remembered that the period in which the Applicant incorrectly identified the location of her fall was confined to a period of a couple of hours. The Applicant advised Ms English at approximately 08:48am on 19 May that she believed she may have fallen on her own driveway.
[52] It is also the uncontested evidence of the Applicant that the injuries stemming from a fall did not resolve quickly and were in fact quite serious, including that she had in fact suffered a fractured vertebrate in her back at T6 between her shoulder blades. 70 Her uncontested evidence was that she was prescribed Endone for pain, a narcotic analgesic after having been treated by the GP earlier in the day on 19 May, and subsequently transported by ambulance to Hospital at the direction of her GP. The evidence is the Applicant was unfit for work for a considerable time, she provided medical certificates from her doctor each 5 days for the first month, and her doctor proposed a graduated return to work on light duties.71
[53] Ms Harrold in the course of her cross examination, admitted she did not interview Ms Barker as part of her investigation despite having to hand Ms Barker’s incident report of 15 July before her decision to terminate the Applicant on 16 July. Ms Barker’s statement of 15 July corroborated in some detail the Applicant’s claims about her condition on the morning of 19 May. Ms Harrold’s explanation for not interviewing Ms Barker was that her statement of 15 July was inconsistent with an earlier incident report provided by Ms Barker. The difficulty with this evidence is that no such earlier incident report was provided as part of the Respondents case.
[54] Ms Harrold relied on the opinions of Mr George, Ms Whitby and it appears Ms Marion Rohrick to reject the Applicant’s claims about her condition before she left work on 19 May. Another difficulty for the Respondent however is that Ms Rohrick never appeared to give evidence. When Ms Harrold was challenged in cross examination about why she did not accept the detailed medical certificate provided by the Applicant regarding her state on 19 May, she pressed the view as set out earlier that it was probable that the Applicant had a second fall, and sustained the injuries described by the doctor at some point presumably after leaving work on 19 May, but before visiting her doctor later the same day. This view appears however to be no more than speculation. It is supported only by her recollection that whilst being interviewed the Applicant referred to falling twice and changed to saying she fell once, and her opinion the injuries in the medical certificate are different to her injuries observed at work.
[55] It is notable that this claim of Ms Harrold that the Applicant said she fell twice appears only once on the second page of her own notes of the meeting on 19 June. The meeting notes do not indicate any further follow up on this issue in the course of the interview or the subsequent interview. There is no reference to this issue in Ms Whitby’s meeting notes. Nor was this issue the particular focus of any line of questioning of the Applicant when she was in the witness box. I am not persuaded there is any proper basis to accept Ms Harrold’s opinion in this regard, however Ms Harrold was clear in her evidence this is what she found to have occurred. 72
[56] Given that the Respondent does not contest that the Applicant was injured in the manner described in the medical certificate at some time on 19 May, and given I have rejected Ms Harrold’s view that the injuries were likely to be connected to an incident subsequent and separate to the fall that occurred before she attended for work on 19 May, it follows that I accept in all likelihood the injuries described in the medical certificate stemmed from the Applicant’s fall before work.
[57] It is also the case that there has been no evidence of, or suggestion from the Respondent of any other issues having arisen concerning the Applicant’s performance of conduct for the duration of her employment with the Respondent.
[58] Having considered all of the evidence and submissions I have concluded that the Respondents conclusion remains a less than likely possibility and on the evidence available was a finding that was unsafe and insufficient to support a conclusion on the balance of probability that the Applicant had been deliberately dishonest. Given the amount of evidence weighing in favour of the Applicant suffering from a concussion or related condition affecting her recollection of events at the relevant time I reject the Respondents finding that the Applicant was deliberately dishonest, and on that basis find that the Respondent did not have a valid reason for dismissal.
[59] The Applicant was notified of the reasons for termination and provided a termination letter. The Applicant was provided an opportunity to respond to the reasons. The Applicant had a support person to assist in discussions relating to dismissal. Section 387(e) is not relevant in this matter. The Respondent is a large employer, and has dedicated human resource management specialists so s.387(f) and (g) do not favour the Respondent. There are no other matters relevant to the determination of this matter.
[60] Having considered each of the elements of s.387 I find the Applicant’s dismissal was harsh, unjust or unreasonable.
REMEDY
[61] Sections 390-392 of the Act state that:
“390 When the FWC may order remedy for unfair dismissal
(1) Subject to subsection (3), the FWC may order a person’s reinstatement or the 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:
(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.”
“391 Remedy—reinstatement etc.
Reinstatement
(1) An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:
(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or
(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.
(1A) If:
(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and
(b) that position, or an equivalent position, is a position with an associated entity of the employer; the order under subsection (1) may be an order to the associated entity to:
(c) appoint the person to the position in which the person was employed immediately before the dismissal; or
(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.
Order to maintain continuity
(2) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to maintain the following:
(a) the continuity of the person’s employment;
(b) the period of the person’s continuous service with the employer, or (if subsection (1A) applies) the associated entity.
Order to restore lost pay
(3) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.
(4) In determining an amount for the purposes of an order under subsection (3), the FWC must take into account:
(a) 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 reinstatement; and
(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.”
[62] Consistent with s.381(1)(c) and s.390(3)(a) reinstatement is the primary remedy for unfair dismissal. The Applicant was consistent throughout that this is the remedy she wanted. The Applicant gave evidence that she enjoyed her employment with the Respondent and she intended to work for the Respondent until retirement. The Applicant lived in close proximity to her place of employment and has struggled to find other employment.
[63] A consideration of the appropriateness of reinstatement involves an assessment of a broad range of factors including whether there has been a loss of trust and confidence between the employer and employee.
[64] The impact on the Applicant of not ordering reinstatement is likely to be significant given her age, and inability to gain other employment since termination despite efforts to do so. Further I am not satisfied that the Respondent has been able to demonstrate a sound and rationale basis not to reinstate based on a loss of trust and confidence. There has been no history of any performance or conduct issues with the Applicant prior to the particular events of 19 May that led to her termination, and it has been determined the rationale for terminating the Applicant on the basis of dishonesty was not made out. It is appropriate to order reinstatement in this case.
[65] It is appropriate in this case to make an order maintaining the Applicants continuity of employment.
[66] It is also appropriate to make an order causing the Respondent to pay to the Applicant an amount for the remuneration lost, or likely to have been lost because of the dismissal. The Applicant was dismissed on 16 July 2015 and paid 5 weeks in lieu of notice which provides payment of remuneration up to 21 August 2015. I intend to issue an order that the Applicant be reappointed on or before 4 January 2016. The period between 21 August 2015 and 4 January 2016 equates to 19 weeks. An order will be issued requiring the Respondent to pay an amount the equivalent of 19 weeks wages plus superannuation for that period based on a weekly remuneration of $879.76 cents and weekly superannuation contributions of $81.99. Orders as described in this decision will be issued separately from this decision. Should any issue arise about the calculations used in the formulation of Order C, either party is at liberty to apply in the next 7 days to address that issue.
COMMISSIONER
Appearances:
Mr Dermot Peverill of United Voice for the Applicant.
Mr J Moore for the Respondent.
Hearing details:
2015.
Brisbane:
30 November
1 December
1 Exhibit 1 – Statement of Samira Mannah
2 Exhibit 3 – Statement of Raylene Barker
3 Exhibit 6 – Statement of Todd Mainwaring
4 Exhibit 4 – Statement of Debbie Whitby
5 Exhibit 5 – Statement of Cindy English
6 Exhibit 7 – Statement of Phillip George
7 Exhibit 9 – Statement of Sharie Harrold
8 PN159
9 PN162
10 PN164
11 Exhibit 3, para 5-6
12 PN529
13 PN439
14 PN181
15 PN186
16 PN188
17 PN191
18 Exhibit 3, para 14
19 PN538
20 Exhibit 3, attachment ‘RB1’
21 PN541-542
22 PN734
23 Exhibit 5, para 2-4
24 Exhibit 7, para 2
25 Exhibit 7, para 4
26 Exhibit 7, para 7
27 PN889
28 PN896
29 Exhibit 8
30 PN950
31 PN192
32 PN197
33 PN206
34 PN217
35 Exhibit 6, para 2
36 PN138 – 141
37 PN222
38 PN227-228
39 PN242
40 PN247
41 PN253
42 PN793
43 PN770
44 PN148
45 PN150
46 PN153
47 PN314
48 PN316
49 PN117
50 PN122
51 PN133
52 PN137
53 PN 259
54 Exhibit 1, para 22 attachment ‘SM-02’
55 Exhibit 1, para 26 attachment ‘SM-02’
56 Exhibit 1, para 28 attachment ‘SM-04’
57 Exhibit 9 attachment ‘SH 1’
58 PN1006
59 PN1017
60 PN1024
61 PN1035-1040
62 PN1069
63 PN1040
64 PN1054
65 PN1079
66 PN1119
67 PN1079
68 PN1106
69 PN1078
70 PN271
71 PN396
72 PN1106
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