Sharon Gamble v Monash City Council T/A City of Monash

[2016] FWC 85

[2016] FWC 85

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sharon Gamble
v
Monash City Council T/A City of Monash
(U2015/2950)

DEPUTY PRESIDENT KOVACIC CANBERRA, 6 JANUARY 2016

Application for relief from unfair dismissal – dismissal found to be fair - application dismissed.

[1] Mrs Sharon Gamble (the Applicant) lodged an application under s.394 of the Fair Work Act 2009 (the FW Act) which was received by the Fair Work Commission (the Commission) on 9 February 2015 alleging that the termination of her employment by Monash City Council T/A City of Monash (the Respondent) on 3 February 2015 was harsh, unjust or unreasonable.

[2] The application was heard on 1 and 2 June 2015. At the hearing, Mrs Gamble appeared and gave evidence on her own behalf. Mr Matthew Albert of Counsel appeared with permission for the Respondent. Ms Janet Salvatore, Coordinator Library Operations for the Monash Public Library Service run by the Respondent; Ms Anne-Maree Pfabe, the Respondent’s Manager for Community Information and Arts; and Mr Jason Brack, Team Leader at the Glen Waverly Library – a branch of the Monash Public Library Service run by the Respondent, all gave evidence on behalf of the Respondent. In addition, Ms Rebecca Smith, an independent Project Consultant engaged by the Respondent and Ms Natasha Collop, a Library Administration Officer – Community Directory and Staffing Support with the Respondent, were ordered by the Commission to attend the hearing to give evidence. The Orders were issued following applications by Mrs Gamble.

[3] For the reasons set out below, I have found that Mrs Gamble’s termination was not harsh, unjust or unreasonable and therefore dismiss the application.

Background

[4] Mrs Gamble commenced employment with the Respondent on a part-time basis on 29 July 1986. From 19 August 2013 until the termination of her employment on 3 February 2015, Mrs Gamble was employed as a Librarian, based at the Glen Waverley Library.

[5] On 12 March 2014 Mrs Gamble received a written warning for misconduct. The warning related to two instances of misconduct by Mrs Gamble. The first concerned Mrs Gamble making a number of unauthorised changes to library management system parameters with potential for the functionality of the system to have been compromised as a result, while the second concerned the unauthorised use of one of the Respondent’s vehicles for personal use. The warning was issued following an investigation by the Respondent during which the allegations were put to Mrs Gamble and she had an opportunity to respond to those allegations. Among other things, the warning letter stated as follows:

“… This first written warning will remain in effect for a period of 12 months until 11 March 2015.

Please note if there are any further proven allegations of misconduct and/or breaches of the City of Monash Code of conduct for employees within the period of this warning then further disciplinary action may be taken against you which may result in the termination of your employment with the City of Monash.” 1

[6] The warning letter, which was signed by Ms Pfabe, also outlined a plan for improvement and Ms Pfabe’s expectation that Mrs Gamble would adhere to the plan.

[7] Following further allegations of misconduct by Mrs Gamble, a first and final written warning was issued to her on 14 July 2014. This final warning related to five allegations of misconduct by Mrs Gamble. Specifically, it was found that Mrs Gamble:

• had travelled to the Mt Waverley Library on 12 June 2014 despite being directed earlier by her supervisor, Mr Brack, not to do so and that whilst there she asked a staff member to log her out of Time Target (the Respondent’s electronic time recording system) before leaving that the Library 30 minutes earlier than her normal finishing time;



• failed to attend her rostered shift on Saturday, 14 June 2014 and did not notify Ms Salvatore or any other staff member of this;



• on 16 June 2014 had swore at Ms Salvatore who had asked Mrs Gamble why she had not attended work the previous Saturday, with those actions witnessed by other staff;



• left work on 16 June 2014 at noon, four and a half hours before her scheduled finishing time, without notifying Mr Brack; and



• on 17 June 2014 did not notify Mr Brack or the Staffing Support Administration Officer of her intended absence prior to the scheduled commencement time as required.

[8] Again, the warning letter stated, inter alia, that:

“… This first and final written warning will remain in place until 13 July 2015. During this period if there are any further proven breaches of the City of Monash Code of Conduct for Employees or if you fail to meet the requirements of the plan for improvement referred to below then a recommendation will be made to the Chief Executive Officer that your employment is terminated.

I have outlined below your plan for improvement and confirm my expectation that you will adhere to this plan.

1. You will continue with regular fortnightly meetings with your Supervisors … to discuss your ongoing role.

…

3. If you intend to be absent from work or if you wish to leave work early within your normal hours of work, you are to verbally inform the staffing support Administration Officer and seek the prior approval of your supervisor Jason Brack or the Coordinator Library Operations, Janet Salvatore.

…” 2

[9] Again, the first and final warning was issued following an investigation by the Respondent during which the allegations were put to Mrs Gamble and she had an opportunity to respond to those allegations.

[10] Mrs Gamble took a period of leave from 20 August 2014, returning to work on 20 January 2015. On 21 January 2015 Mrs Gamble left work early without the prior knowledge or approval of Mr Brack or Ms Salvatore. This was followed by two further instances of alleged misconduct on 27 January 2015. Those two instances involved Mrs Gamble firstly using Ms Salvatore’s computer without permission and in the absence of Ms Salvatore and secondly returning 30 minutes late from lunch without notification and without seeking prior approval.

[11] Ms Pfabe subsequently wrote to Mrs Gamble on 29 January 2015 setting out the specific allegations of misconduct. The letter stated that:

“You are required to meet with me, Julie Salomon, Director Community Development and Services and Frank Rog Executive Manager Human Resources on Tuesday, 3 February 2015 at 10am … At this meeting will be seeking and discussing your response to the above allegations. You are invited to bring a support person with you to this meeting.

Please note that the outcome of this meeting may result in further disciplinary action being taken against you which may include a recommendation for the termination of your employment.” 3

[12] Mrs Gamble’s employment was terminated on 3 February 2015 with immediate effect “… on the grounds of your continuing misconduct.” 4 Mrs Gamble received four weeks payment in lieu of notice.

Mrs Gamble’s case

[13] Mrs Gamble disputed all of the alleged instances of misconduct and submitted that the Respondent would not accept her side of the story. With regard to the most recent and June 2014 instances of misconduct, Mrs Gamble submitted as follows:

• 27 January 2015 – her late return from lunch did not impact upon a single customer or staff member and was a trivial allegation;



• 27 January 2015 – it was common practice to share computers and it was quicker to use Ms Salvatore’s computer because it was the only one switched on that was available as Mrs Gamble was attending to an urgent matter;



• 21 January 2015 – Ms Salvatore and Mr Brack were both aware that she was leaving early;



• 17 June 2014 – she was unable to follow the Respondent’s absentee procedure because she did not have access to a mobile phone or Wi-Fi all day;



• 16 June 2014 – she had argued with Ms Salvatore regarding her non-attendance the previous Saturday, she lost her temper and swore at Ms Salvatore (for which she apologised at the next opportunity) and left work early;



• 14 June 2014 – she was not aware that she was rostered to work that day;



• 12 June 2014 – the chain of events was caused by last minute roster adjustments, though Mrs Gamble did acknowledge that she did ask another staff member to clock off for her.

[14] As to why she considered her dismissal unfair, Mrs Gamble submitted that she acted in a manner that was based on past experience and would be considered reasonable. With regard to remedy, Mrs Gamble submitted that she did not consider it possible to repair the trust damaged by the Respondent and that, as such, she did not believe reinstatement was possible. Accordingly, Mrs Gamble submitted that she would like to be paid her salary until she found another job or be transferred to another library, Council or government agency in an appropriate role.

[15] In her witness statement 5, Mrs Gamble deposed in relation to the March 2014 instances of misconduct that:

• on 3 March 2014 she could not locate her car keys and in the absence of all of the library managers at an offsite leadership meeting she decided to take a Council vehicle home, adding that it did not cross her mind that permission would not be granted because she had been able to borrow cars from the Respondent in the past and also it was normal for her husband (who works elsewhere) to borrow his work cars; and



• with regard to the allegation that she had altered library management system parameters, she did not understand how the allegations had been substantiated and that her reply did not seem to be understood or listened to.

[16] Beyond this, Mrs Gamble in her witness statement provided a somewhat more detailed explanation of the other instances of misconduct. Mrs Gamble also deposed that she had been rejected for three jobs that she had applied for and that as a direct result of her dismissal she and her husband of 17 years had separated.

[17] Under cross-examination Mrs Gamble acknowledged that she had received and read the first warning letter and the subsequent first and final warning letter. In response to questions regarding the January 2015 instances of misconduct, Mrs Gamble:

• did not explicitly state, despite repeated questions, that she had received permission or gone through the steps outlined in the first and final warning letter of 14 July 2014 with regard to leaving early on 21 January 2015, though she did state that she thought she had permission to leave as she had said to Ms Salvatore that she was going home and that Ms Salvatore had asked her “are you all right to drive?” 6;

stated that she used Ms Salvatore’s computer to access the internet as her computer was not turned on and takes some time to start up 7; and

acknowledged that she was late back from lunch on 27 January 2015 8.

[18] Mrs Gamble further attested that she was invited to bring a support person to the meeting of 3 February 2015 and that at that meeting she was provided with an opportunity to respond to the above allegations.

The Respondent’s case

[19] In short, the Respondent submitted that Mrs Gamble’s dismissal was not harsh, unjust or unreasonable and that her unfair dismissal application should be dismissed. More particularly, the Respondent submitted that there was a valid reason for Mrs Gamble’s dismissal relating to her conduct. As to remedy, the Respondent submitted that reinstatement was not appropriate because of the loss of trust and confidence between the parties and that in circumstances where neither party seeks reinstatement the Commission should be slow to find that reinstatement is appropriate. The Respondent further submitted that the Commission should not award any compensation to Mrs Gamble because of her misconduct.

[20] Ms Salvatore deposed in her witness statement 9 that a pattern emerged in early 2014 of Mrs Gamble not informing people prior to being absent from work and that between that time and the end of her employment she had to follow up with Mrs Gamble about three to four times about unexplained absences. Ms Salvatore further deposed that Mrs Gamble would never initiate communications with her about her absences. With regard to Mrs Gamble leaving early on 21 January 2015, Ms Salvatore deposed that following the meeting she asked Mrs Gamble whether she wished to stay in the room to compose herself but that Mrs Gamble replied that she wanted to go to her car. Ms Salvatore contended that she understood this to mean that Mrs Gamble would return to complete the remainder of her shift but that Mrs Gamble did not do so. Ms Salvatore stated that after the meeting and on leaving the building with Mr Brack she could not see Mrs Gamble’s car anywhere and subsequently both called and sent a text message to Mrs Gamble, the latter indicating that both she and Mr Brack thought it best that Mrs Gamble leave work at 4.30pm. Ms Salvatore further stated that Mrs Gamble responded to her text message late that evening apologising for having left Ms Salvatore in the lurch.

[21] Ms Salvatore also set out in her witness statement her version of a number of the other instances of Mrs Gamble’s misconduct. In support of her evidence, Ms Salvatore provided, among other things, copies of:

• an email from Ms Collop to Mrs Gamble and another employee confirming the shift swap for 14 June 2014;



• the Time Target roster for the week commencing 9 June 2014 which showed that Mrs Gamble was rostered to work on Saturday, 14 June 2014;



• an email she sent to Mr Rog summarising the incident of 16 June 2014 when Mrs Gamble called her a “b…h” and said “f..k you” to her; and



• copies of emails she received from Ms Collop and Ms Vranken who both witnessed the above incident.

[22] Under cross examination, Ms Salvatore attested that:

• she would not like to see Mrs Gamble reinstated as she does not think she adds value to the organisation 10;

it is not common protocol or courteous to sit in front of someone else’s computer or in a senior member of staff’s office without their permission 11;

there were only two staff who sometimes sat at her computer, i.e. Messrs McGarry and Brack, but that they only do so with her permission 12;

she had said to staff that they can use her office for confidential phone calls but they always seek her permission to do so 13;

the reason given by Mrs Gamble for returning late from lunch on 27 January 2015, i.e. that she was running an errand that took longer than expected, was unacceptable because Mrs Gamble had not attempted to advise her beforehand that she was running late 14; and

if she had been asked by Mrs Gamble whether she could borrow a Council vehicle, she would have said no because it is clearly Council guidelines and protocol not to take home a Council vehicle 15.

[23] Ms Pfabe in her witness statement 16 set out, among the things, the background to the Respondent issuing the first written warning and the first and final written warning to Mrs Gamble and the termination of Mrs Gamble’s employment. Ms Pfabe also referred to a meeting on 3 December 2013 with Mrs Gamble where she discussed changes that had been made to the Spydus database (the library management system) and other performance and conduct issues regarding Mrs Gamble. Specifically, Ms Pfabe deposed that she had raised the following concerns with Mrs Gamble:

• there had been numerous instances where she had acted contrary to direct instruction from her supervisors;



• her communication other staff had at times been inappropriate; and



• her failure to communicate her absences from work according to the correct procedure.

[24] Ms Pfabe further deposed that she sent an email to Mrs Gamble on 6 December 2013 advising her that any unauthorised access to the library management system would constitute a breach of her employment conditions 17 and that Mrs Gamble acknowledged receipt of this email on 20 December 2013. Ms Pfabe also sent a letter setting out the outcomes of that meeting to Mrs Gamble on 20 December 201318.

[25] Ms Pfabe also deposed that about a week after the first and final warning had been issued to Mrs Gamble she was advised by Ms Salvatore that Mrs Gamble had not been following the correct notification procedure in relation to absences from work. As a result, Ms Pfabe stated that she met with Mrs Gamble on 24 July 2014 when she outlined the procedure that she wished Mrs Gamble to follow when she was going to be absent from work, i.e. that she should contact either Mr Brack or Ms Salvatore before 9.00 am. Ms Pfabe deposed that Mrs Gamble appeared to become flustered and upset by this request and presented a number of reasons why she may not be able to comply with this requirement.

[26] Noteworthy aspects of Ms Pfabe’s oral evidence were that:

• Mrs Gamble’s termination letter was prepared and sent after the meeting with Mrs Gamble of 3 February 2015 19;

it was the Respondent’s Chief Executive Officer who made the decision to dismiss Mrs Gamble 20;

• the Respondent’s Light Vehicle Fleet Policy and Guidelines (the Policy) 21 was available on the Respondent’s intranet and that Mrs Gamble had access to the intranet22;

Mrs Gamble should not have taken a Council vehicle home and in circumstances where she had not been able to seek approval from her manager, she definitely should not have taken the vehicle home 23;

if she had been asked by Mrs Gamble as to whether or not she could take a vehicle home, she would have responded no 24;

• she had used other persons’ computers but always in the presence of the staff member whose computer she was using 25;

with regard to the meeting of 3 February 2015, the process involved going through the allegations with Mrs Gamble and asking her to respond to those allegations, the Respondent then discussed the issues subsequent to the meeting and decided to terminate Mrs Gamble’s employment 26;

she believed that Mrs Gamble often wanted to act outside the scope of her position 27;

the decision to terminate Mrs Gamble’s employment was based on her misconduct rather than the issues discussed in the progress meetings conducted following the warning letters issued to Mrs Gamble 28; and

Mrs Gamble would have been categorised as a category 7 employee under the Policy, with the Policy stating “Pool usage employment category 7: Pool usage is a category of use that permits employees to access council vehicles during business hours in order to perform their duties. Private usage of a pool vehicle is not permitted under any circumstance.” Further, the Policy stated at clause 10.5 that “Employees of the Council may drive a Council vehicle for reasons associated with the performance of the duties …” 29

[27] Mr Brack deposed in his witness statement 30 that he found Mrs Gamble difficult to work with because she did not follow directions given by him or other supervisors. Mr Brack continued that in the last six months of Mrs Gamble’s employment he felt like all members of the library team, including himself, were walking on egg shells with Mrs Gamble and that her behaviour was often unpredictable and erratic and had a significant negative effect on the morale of the library team as a whole. Mr Brack in his witness statement described Mrs Gamble as not being “a team player.”

[28] Mr Brack also set out in his witness statement his version of some of the instances of Mrs Gamble’s misconduct. Key aspects in this regard were that:

• he did not see Mrs Gamble place a trap on his library account (via the library management system), but concluded that she was involved because her initials were written into the trap;



• staff are not permitted to use Council cars for personal travel and that he had never heard of this occurring before;



• he informed Mrs Gamble that she did not have to go to Mt Waverley Library on the afternoon of 12 June 2014 after he confirmed this with Ms Frackowski (the Administration Officer at the Mt Waverley Library), to which Mrs Gamble responded “ok” – Mr Brack also provided a copy of an email 31 dated 4 June 2014 which was sent to him and Mrs Gamble by Ms Athina Mavromataki, Team Leader Mt Waverley Library, which stated that Mrs Gamble was not required at the Mt Waverly Library on 12 June 2014 and could complete her shift at Glen Waverley Library on that day; and

after the meeting of 21 January 2015 at which Mrs Gamble had become upset, he had said to Ms Salvatore that “we would need to send Sharon [Mrs Gamble] home as she was too upset to work the rest of her shift.”

[29] Under cross-examination, Mr Brack reiterated his evidence regarding the events of 12 June 2014 where Mrs Gamble went to the Mt Waverley Library despite being told she was not required there. Mr Brack also attested that had Mrs Gamble signed off on Time Target instead of having someone else do it on her behalf, it would have indicated to her that she was rostered to work on Saturday, 14 June 2014 32.

Ms Smith’s evidence

[30] Ms Smith’s oral evidence was that on 16 June 2014 Mrs Gamble presented at the Respondent’s reception area extremely upset and in very deep distress as she could not establish the whereabouts of her mother (Mrs Gamble’s mother was a resident in a facility previously owned by the Respondent). Ms Smith further attested that Mrs Gamble had given her a phone number to contact her on and that after Mrs Gamble had calmed down and left she made some enquiries and was able to provide some advice to Mrs Gamble as to where her mother was.

Ms Collop’s evidence

[31] In her vive voce evidence Ms Collop described the incident of 16 June 2014 in which Mrs Gamble had sworn at Ms Salvatore, confirming that Mrs Gamble had used the terms “You’re a b…h” and “F...k you”. Ms Collop also attested that after that meeting Ms Salvatore had asked Mrs Gamble whether she needed some time off but that Mrs Gamble responded “I’m fine. I’m not going anywhere” and that Mrs Gamble then left 33. As to her email describing the event, Ms Collop attested that she had been asked by Ms Salvatore to send through a statement of what she had witnessed and that Ms Salvatore did not direct her what to include in that statement34.

[32] Beyond that, key aspects of Ms Collop’s evidence were that:

• Ms Salvatore’s description of what she had been told by Ms Collop regarding the shift swap for 14 June 2014 was an accurate record of what happened 35;



• it is not usual practice for other staff to use Ms Salvatore’s computer 36; and

the procedure for staff who are going to be absent is to call in between 8.00 and 8.30am and that she had a record of three instances where Mrs Gamble had called outside that timeframe and was aware of other instances where Mrs Gamble had contacted other staff outside that timeframe 37.

The statutory framework

[33] The Commission exercises its discretion in relation to an application for an unfair dismissal remedy pursuant to Part 3-2 of the Act. In this case there is no contest that Mrs Gamble is a person who is protected from unfair dismissal pursuant to s.382 of the Act. In the context of this matter, the relevant provisions of the Act are ss. 385 and 387 which read as follows:

“385 What is an unfair dismissal

A person has been unfairly dismissed if 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, 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 FWC considers relevant.”

[34] There is no dispute that Mrs Gamble was dismissed, so s.385(a) of the Act is satisfied. Mrs Gamble contends that her termination was harsh, unjust or unreasonable, so s.385(b) is relevant. The Respondent is not a small business employer, therefore s.385(c) is not relevant. The termination was not a case of redundancy, so s.385(d) does not apply. Therefore, in determining whether Mrs Gamble was unfairly dismissed, I must consider whether the dismissal was harsh, unjust or unreasonable as per s.385(b).

Was the dismissal harsh, unjust or unreasonable?

[35] In considering whether a dismissal was harsh, unjust or unreasonable, the Act requires the Commission to have regard to the criteria set out in s.387. I will address each of those criteria separately.

(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)

[36] In Rode v Burwood Mitsubishi (Rode’s Case) 38a Full Bench of the then Australian Industrial Relations Commission (AIRC) canvassed the meaning of valid reason in the context of the relevant provisions of the Workplace Relations Act 1996 citing Selvachandran v Peteron Plastics Pty Ltd.39 The following is an extract from the Full Bench’s decision in Rode’s Case.

“[17] In relation to the meaning of “valid reason” the following remarks of Northrop J in Selvachandran v Peteron Plastics Pty Ltd are relevant:

“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 wellfounded; a valid reason’.

In its context in s 170DE(1), the adjective ‘valid’ should be given the meaning of sound, defensible or wellfounded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(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, when considering the construction and application of a s 170DC.”

[18] While Selvachandran was decided under the former statutory scheme the above observations remain relevant in the context of s.170CG(3)(a). A valid reason is one which is sound, defensible or well founded. A reason for termination which is capricious, fanciful, spiteful or prejudiced is not a valid reason for the purpose of s.170CG(3)(a).

[19] We agree with the appellant's submission that in order to constitute a valid reason within the meaning of s.170CG(3)(a) the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts. It is not sufficient for an employer to simply show that he or she acted in the belief that the termination was for a valid reason.”

[37] The issue of whether there was a valid reason for dismissal in circumstances where the dismissal relates to the conduct of an employee was canvassed by a Full Bench of the AIRC in King v Freshmore (Vic) Pty Ltd (King’s Case). 40 In its decision in King’s Case the Full Bench, drawing on Moore J’s comments in Edwards v Guidice41, stated:

“[23] When a reason for a termination is based on the conduct of the employee, the Commission must, if it is an issue in the proceedings challenging the termination, determine whether the conduct occurred. The obligation to make such a determination flows from s.170CG(3)(a). The Commission must determine whether the alleged conduct took place and what it involved.

[24] The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.”

[38] What needs to be determined is firstly whether the alleged conduct took place and, if so, whether it constituted a valid reason for Mrs Gamble’s dismissal. Consistent with King’s Case, the threshold issue needs to “be determined by the Commission on the basis of the evidence in the proceedings before it.”

[39] With regard to the January 2015 instances of misconduct, it is not disputed that Mrs Gamble left early on 21 January 2015 or that she used Mrs Salvatore’s computer and returned late from lunch on 27 January 2015. What is disputed, is whether or not Mrs Gamble had approval to leave early on 21 January 2015 and that it was common practice for staff to use other staff member’s computers as contended by Mrs Gamble. Against that background, based on the material before the Commission, I am satisfied that the conduct did occur.

[40] As mentioned above, Mrs Gamble considered her dismissal unfair because she considered that she had acted in a manner that was based on past experience and would be considered reasonable.

[41] The Respondent submitted that there was a valid reason for Mrs Gamble’s dismissal, relating to her conduct. The Respondent further submitted that its evidence about the misconduct is largely accepted by Mrs Gamble with the key difference being that Mrs Gamble considers that she engaged in the conduct with the necessary permission. To that end, the Respondent highlighted that the evidence of other employees of the Respondent was that no such permission was given. More specifically, the Respondent contended that each instance of misconduct was a failure to follow a lawful direction or the failure to maintain professional standards of behaviour which was in breach of the Respondent’s Code of Conduct for Employees. The Respondent further contended that the Code of Conduct for Employees was a lawful and reasonable policy which was binding on Mrs Gamble by virtue of clause 2.1 of the Monash City Council Enterprise Agreement No.7, 2013 42. The Respondent conceded that Mrs Gamble’s late return from lunch on 27 January 2015 was the most minor of the incidents involving Mrs Gamble, though it contended that the incident should be seen against the background of continuing concerns regarding Mrs Gamble’s attendance43.

[42] It is clearly disputed as to whether Mrs Gamble had approval to leave early on 21 January 2015. Mrs Gamble contends that she had tacit approval because Ms Salvatore asked her if she was all right to drive, whereas Ms Salvatore attested that when Mrs Gamble said she wanted to go to her car that she understood this to mean that she would be returning to work after composing herself. It is not clear why Ms Salvatore would have sent the text message she sent to Mrs Gamble on 21 January 2015 if she knew and/or had approved Mrs Gamble leaving early. This supports a finding that Mrs Gamble left work early without the approval of either Ms Salvatore or Mr Brack which is clearly in breach of the first and final warning letter issued to her. Further, it is clear from the evidence that Mrs Gamble was on notice so to speak as a result of the first and final warning that any further instances of misconduct might result in the termination of her employment. In my view, Mrs Gamble’s failure to obtain approval before leaving early on 21 January 2015 constitutes a valid reason for her dismissal.

[43] As to the misconduct incidents of 27 January 2015, while they are not of themselves significant they reflect a pattern of behaviour which suggests that Mrs Gamble thought that she could effectively do as she pleased. For instance, I find it very difficult to comprehend that in circumstances where Mrs Gamble’s attendance was an area of concern to the Respondent why she did not at least call Mr Brack to advise that she would be late back from lunch, even if only as a common courtesy. Further, when viewed against Mrs Gamble’s earlier misconduct those incidents appear to be “the straw that broke the camel’s back.”

[44] In summary, the evidence in this case supports a finding that there was a valid reason for Mrs Gamble’s dismissal. Drawing on the language of the decision in Rode’s Case, I am satisfied that the reason for Mrs Gamble’s termination is defensible or justifiable on an objective analysis of the relevant facts and was not “capricious, fanciful, spiteful or prejudiced.”

(b) Whether the person was notified of that reason

[45] The Respondent submitted that it wrote to Mrs Gamble on 29 January 2015 and set out the specific allegations of misconduct against Mrs Gamble. Further, Mrs Gamble was notified of the reasons for her dismissal during the meeting of 3 February 2015 and before the decision was made to terminate her employment, with the reasons confirmed in writing later that day. Mrs Gamble did not dispute the Respondent’s submissions in this regard.

[46] This indicates that Mrs Gamble was notified of the reasons for her dismissal.

(c) Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[47] Mrs Gamble submitted that she had responded throughout the process and attested that at the meeting of 3 February 2015 she was provided with an opportunity to respond to the January 2015 allegations of misconduct.

[48] The Respondent submitted that it provided Mrs Gamble with an opportunity to respond to each of the allegations of misconduct in the meeting on 3 February 2015.

[49] This supports a finding that Mrs Gamble was given an opportunity to respond to the reasons relating to her conduct. I note also that Mrs Gamble was previously provided with an opportunity to respond to the allegations of misconduct which underpinned the first written warning and first and final warning issued to her.

(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

[50] In its letter of 29 January 2015, the Respondent invited Mrs Gamble to bring a support person to the meeting of 3 February 2015. As it turned out, Mrs Gamble’s preferred support person was unavailable to attend, so Mrs Gamble attended on her own. This was not disputed by Mrs Gamble who attested that she was invited to bring a support person to the meeting of 3 February 2015.

(e) If the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

[51] Mrs Gamble’s dismissal does not relate to unsatisfactory performance. Accordingly, this is not a relevant consideration in this matter.

(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

[52] The Respondent employs approximately 1,200 employees. As such, the size of the enterprise is not a relevant consideration in this matter.

(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

[53] The Respondent accepts that it has a dedicated human resource function. As such, this factor is not a relevant consideration in this matter.

(h) Any other matters that FWC considers relevant

[54] Mrs Gamble made no submission in respect of this factor.

[55] The Respondent submits that there are a number of matters that militate against the Commission finding that Mrs Campbell’s dismissal was harsh. Firstly, the Respondent highlighted that Mrs Gamble had a history of warnings in relation to past instances of similar misconduct, emphasising that the first warning applied until 11 March 2015 and that the first and final warning applied until 13 July 2015. Secondly, the Respondent contended that following each of the warnings it took steps to assist Mrs Gamble to improve her conduct and avoid further misconduct by putting in place plans for improvement. Finally, the Respondent submitted that Mrs Gamble had shown a lack of contrition in relation to the most recent misconduct and that both her Outline of Arguments and witness statement demonstrate that Mrs Gamble does not acknowledge any wrongdoing in relation to the misconduct.

[56] The Respondent relied on the Full Bench decision in BlueScope Steel Limited v Peco Sirijovski 44 to support its contention that regard should be had to the warnings issued to Mrs Gamble.

[57] As noted at paragraph [8] above, the first and final warning letter issued to Mrs Gamble stated that “If you intend to be absent from work or if you wish to leave work early within your normal hours of work, you are to verbally inform the staffing support Administration Officer and seek the prior approval of your supervisor Jason Brack or the Coordinator Library Operations, Janet Salvatore.” The fact that two of the January 2015 instances of Mrs Gamble’s misconduct relate to her attendance at work, i.e. her leaving work some two hours early on 21 January 2105 and her late return from lunch on 27 January 2015, supports a finding that regard should be had to the first and final warning issued to Mrs Gamble.

[58] Against that background, I find that regard should be had to the first and final warning issued to Mrs Gamble.

Conclusion

[59] Drawing on the above analysis, I find that there was a valid reason for Mrs Gamble’s dismissal, that Mrs Gamble was notified of the reason and was given an opportunity to respond, that Mrs Gamble was able to seek the assistance of a support person(s) and that the first and final warning issued to Mrs Gamble is a relevant consideration. I further find that the remaining considerations in s.387 are not relevant in this matter.

[60] For all these reasons I do not consider that Mrs Gamble’s dismissal was harsh, unjust or unreasonable. Accordingly, I dismiss the application. An order to that effect will be issued in conjunction with this decision.

Appearances:

S. Gamble on her own behalf.

M. Albert of Counselfor Monash City Council T/A City of Monash.

Hearing details:

2015.

Melbourne:

June 1 and 2

 1   Exhibit A2 at Attachment AMP10

 2   Ibid at Attachment AMP12

 3   Ibid at Attachment AMP15

 4   Ibid at Attachment AMP17

 5   Exhibit G1

 6   Transcript at PN157-174

 7   Ibid at PN175-185

 8   Ibid at PN186-189

 9   Exhibit A1

 10   Transcript at PN607

 11   Ibid at PN915

 12   Ibid at PN948-949

 13   Ibid at PN963

 14   Ibid at PN1024-1026

 15   Ibid at PN1129-1130

 16   Exhibit A2

 17   Ibid at Attachment AMP5

 18   Ibid at Attachment AMP6

 19   Transcript at PN1397-1398

 20   Ibid at PN1431

 21   Exhibit A2 at Attachment AMP7

 22   Transcript at PN1563-1564

 23   Ibid at PN1580

 24   Ibid at PN1592

 25   Ibid at PN1715-1716

 26   Ibid at PN1851

 27   Ibid at PN1904

 28   Ibid at PN1919

 29   Ibid at PN1984-1994

 30   Exhibit A3

 31   Ibid at Attachment JB1

 32   Transcript at PN2289

 33   Ibid at PN514

 34   Ibid at PN540-541

 35   Ibid at PN562-567

 36   Ibid at PN577

 37   Ibid at PN578-581

 38   Print R4471

 39 (1995) 62 IR 371

 40   S4213

 41 (1999) 169 ALR 89 at 92 per Moore J

 42   AE405146

 43   Transcript at PN80

 44   [2014] FWCFB 2593

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