Sharon Gillespie v Geographe Real Estate Pty Ltd T/A LJ Hooker Geographe Bay

[2016] FWC 793

[2016] FWC 793

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sharon Gillespie
v
Geographe Real Estate Pty Ltd T/A LJ Hooker Geographe Bay
(U2015/10247)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 8 FEBRUARY 2016

Application for relief from unfair dismissal – small business fair dismissal code – reasonable belief.

[1] On 25 August 2015 Ms Gillespie lodged an application, pursuant to s.394 of the Fair Work Act 2009 (the FW Act) with respect to the termination of her employment with Geographe Real Estate Pty Ltd T/A LJ Hooker Geographe Bay (LJH).

[2] LJH raised initial jurisdictional objections to the application to the application on the basis that it asserted that Ms Gillespie’s employment did not meet the minimum employment period, and that the application was lodged outside of the 21 day time limit. LJH also asserted that it was a small business and that the termination of Ms Gillespie’s employment was consistent with the Small Business Fair Dismissal Code. The first two of these jurisdictional issues were considered and addressed in a decision 1 in which Roe C determined that the application was lodged within the statutory time limit and dismissed the LJH contention that Ms Gillespie’s employment could only be counted from the time that she commenced a new job role with LJH in November 2014. Accordingly, Ms Gillespie had completed the requisite minimum employment period. In his decision Commissioner Roe noted that there was no dispute that LJH was a small business such that the Small Business Fair Dismissal Code had application.

[3] The application was subsequently referred to me. Directions specifying material to be provided to enable consideration of the application of the Small Business Fair Dismissal Code and, if necessary, the merits of the application, were issued. The determination of the matter was delayed because LJH did not provide material consistent with those directions. The matter was ultimately the subject of a determinative conference in Busselton on 2 February 2016. In this conference Ms Gillespie was represented by her partner, Mr Sullivan and Mr Wilde, the principal of LJH appeared for LJH.

[4] Section 396 of the FW Act requires that, before the merits of the application can be considered I need to be satisfied about a range of initial matters. Commissioner Roe’s decision of 5 November 2015 has confirmed that the application was made within the requisite time period and that Ms Gillespie was a person protected from unfair dismissal. The termination of Ms Gillespie’s employment was not a case of genuine redundancy. As the parties have confirmed that LJH is a small business, I have considered the extent to which the material before me establishes that the requirements of the Small Business Fair Dismissal Code have been met.

[5] The background to the matter is that Ms Gillespie was employed by LJH from January 2013. Her employment was terminated with effect from 5 August 2015. Ms Gillespie undertook property management supervisory and business development functions for LJH. Her revised employment role was confirmed in correspondence of 24 October 2015. 2 This correspondence also confirmed the application of a Contract of Employment which is common within the Western Australian real estate industry.3 The authenticity of certain of these documents was disputed.

[6] The parties disagree over the extent to which any performance or behavioural concerns were raised with Ms Gillespie prior to the termination of her employment and also dispute the authenticity of various other documents which are relied upon by LJH.

[7] The LJH position is that when it became aware of concerns that Ms Gillespie had divulged company information to a friend who worked for a competitor real estate agency and had acted so as to deprive LJH of the opportunity to gain a sales contract, it stood her down on 23 July 2015 4 pending further investigation.

[8] Mr Wilde, Ms Gillespie and a Ms Cooper, who was Ms Gillespie’s support person, met on 4 August 2015. Whilst the parties disagree over the extent to which Ms Gillespie was requested to resign, there is no dispute that LJH alleged that she had inappropriately shared client contact information with a competitor, had not complied with company protocol relative to her rental management functions, and had assigned significant work on at least one rental property to her partner in breach of her responsibilities as an employee. The termination of Ms Gillespie’s employment was confirmed in an email to her on 5 August 2015. LJH assert that this was further confirmed through later correspondence dated 5 August 2015. Ms Gillespie disputes the receipt of the correspondence.

[9] There are three specific allegations made against Ms Gillespie. Firstly, LJH assert that Ms Gillespie communicated with, and provided information to a Ms Bannister at a competitor real estate business in relation to a property on the Bussell Highway relative to which she managed leasing arrangements. LJH asserted that this information assisted that competitor agency to gain a sales contract and that Ms Gillespie’s behaviour deprived LJH of the capacity to obtain that sales contract. The parties disagree over the circumstances of this matter and the extent to which any of Ms Gillespie’s actions were inappropriate. Secondly, LJH asserts that Ms Gillespie’s behaviour with respect to other properties (at Backwater Retreat and Marine Terrace) represented a breach of her responsibilities to LJH as her employer. Again, each of these circumstances are disputed. Thirdly, LJH asserts that Ms Gillespie acted inappropriately by referring LJH clients seeking the completion of building trades work to her partner and that this represented a conflict of interest. Whilst Ms Gillespie does not dispute that she referred various LJH clients to her partner, she asserts that this was consistent with an approved custom and practice which has continued since the termination of her employment and did not represent any form of inappropriate behaviour.

[10] Ms Gillespie asserts that the termination of her employment was inconsistent with the Small Business Fair Dismissal Code and was inherently unfair in terms of the extent to which it lacked a valid reason and was the result of a flawed process. Ms Gillespie seeks an amount of some eight weeks pay as compensation in lieu of reinstatement on the basis that she was unemployed for that period.

[11] LJH asserts that the circumstances here meet the requirements of the Small Business Fair Dismissal Code. In the alternative, LJH assert that it had a valid reason for the termination of her employment and that its process in this respect was fair.

The evidence

[12] The evidence before me is, at best contentious. The veracity of a number of documents is hotly contested. Whilst I have considered all of the evidence before me in reaching a conclusion in this matter, I have briefly summarised the witness evidence.

[13] The evidence of Ms Gillespie went to her employment with LJH and the extent to which there were limited performance or behavioural issues raised with her until 23 July 2015 when accusations about her behaviour were put to her in writing and she was stood down. Ms Gillespie was overseas on leave from 30 July 2015 but during that time corresponded with LJH relative to future meeting arrangements. Her evidence went to the meeting she attended on 4 August 2015 with Ms Cooper as her support person. Her evidence was that she was given the opportunity to resign at this meeting but requested time to consider her position. Early in the afternoon of 5 August 2015 she received an email asking her to attend a meeting that morning. A later email advised her that her employment had been terminated for gross misconduct.

[14] In terms of the specific allegations, Ms Gillespie asserts that she did not provide or disclose any confidential information relative to the Bussell Highway property and that whilst she was, and remains friends with Ms Bannister, she dealt with Ms Bannister relative to this property in an entirely appropriate and professional manner.

[15] In terms of the Backwater Retreat and Marine Terrace properties, Ms Gillespie’s evidence was that she had not disclosed any confidential information nor assisted or recommended rival agencies relative to these properties.

[16] In terms of the allegation that she had acted inappropriately to refer LJH clients to her partner for building trades work, Ms Gillespie asserts that referrals of this nature had occurred since she commenced her employment and commenced at Mr Wilde’s suggestion. Ms Gillespie asserts that property owners were made aware that Mr Sullivan was her partner and offered the option of further quotes. Further, Ms Gillespie asserts that Mr Sullivan continued to receive work orders from LJH after the termination of her employment. She asserts that Mr Sullivan met the LJH requirements to undertake this work and that she acted, relative to work referrals, in a manner consistent with the LJH requirements.

[17] Ms Cooper attended the meeting between Ms Gillespie and Mr Wilde on 4 August 2015 as Ms Gillespie’s support person. Her evidence in that meeting confirmed that Mr Wilde stated that the working relationship with Ms Gillespie was untenable and gave her an opportunity to resign. Ms Cooper confirmed that Ms Gillespie sought further time to investigate options and requested a breakdown of referral fees paid to her.

[18] Ms Bannister is a friend and former work colleague of Ms Gillespie’s. She was previously an employee of LJH but resigned in early 2015. Her evidence went to the circumstances under which she, through her current employer, obtained a sales listing for the Bussell Highway property. In this respect her evidence was that Ms Gillespie did not pass on to her any inappropriate details or information.

[19] In terms of the Backwater Retreat and Marine Terrace properties, Ms Bannister’s evidence went to confirm that she received no relevant information from Ms Gillespie.

[20] Ms Rocco’s evidence was given by telephone and confirmed her position that she had listed her house at Marine Terrace for sale with an agent from LJH but was unhappy with the LJH performance. She explained that she had subsequently relisted it with Ms Bannister. She advised that Ms Gillespie had not recommended to her that she change real estate agents.

[21] Mr Wilde’s evidence was that he was concerned about Ms Gillespie’s conduct in 2014 when Ms Bannister obtained a property search record for a property owned by Mr Sullivan using an LJH credit card. Whilst he had reservations about her behaviour, he subsequently promoted her to a Business Development Manager position. He later had concerns about her behaviour relative to another employee who he explained, made a bullying allegation against her. He had additional concerns relative to her failure to meet work performance expectations. His evidence was that both matters were addressed in written warnings given to her.

[22] Mr Wilde’s evidence was that he became particularly concerned about Ms Gillespie’s conduct after LJH lost a sale contract for the Marine Terrace property and the property owner advised him that an employee of LJH (whom she declined to name) had recommended an alternative real estate agency. Not long after that he took a phone call from another property owner (the Backwater Retreat owner) who said that Ms Gillespie had recommended that he should sell his property through Ms Bannister.

[23] Mr Wilde subsequently checked through Ms Gillespie’s email folders and identified two email chains which he asserted were evidence of serious misconduct. The first of these chains 5 was between Ms Gillespie and Ms Bannister and referenced the sale listing for the Bussell Highway property. The second related to the Marine Terrace property and involved email exchanges between Ms Gillespie, Ms Bannister and the property owner, Ms Rocco. Mr Wilde’s evidence was that he also identified that Ms Gillespie had arranged for significant repair and painting work to be done at clients’ homes by Mr Sullivan and that this was in breach of standing instructions in this respect.

[24] Mr Wilde’s evidence was that he then sought advice from “Fair Work Australia” (FWA), and that, consistent with that advice, had stood Ms Gillespie down pending an investigation. He advised that he subsequently gave her an opportunity to respond to his concerns or to resign but that as he was satisfied that the evidence demonstrated that she had defrauded the LJH business to the extent of some $36,000 he concluded that she should be summarily dismissed. He advised her of this and later confirmed it in writing.

[25] At the determinative conference Mr Wilde tabled a Small Business Fair Dismissal Code Checklist which he said he completed following the discussions he had with FWA. Mr Wilde’s evidence was that he had not provided or referred to this checklist at an earlier time because he had overlooked it until just prior to the conference.

[26] Ms Cousins is an employee of LJH. Her evidence was that, at a time she could not precisely recall, she overheard Ms Gillespie having a telephone discussion with Ms Rocco in which she recommended Ms Bannister to her. Ms Cousins did not report this to Mr Wilde until sometime after the termination of Ms Gillespie’s employment.

Findings

[27] I have set out below my findings on the many disputed issues of fact in this matter before addressing the relevant legislative considerations.

[28] In terms of those many disputed issues of fact, I explained to the parties in the determinative conference, that my findings would require findings of credit on these issues which could have implications for them given the nature of this industry. I suggested that an agreed position on the application could avoid the need for these findings of credit. Nevertheless, the parties opted to proceed with the matter.

[29] The fundamental differences in the evidence relate to the evidence of Ms Gillespie and that of Mr Wilde. Simply put, neither was a particularly impressive or credible witness. This has made the determination of these disputed facts inherently difficult.

[30] I have concluded that Ms Gillespie was not closely involved in the property title search done in 2014 relative to Mr Sullivan’s property. I am satisfied that this primarily involved Ms Bannister, who was then an employee of LJH. 6 Even more significantly, Ms Gillespie was promoted after this incident and I am not satisfied that Mr Wilde regarded her behaviour as any form of impediment to future employment.

[31] I am not persuaded that Mr Wilde inappropriately altered the contract under which Ms Gillespie was appointed to the Business Development Manager position in October 2014. The change to her contract is minimal and there is no evidence refuting that this change was instigated by Ms Gillespie. The standard contract attachment includes performance expectations for Ms Gillespie. I have concluded that Mr Wilde did raise performance concerns with her in February 2015. The written warning relative to this issue and Ms Gillespie’s own evidence supports a conclusion that the issue was raised. Ms Gillespie and Mr Wilde differ about whether a written warning was actually given to her as distinct from being placed in her file. Whilst I do not think this issue is fundamental to this matter, I am inclined to the view that the letter of 3 February 2015 7 was not given to Ms Gillespie because I think the matter would have been further pursued between the parties had this been the case.

[32] I have concluded that a former LJH employee raised concerns about Ms Gillespie's behaviour relative to a bullying allegation. I have concluded that after a meeting convened by Mr Wilde, the allegation was not further pursued and the warning letter of 7 March 2015 8 was not given to Ms Gillespie. Again, had it been given to her I think debate over that issue would have continued. Additionally, I have noted that Mr Wilde’s evidence in this respect did not support a clear recollection of the provision of that letter.

[33] When Ms Rocco advised Mr Wilde that an employee from LJH, whom she declined to name, had recommended that she should list her property with a rival agent, I have concluded that he understood that she was referring to Ms Gillespie. Mr Wilde’s evidence was to the effect that after this he was suspicious of Ms Gillespie and observed her behaviour. 9 I have concluded that when Mr Wilde was told by a property owner (the Backwater Retreat property) that Ms Gillespie had told him that he should use Ms Bannister to sell their property, this confirmed his concerns. I am not persuaded that Mr Wilde established whether this advice was provided before Ms Bannister had left LJH or after that occurred.10

[34] I have considered the email exchanges which Mr Wilde identified relating to the Bussell Highway property in the context that, firstly, LJH was the leasing manager for that property and, secondly, Ms Gillespie and Ms Bannister were communicating, at around this time in relation to trips they were both undertaking to Bali. Thirdly, the emails refer to arrangements between Ms Bannister, Ms Gillespie, Ms Cousins and a Ms Venning who was, at that time, a real estate agent with LJH, about a planned wine tour. I note that Ms Venning was the agent who had responsibility for the sale of the Marine Terrace property, that she has subsequently left LJH. Further, that later advice has indicated that it was Ms Venning who suggested to Ms Rocco as the owner of that property, that she should list that property through Ms Bannister. However, at the time that Mr Wilde considered Ms Gillespie’s emails, that information does not appear to have been available to him.

[35] The relevant elements of the email exchange between Ms Gillespie and Ms Bannister which relate to the Bussell Highway property 11 are as follows:

Ms Bannister to Ms Gillespie 8 July 2015 11.21 am: “Thank you for heads up on 112 Bussell and your kind words to the owner, another one in the bag, haha!

Ms Gillespie to Ms Bannister 8 July 2015 11:26 am: “Haha OK what did I miss or was I just a bitch lol”

Ms Bannister to Ms Gillespie 16 July 2015 9:53 am: “112 Bussell Highway is now listed!! So I was wondering if you could please inform the tenant of the following (they have been told)

Photos

Tuesday 28^th July 12.00 PM

Peter Hughes (photographer) to come and collect the key from you

Home Open

Saturday first August at 2.30-3.30 pm

Laura to collect the key?

Can you please advise tenants to try and be out of the house?”

Ms Gillespie to Ms Bannister 16 July 2015 9:57 am: “I spoke with Megan yesterday and she said she has spoken with the tenants, I will also call them and remind them. I will organise a key for you to collect (I will be away but Chantell will do).

Megan said she will be attending the property to do more gardening prior to all of this.”

Ms Gillespie to Mr Wilde 16 July 2015 10:16 am: “Carl I have just been advised by Megan the owner of this property that she has listed with Stockers for sale”

I have noted that the reference to ‘Megan’ is a reference to the property owner.

[36] Mr Wilde’s position was that this email chain was evidence of collusive activity in that Ms Gillespie assisted Ms Bannister to gain the sale listing rather than promoting LJH as the sale agent. Further, that Ms Gillespie should have advised him of the standing of the Bussell Highway property at a substantially earlier time. Mr Wilde’s position is that Ms Gillespie’s actions breached her obligations as an employee of LJH.

[37] Ms Bannister’s evidence was that she obtained the contact details for the owner of the Bussell Highway property from her new employer’s records and then initiated discussions with that owner having sold a nearby property. Ms Bannister advised that she was aware that LJH managed the leasing of the property. Ms Bannister advised 12 that Ms Gillespie did not email her before she listed that Bussell Highway property on 12 July 2015 but that she contacted Ms Gillespie after listing the property to refresh her memory of the property. Ms Bannister advised that a visit to the property was arranged through Ms Cousins who contacted the tenants and confirmed the suitability of that arrangement.13

[38] Ms Gillespie’s evidence 14 was that the reference to “heads up” in the 8 July 2015 email she received from Ms Bannister referred to the contact which Ms Gillespie had with the tenants in that property.

[39] Finally, the evidence of Ms Cousins 15 is that, after Ms Gillespie had been stood down, Mr Wilde spoke with her about her involvement in the sale listing of the Bussell Highway. Ms Cousins’ evidence at that time confirmed that she had no involvement in that listing.16 Notwithstanding this, Ms Cousins’ evidence was that she spoke with the tenants at that Bussell Highway property.

[40] All of this evidence raises questions of credibility. However, the email from Ms Bannister of 8 July 2015 refers to a “heads up” in the context of the property owner and conveys a clear impression that Ms Gillespie provided information to Ms Bannister which assisted her in gaining a sale contract. I am unable to conclude that this email could reasonably be read as referring to Ms Gillespie’s contact with the property tenants as distinct from the property owner.

[41] I have also concluded that this email exchange establishes that Ms Gillespie was aware that Ms Bannister had listed the Bussell Highway property some days before she advised Mr Wilde of this and have concluded that she was aware of the possibility of a sale listing going to Ms Bannister well before Mr Wilde was alerted to the matter.

[42] In terms of the Backwater Retreat property, I have accepted Mr Wilde’s evidence about the telephone call he received which raised a question about whether Ms Gillespie had recommended Ms Bannister to sell that property. However, the critical issue in this regard relates to when Ms Gillespie may have provided that advice, given that Ms Bannister was previously an employee of LJH. I have simply concluded that Mr Wilde did not further investigate this issue.

[43] In terms of the Marine Terrace property, I have concluded that Mr Wilde assumed that the property owner, Ms Rocco, was advised by Ms Gillespie, to utilise Ms Bannister instead of continuing to utilise the services of LJH to sell her property. The evidence of Ms Rocco was that it was Ms Venning who provided that advice to her. Simply put, I have concluded that there was no reasonable evidence confirming to Mr Wilde that Ms Gillespie’s conduct relative to the Marine Terrace property was inappropriate.

[44] Notwithstanding that, I have noted that Ms Gillespie’s emails 17 relating to the Marine Terrace property, which Mr Wilde discovered, disclosed a communication link between Ms Gillespie, Ms Bannister and Ms Rocco which could reasonably give rise to a concern on his part about the probability of inappropriate information sharing.

[45] In terms of the allegation that Ms Gillespie had breached LJH procedures and protocols by arranging for her partner, Mr Sullivan, to undertake various painting and other work on properties which she was managing, I am not satisfied that there was any reasonable basis for that concern. I have accepted that work was allocated to Mr Sullivan with Mr Wilde’s knowledge and acquiescence. Proof of inappropriate processes or of a failure on Mr Sullivan’s part to have the necessary insurance coverage has not been established to me.

[46] I have accepted that Mr Wilde stood Ms Gillespie down through the provision of a letter on 23 July 2015. 18 That letter referred to the listing for the Bussell Highway property. Mr Wilde advised that he took this step having conferred with the FWA. His evidence was that he was told that he had enough material evidence and reasons “to summarily dismiss Ms Gillespie for gross misconduct”.19 At the determinative conference on 2 February 2016 Mr Wilde’s evidence was that, whilst Ms Gillespie was on the leave after she was stood down, he completed the Small Business Fair Dismissal Code Checklist (the Checklist), but had overlooked bringing that Checklist to the attention of the FWC until he found it in the Personnel File for Ms Gillespie shortly before the determination conference. That Checklist20 is not dated. I have considered whether that Checklist was completed by Mr Wilde at some time substantially after the termination of Ms Gillespie’s employment. In considering this issue I have noted that the Checklist is completed on the basis that it refers to the termination decision having been made, but have concluded that this reflects the phraseology in the Checklist itself. I have noted that Mr Wilde has written two notes on the front of this Checklist which refer to the jurisdictional issues argued before Commissioner Roe. Whilst this indicates that the Checklist was completed some time ago, it does not enable me to conclude that it was completed whilst Ms Gillespie was suspended. I have significant doubt about the weight that can be attached to this Checklist in that it was not referred to at all by Mr Wilde before 2 February 2016 and was not provided prior to that date despite numerous requests for the provision of any documentation upon which he relied.

[47] I have concluded that Mr Wilde’s decision to terminate Ms Gillespie’s employment was made well before the meeting he had with her and Ms Cooper on 4 August 2015. That conclusion is supported by the evidence of Ms Cooper. I consider it most likely that the termination of employment letter, dated 4 August 2015 was provided to Ms Gillespie on 5 August 2015 and I have noted that this letter referred to a range of concerns but particularly the allegation that Ms Gillespie had colluded with Ms Bannister so as to deprive LJH of sales which it might otherwise have achieved. I have noted that Ms Gillespie was summarily dismissed.

The Small Business Fair Dismissal Code

[48] Section 385 of the FW Act states:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the 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.”

[49] Section 396 requires that I must decide whether the termination of Ms Gillespie’s employment was consistent with the Small Business Fair Dismissal Code before considering the merits of the application.

[50] The Small Business Fair Dismissal Code (the Code) states:

“Small Business Fair Dismissal Code

Commencement

The Small Business Fair Dismissal Code comes into operation on 1 July 2009.

Summary Dismissal

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

Other Dismissal

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

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

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

Procedural Matters

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

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

[51] Ms Gillespie was summarily dismissed. Consequently, for the termination of her employment to be consistent with the Code, I must be satisfied that LJH had a belief, based on reasonable grounds, that her conduct was sufficiently serious to justify immediate dismissal. It is not necessary that LJH establishes misconduct on the part of Ms Gillespie as the Code does not require this. In Pinawin T/A Rose Vi. Hair. Face. Body v Domingo 21 a Full Bench of the Commission stated:

“[29] …. There are two steps in the process of determining whether this aspect of the Small Business Fair Dismissal Code is satisfied. First, there needs to be a consideration whether, at the time of dismissal, the employer held a belief that the employee’s conduct was sufficiently serious to justify immediate dismissal. Secondly it is necessary to consider whether that belief was based on reasonable grounds. The second element incorporates the concept that the employer has carried out a reasonable investigation into the matter. It is not necessary to determine whether the employer was correct in the belief that it held.

[30] Acting reasonably does not require a single course of action. Different employers may approach the matter differently and form different conclusions, perhaps giving more benefit of any doubt, but still be acting reasonably. The legislation requires a consideration of whether the particular employer, in determining its course of action in relation to the employee at the time of dismissal, carried out a reasonable investigation, and reached a reasonable conclusion in all the circumstances. Those circumstances include the experience and resources of the small business employer concerned.”

[52] I have applied this approach. I note that it is also consistent with the decision of Full Benches in Steri-Flow Filtration (Aust) Pty Ltd v Erskine 22and, more recently, Lloyd & Co Pty Ltd T/A Lloyd & Co v Suttie.23

[53] I am satisfied that Mr Wilde believed, on reasonable grounds, that Ms Gillespie had colluded with Ms Bannister so as to assist Ms Bannister obtain a sale contract on the Bussell Highway property. The email of 8 July 2015 with its reference to “thanks for the heads up” and to discussions between Ms Gillespie and the property owner represents a reasonable basis for that belief. Mr Wilde’s concern about collusive activity of that nature was a legitimate concern and was consistent with the employment contract under which Ms Gillespie agrees she was engaged. The concern relative to disclosure of information to a competitor agency was a legitimate concern in that, if LJH was unable to promote itself as the sales agent to a potential vendor, it stood to lose substantial sales commissions in relation to a property which it managed for leasing. I am satisfied that this conduct is consistent with the reference to serious misconduct in the contract of employment reached between LJH and Ms Gillespie on 1 November 2014. 24 I am satisfied that Mr Wilde undertook sufficient investigation of the matter through his consideration of Ms Gillespie’s emails so as to form this reasonable belief.

[54] I reiterate that this finding does not represent a finding that Ms Gillespie actually provided information to Ms Bannister because the Code does not require that I make such a finding. It is a finding simply that there was a reasonable basis for Mr Wilde to believe that Ms Gillespie’s conduct justified immediate dismissal. I have made that finding notwithstanding significant concerns with respect to the credibility of multiple witnesses in this matter. I have relied heavily on the terms of the email of 8 July 2015 in reaching this conclusion. My findings in this respect mean that I need not reach definitive conclusions with respect to the other allegations relative to Ms Gillespie.

[55] Consequently, I consider that the termination of Ms Gillespie’s employment was consistent with the Small Business Fair Dismissal Code. As a result, that dismissal cannot then be unfair. Ms Gillespie’s application must be dismissed on this basis. An Order (PR576790) to this effect, will be issued.

Appearances:

J Sullivan representing the applicant.

C Wilde representing the respondent.

Hearing details:

2016.

Busselton:

February 2.

 1  [2015] FWC 7640

 2   Exhibit R2, Attachment E

 3   Exhibit R2, Attachment E

 4   Exhibit R2, Attachment E

 5   Exhibit R4

 6   see Ms Bannister’s evidence, Transcript 2 February 2016, 11.00 am

 7   Exhibit R11

 8   Exhibit R9

 9   see Transcript, 2 February 2016, 11.56 am

 10   see Transcript, 2 February 2016, 12.02 pm

 11   Exhibit R4

 12   see Transcript, 2 February 2016, 10.20 am

 13   see Transcript, 2 February 2016, 10.25 am

 14   see Transcript, 2 February 2016, 12.51 pm

 15   see Transcript, 2 February 2016, 10.34 am

 16   see Transcript, 2 February 2016, 10.36 am

 17   Exhibit R5

 18   Exhibit R8

 19   Statement of Mr Wilde, Exhibit R2, para 18

 20   Exhibit R16

 21   [2012] FWAFB 1359

 22   [2013] FWAFB 1943

 23   [2016] FWCFB 144

 24   Exhibit R7

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