Sophia Davis v Pilbara Community Legal Centre Inc

[2020] FWC 3942

[2020] FWC 3942

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sophia Davis
v
Pilbara Community Legal Centre Inc
(U2019/7190)

COMMISSIONER WILLIAMS PERTH, 30 JULY 2020

Termination of employment.

[1] On 31 March 2020 the Commission issued a decision rejecting the Respondent’s jurisdictional objection that the Applicant had not been terminated at the initiative of the employer. 1

[2] Private discussions between the parties were not successful in resolving the matter and consequently a further hearing was listed to determine the merit of the Applicant’s unfair dismissal remedy application.

Evidence and factual findings

[3] The Applicant had previously worked for the Respondent but that employment ended in October 2017.

[4] The Applicant commenced employment with the Respondent in Karratha in April 2018. Notwithstanding her contract of employment stated it was a fixed term contract ending on 30 June 2018 the Applicant continued to be employed beyond 30 June 2018. As the Commission found in the previous decision the Applicant’s employment continued until it was ended by an email sent to her dated 8 June 2019 by Ms Morrow the then Acting Chief Executive Officer. That email effectively gave the Applicant notice that her employment would end on 30 June 2019.

[5] The Applicant was not required to work between 8 June 2019 and 30 June 2019.

[6] The Applicant was paid until 30 June 2019.

[7] In terms of the reason for the Applicant being dismissed I accept the evidence of Ms Morrow as to why the Applicant was dismissed. This was because she had failed to attend a performance meeting to be held on 7 June 2019 which was to address issues in respect of her employment.

[8] In addition to this the employer was dissatisfied generally with the Applicant’s employment. I accept Ms Morrow’s evidence that the employer had concerns about the Applicant’s attitude and behaviour and failing to follow all the required procedures in her role including complying with data entry and reporting requirements.

[9] The evidence for example is that on 18 January 2019 an email was sent to the Applicant advising her that data needed to be up to date by 1 February 2019 for the months of October 2018 through to January 2019 inclusive and “…there will be no further extensions by funding body.”

[10] The concerns with the Applicant’s performance were expanded on with observations that the data needed to be updated daily, files were in a mess and there was no water, one of her bottom drawers has all sorts of paperwork including client documents thrown into it and one client data was entered in November 2018 but back dated all the way to June 2018.

[11] The Applicant denies any failing in this regard including saying that she was unable to enter the data daily because she was too busy.

[12] Other directions and issues were raised with the Applicant about her file management by email dated 27 November 2018.

[13] Numerous emails to staff including the Applicant stressed all the detailed requirements of file management and that failing to adhere to the new file management system would be a matter for their performance review. It was pointed out that their continued accreditation depends on passing a file audit referred to as crosscheck.

[14] The Applicant agrees she was aware that they must pass the crosscheck accreditation.

[15] The Applicant in her own evidence explains that that the Housing Department had sent a letter to the Respondent stating that she had coerced a Roebourne client into asking for another house to live in. The Applicant explains the context for this and denies any wrongdoing.

[16] The Applicant’s evidence is that she did not attend the performance management meeting on 7 June 2019 because she was away sick.

[17] The Applicant agrees that on 6 June 2019 she received an email from Ms Morrow inviting her to be available for a meeting the following day, Friday 7 June 2019 at 2.30 p.m. which stated that she was welcome to bring a support person with her if she wished. The Applicant’s evidence was that she responded asking what the meeting was about.

[18] Her evidence was that she did not receive a response and so felt ill. The next day she felt sick and could not face work so she sent an email to her supervisor saying she was sick and asking her supervisor to pass this information on. Her evidence is this was the standard procedure for when she was sick or away.

[19] The following Monday, 10 June 2019 she received an email dated 8 June 2019 from Ms Morrow stating that she had not advised she would not be attending work on the Friday nor attending to her client appointments. The Applicant says the email stated that the scheduled meeting on the Friday was to discuss a breach in code of conduct and performance issues due to late or failing to submit reports for her program and her overall work management. The email went on to say that because her contract expired on 30 June 2019 and she had not attended the meeting scheduled for Friday, 7 June 2019 she was stood down from her employment and this was to end on 30 June 2019.

[20] The Applicant’s evidence was that she was aware funding of her position was under review.

[21] The Applicant’s evidence was that in August 2018 she had been told that funding for her position would be available for the next financial year.

[22] Ms Morrow’s evidence which I accept was that due to the Applicant’s failure to keep accurate data and meet the required reporting requirements of the Department of Communications the program for which her position had been funded was reduced to 0.5 of a full-time equivalent from 1 July 2019.

[23] The Applicant’s submission was that her annual income was $67,896. 2

[24] Ms Morrow is now the Chairperson of the Respondent and is no longer the Acting Chief Executive Officer.

The legislation

[25] Section 387 of the Fair Work Act 2009 (the Act) prescribes the matters the Commission must take into account when determining whether an employee has been unfairly dismissed. This is set out below.

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

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

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

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

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.”

Consideration

Valid reason

[26] It should be remembered the reality was the Respondent believed erroneously that the Applicant’s period of employment expired by virtue of the effluxion of time at the end of June 2019.

[27] There is no doubt on the evidence however that the Respondent was sufficiently dissatisfied with the Applicant’s performance and behaviour that it arranged to have a formal performance management discussion with her which was sufficiently serious that she was invited to have a support person present.

[28] Because of the Applicant being absent and the Respondent’s decision to “stand down” the Applicant the scheduled performance management meeting never occurred.

[29] The Applicant for her part denies any lack of performance or wrongdoing.

[30] The Respondent has not provided evidence from witnesses involved in dealing with the Applicant through her period of employment to prove on the balance of probabilities that her performance and behaviour was sufficiently unsatisfactory that it was a valid reason for her dismissal.

[31] Consequently, I cannot be satisfied on the evidence that there was a valid reason for the Applicant’s dismissal notwithstanding this clearly was the Respondent’s view at the time the employment ended.

Notification of the reasons for dismissal

[32] The Applicant was not notified of the reasons for her dismissal because the Respondent chose to act on its belief that the employment was ending on 30 June 2019.

Opportunity to respond

[33] In the circumstances of how the employment ended no opportunity was given for the Applicant to respond to the reasons for which she was dismissed.

Refusal of a support person

[34] The Respondent at no time refused the Applicant a support person.

Unsatisfactory performance warnings

[35] Whilst there is evidence of significant dissatisfaction with the Applicant’s performance the evidence does not show that warnings about unsatisfactory performance were given.

Size of the employer’s enterprise and presence of human resource management specialists or expertise

[36] The Respondent employed only 28 employees and there is no evidence at the time it had human resource management specialists or expertise.

Other matters

[37] The Applicant had been employed for 14 months with the Respondent.

Conclusion

[38] Considering all of the above matters I am satisfied that the dismissal of the Applicant was unreasonable and so she has been unfairly dismissed.

Remedy

[39] In this instance I am satisfied that reinstatement of the Applicant would not be appropriate but rather an award of compensation should be made.

[40] Whilst I accept the Respondent’s submission that there has been a significant loss of funding recently there is not sufficient evidence to conclude that an order of compensation in this case would impact on the viability of the Respondent.

[41] The Applicant had been employed for 14 months.

[42] If the Applicant had not been dismissed when she was it is reasonable to believe that the Respondent would have continued with the performance management meeting that it had intended to hold with her.

[43] Whilst the Applicant denies her performance was unsatisfactory or that she had behaved wrongly in any way there is sufficient evidence to show her employer held quite a different and quite a negative view of her performance and behaviour.

[44] My view is that what likely would have occurred had she not been dismissed would have been a process of formal performance management with a sequence of warnings and then time for the Applicant to improve her performance and/or behaviour to meet the employer’s expectations.

[45] My conclusion is that ultimately the Applicant’s employment would not have continued longer than 12 weeks from 30 June 2019 had she not been dismissed when she was.

[46] The Applicant’s annual remuneration was $67,896 equating to $1305.70 per week. However, I have accepted the evidence that from 1 July 2019 the role the Applicant was occupying was no longer full-time but became 0.5 of a full-time equivalent. Consequently, if she had remained in employment in this role her weekly income would have been reduced to $652.85 per week.

[47] Consequently, the amount of remuneration she would have received, or would have been likely to receive, had she had not been dismissed was $652.85 x 12 weeks making a total of $7,834.20 gross.

[48] Consequently, I will order [PR721328] the Respondent to pay the Applicant an amount of $7,834.20 from which usual tax will be deducted within 21 days.

Appearances:

P. Mullally of WorkClaims Australia for the Applicant.
S. Morrow on behalf of the Respondent.

Hearing details:

2020.
Perth (by Telephone):
June 3.

Printed by authority of the Commonwealth Government Printer

<PR721327>

 1   [2020] FWC 1623.

 2   Applicant’s submissions dated 12 May 2020 at paragraph 29, FWC Court Book at page 64.