Terry Gawne v Nardy House Incorporated
[2019] FWC 6492
•18 SEPTEMBER 2019
| [2019] FWC 6492 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Terry Gawne
v
Nardy House Incorporated
(U2019/504)
DEPUTY PRESIDENT DEAN | SYDNEY, 18 SEPTEMBER 2019 |
Application for an unfair dismissal remedy – dismissal harsh – compensation ordered
[1] Mr Gawne was employed by Nardy House Incorporated (NHI) from September 2014 as a Community Service Worker (CSW) until he was dismissed on 14 January 2019.
[2] On 16 January 2019 the Australian Municipal, Administrative, Clerical and Services Union (ASU) made an application pursuant to s.394 of the Fair Work Act 2009 on behalf of Mr Gawne seeking relief for his alleged unfair dismissed by NHI.
[3] The application was heard on 22 and 23 May 2019 in Bega, NSW. At the hearing, Mr Gawne appeared on his own behalf and Mr S Ross appeared, with permission, for NHI. Oral evidence was given by Mr Gawne and Ms D Redmond, CEO of NHI.
Background
[4] NHI provides care and accommodation in Bega, New South Wales, for people with severe disabilities. It is a non-profit organisation and a registered charity.
[5] Mr Gawne’s duties as a CSW included food preparation, attending to the personal care of the residents and administering medication. His employment was subject to the Nardy House Inc. Policies and Procedures Manuals (Annexure DR 2 to Exhibit 4).
[6] In or about 2017, Ms J McGregor was appointed as the Care Service Manager. Ms McGregor is a registered nurse, and in her role is required to manage all staff and ensure the standards of clinical governance are met. There is no dispute that Ms McGregor was the immediate manager of Mr Gawne and was responsible for the control and direction of his duties.
[7] Ms McGregor took issue with Mr Gawne’s food handling practices, and her concerns were raised on different occasions, both orally and in writing. I will deal with those matters in greater detail later in this decision. Ms McGregor also made complaints about Mr Gawne’s behaviour which she characterised as ‘argumentative’ and ‘belligerent’.
[8] On 26 November 2018, Ms McGregor wrote to Mr Gawne about an incident that occurred earlier that day. The letter indicates that Ms McGregor observed Mr Gawne eat from a cutting board whilst cutting up food, and that she was of the view that Mr Gawne had failed to follow the safe food preparation guidelines. The letter acknowledged Mr Gawne’s claim of being harassed by Ms McGregor. Mr Gawne was advised to contact NHI’s Employment Assistance Programme (EAP) Officer about his harassment claim. The letter also alluded to a possible show cause meeting regarding his continued employment if he ‘did not change’.
[9] Subsequent to the incident, Mr Gawne took stress leave for a week between 4 and 11 December 2018. During this time, Mr Gawne made a formal complaint against Ms McGregor on 7 December 2018 for bullying and harassment.
[10] As a result of Mr Gawne’s complaint, Ms Redmond, CEO of NHI, sent an email to Mr Gawne on 11 December 2018. In that email, Ms Redmond noted that Mr Gawne ought to have reported instances of being harassed and bullied as they occurred rather than after a third and final warning, and that the requirement of immediate reporting is mandatory NHI policy. Ms Redmond went on to ask Mr Gawne if he was prepared to revisit Safety Food Handling training, and if he was prepared to see NHI’s EAP officer to discuss his ‘concerns’. Mr Gawne was told that he would not be able to work until he met with the EAP officer.
[11] On 12 December 2019, Ms Clark of the ASU wrote to Ms Redmond on behalf of Mr Gawne, stating that it was not appropriate for NHI to request Mr Gawne talk to a psychologist about his bullying complaint. Ms Clark asserted that NHI failed in its duty of care to investigate Mr Gawne’s bullying and harassment complaint. Ms Clark requested an independent and qualified mediator be appointed to conduct mediation between Mr Gawne and Ms McGregor, but that request was declined by Ms Redmond.
[12] On 14 December 2018 a meeting was held between Mr Gawne and Ms Redmond, with Mr Gawne and the ASU attending by telephone.
[13] Following this telephone meeting, Ms Redmond wrote to Mr Gawne on 6 January 2019 to advise that NHI was considering the termination of his employment. Mr Gawne was suspended with pay pending a final decision.
[14] On 11 January 2019 Mr Gawne attended a show cause meeting. He was subsequently terminated by letter (the Termination Letter) dated 14 January 2019, with immediate effect and with payment in lieu of notice.
[15] NHI says that the reasons for dismissing Mr Gawne related solely to his deficient food handling practices. In this regard, NHI said Mr Gawne was aware of the requirements relating to food safety and he had received multiple warnings and had been counselled in this regard. NHI says that Mr Gawne was afforded an opportunity to respond and the dismissal was justified. He was notified of his dismissal on 14 January 2019 with immediate effect and with payment in lieu of notice.
[16] Mr Gawne disputes the reasons advanced by NHI to justify the dismissal and contends that the process leading to his dismissal lacked procedural fairness.
Issues arising regarding food handling
The Frozen Food Incident – 4 April 2018
[17] NHI say that on 4 April 2018, Mr Gawne was observed by Ms McGregor putting frozen meat in a sink of dishwashing water to thaw. Mr Gawne’s evidence was that the frozen food was sealed in a hermetically prepacked container and that the water in the sink was not dirty. He said he removed the food from the sink after being told by Ms McGregor to do so and she jokingly said to him ‘fifty lashes for you, Terry’.
[18] Mr Gawne denied having received any warning about the incident. It was raised with him as a warning some 8 months later. Mr Gawne gave evidence that Ms McGregor allowed the meat to be served to residents.
Food Preparation - 31 October 2018
[19] In a letter dated 31 October 2018 headed ‘Pertaining to issues with roster and Food Preparation at Nardy House’, Ms McGregor set out the requirements for the eating and drinking plans of the residents and pointed out that Mr Gawne did not follow the prescribed plans and that the food prepared by him did not meet the necessary requirements.
[20] The letter states under the heading ‘Food Preparation’ the following:
“All residents at Nardy house have Eating and Drinking plans. They are available in the kitchen area and have been in place for some time. These descriptors are in their care plans and care summaries which have always been in place at Nardy house.
The eating and drinking plans also have further information made available in them and we have had a considerable amount circulated and discussed at tool box hand over and read and sign materials. On the wall in the next to the jug are photos of the consistency of food according to dietary guidelines.
The meal you prepared last night Terry does not fit the meal plans as requested for our residence and is not in keeping with the education material provided.
You originally responded that you cook the same meal all the time and the residents like the meal and have no problems with it. Your statement is extremely disturbing because it tells me you have been consistently ignoring these guidelines and providing care outside them to our residents. You have been operating against therapeutic guidelines and outside your scope of practice. You have not been providing care with due diligence. You offered certain resolves to change the consistency of the meal. You stated you would moisten it with cream. [Resident A] has dietary recommendations that include high fibre and low fat. Included in the material and descriptors for [Resident A] is a description of his swallowing pattern indicating he does not chew and yet throughout the stir fry in the work were whole green peas that had I presume come from the freezer. There are not part of a moist and minced diet and not recommended. Whole lentil does not satisfy the descriptor of mashed baked beans. The linguine was al dente. The food you were providing did not fit the descriptor of moist and minced.
[Resident B] has pureed food or very soft food moistened and cut up. Once again the meal was not able to satisfy this category.
… So Terry please observe the following
• Follow dietary guidelines for all residents and refrain from decision making that is outside of these guidelines. You are out of your scope of practice and you are not acting with Due Diligence.
• On Tuesday afternoons do not enter the kitchen until the music activity is complete. You have been directed to do this before and yesterday you failed to comply with previous direction.
• Maintain appropriate meals for the residents as a priority and feel free to create something simple for yourself and other staff from the provided household stores. Left overs are to be labelled appropriately and returned to the fridge or freezers
• Please redo your food handling certificate. This can be done online. I noted the food you produced last night sat on the stove top for some time. It would have been out of the ‘safe temperature’ range and this is a risk factor to [Resident C] because of her immunity and status as a vulnerable person.
If you require further clarification of anything I have raised her [sic] Terry please contact me and we will make a time to discuss your concerns.”
[21] In an email to Ms McGregor on 2 November 2018, Mr Gawne responded to the matters relating to rosters but did not otherwise respond to any of the other issues raised about food preparation.
The Broccoli Incident - 26 November 2019
[22] The incident which led to the dismissal of Mr Gawne occurred on 26 November 2018.
[23] Mr Gawne’s evidence was that he began preparing lunch for a resident and was cutting up finger food. He finished preparing the resident’s meal and placed it on the other side of the counter. When he picked up the knife and cutting board, he put a small piece of broccoli from the cutting board into his mouth. As he did that, Ms McGregor, in a raised voice and in front of three other staff, accused him of contaminating the resident’s food. He told Ms McGregor that he had finished preparing the meal and that it was on the other side of the bench. Ms McGregor again in a raised voice complained that he had contaminated the food and directed him to wash his hands. Some further exchanges followed and he was asked to attend in Ms McGregor’s office. He went to the office and had Ms J Bussing, a co-worker, present as a support person.
[24] Mr Gawne said that he was told by Ms McGregor at that meeting that he was constantly being belligerent. He later went back to the kitchen and asked Ms Bussing to show Ms McGregor the meal that he had prepared for the resident. He was again asked to go to Ms McGregor’s office where he was told by her that the meal was completely unsuitable.
[25] Mr Gawne said that he received a warning letter the following day and was not given any opportunity to respond.
Evidence
Mr Gawne
[26] Mr Gawne gave evidence that he has worked in his field for nearly twenty five years and that prior to working with Ms McGregor he had never had one verbal warning or incident report from any employer.
[27] Mr Gawne disputed all the allegations made against him. In relation to the letter about food preparation, Mr Gawne said that all the meals he prepared for the three residents were ‘healthy and nutritious’ and were in accordance with dietary and textural needs. He said that all clients liked and finished their meals without any problems. He asserted that Ms McGregor was in no position to judge their suitability as she left the premises at 5.30 pm and the meals were not served until 6 pm and her accusations therefore lacked veracity.
[28] As to the Broccoli Incident 26 November 2018, Mr Gawne said that Ms McGregor made false allegations against him and he was not afforded any opportunity to respond.
[29] In his oral evidence, Mr Gawne referred to alleged persistent targeting by Ms McGregor against him and her wilful misinterpretation of his actions and deeds. Mr Gawne claimed that he took pride in his work standard and had never had a problem preparing food.
[30] Mr Gawne pointed to an alleged lack of due process for all the warnings he received. In that regard, he said: “I would receive the warning letter the next morning without any consultation, without even being aware that I had done something not up to her standards, as she saw it, and that would be presented as a letter of warning to me so there was no timeframe or conciliation or mediation or advice to get more training … there was no due process, I was given no access to defend myself or … to respond to it or have a witness in any consultation. I would be observed by Jane McGregor, she would write a letter, she would send it to Denise Redmond, Denise Redmond would concur with her, it would be rubber stamped and it would sent back to me the next day and that would formulate my official warning.” 1
[31] In cross examination, Mr Gawne conceded that NHI has a number of policies and procedures within the workplace of which he was familiar, and which related to client safety and good work practice. 2 He agreed that he had received NHI’s Code of Conduct and Ethics3 and was provided with the NHI Staff Induction Package when he commenced employment4.
[32] He said he was not aware that all staff members were asked to redo the Food Handling Certificate in May 2018 as he was on leave and overseas at the time. 5
Ms Redmond
[33] Ms Redmond gave oral evidence and submitted a witness statement in support of NHI’s case.
[34] She is the CEO of NHI and works two days per week, mostly working from home. According to Ms Redmond, she was a member of the advisory team that worked with the NSW Department of Aging Disability and Homecare to establish NHI. Ms Redmond said that the Department also assisted NHI to refine its Policies and Procedures and modify its Governance Policies.
[35] Ms Redmond has been delegated responsibility for employment matters by the Board and is assisted by a sub-committee of the Board comprising two voluntary Board members.
[36] Ms Redmond stated that all employees of NHI are provided with extensive induction information and are required to read the NHI Code of Conduct and Ethics and the Statement of Disability Rights.
[37] Ms Redmond said that the introduction of the NDIS and the associated requirements ‘did lead to staff disruption and staff disharmony’. She said that a number of new practices were required to be introduced and in particular the clinical standards at NHI had to be improved. The changed work practices were discussed many times at staff meetings.
[38] She gave evidence that: “The burden of introducing this change, especially that related to addressing deficiencies in clinical practice, fell upon the newly appointed Care Manager, Jane McGregor. In my opinion Nardy House staff members as a whole did not adapt well to the changes and this resulted in behaviours outside accepted workplace protocols. While [Mr Gawne] did exhibit some of these behaviours, that is not the reason he was terminated.”
[39] Ms Redmond said that NHI has a policy of mandatory reporting of all incidents so as to protect the residents and even minor incidents must be reported to the Service Manager as soon as they occur. For an incident involving the Service Manager, or where staff members feel uncomfortable reporting to the Service Manager, they can report the matter to her. Mr Gawne had no trouble reporting matters to her and had done so on many occasions.
[40] Ms Redmond said that an extensive process was undertaken by NHI in an attempt to have Mr Gawne acknowledge his poor practices and to improve them to an acceptable standard. This process included training, informal discussions and several warnings.
[41] Ms Redmond emphasised that food handling is of crucial importance to the care given by NHI and incorrect procedure can result in the death of its residents.
[42] Ms Redmond said that prior to the decision to dismiss Mr Gawne, she asked Ms McGregor to provide her with relevant memos and incident reports and also to obtain short statements from any staff who may have witnessed any of the incidents involving Mr Gawne.
[43] Mr Gawne was provided with an opportunity to respond to matters raised with him. At the show cause meeting on 11 January 2019 Mr Gawne was accompanied by a support person and was also represented by the ASU.
[44] Ms Redmond said that at the time of the show cause meeting she made no final decision regarding Mr Gawne’s ongoing employment. However, she formed the view that there were inherent problems with Mr Gawne’s responses at the meeting which rendered his employment untenable. The matters which gave rise to concerns included:
a. Mr Gawne did not appear to accept that his actions placed NHI’s residents in danger;
b. He appeared to be willing to continue to challenge directives of the Service Manager and other team leader RNs in circumstances where the Service Manager is charged with running the House on a day to day basis and needs to be able to give reasonable directives without constant challenge.
c. The fact that Ms McGregor is a registered nurse of long experience and expertise in care management and makes decision related to all residents’ nutrition and care.
d. NHI’s residents are extremely vulnerable and NHI is overseen and answerable to various bodies and all of its documents and care notes are supplied to those bodies in the event of a critical incident. Mr Gawne’s actions could have involved NHI in multiple critical incidents.
e. Food handling rules must be adhered to and errors corrected and dealt with to satisfy the legislative requirements and keep clients safe. Staff members have to follow team leader directives and they have to be prepared to accept the responsibility for the decisions they make. Mr Gawne’s food handling procedures were questionable, they were questioned, they were not denied but they were also not corrected.
f. Staff are expected to adhere to reasonable managerial directives.
g. Staff are not to argue with the Service Manager and should contact the CEO directly to discuss any concerns related to what they believe are faulty directions.
[45] Ms Redmond said that it was after she had a discussion with the Board Chairperson that the decision was reached to dismiss Mr Gawne.
[46] In cross examination, Ms Redmond conceded that she had no direct knowledge of the incidents relevant to Mr Gawne’s food handling practices and was not aware if Ms McGregor was present when the food prepared by Mr Gawne was served to the residents.
Other matters related to evidence
[47] Ms McGregor was not called to give evidence. Mr Ross submitted that I should draw no inference that her attendance would not have assisted NHI’s case. Ms Redmond and Ms McGregor work closely together in a small organisation and Ms Redmond was fully aware of all matters concerning Mr Gawne that are relevant to my consideration. In this regard I have not drawn any inference that her evidence would not have assisted NHI’s case. On the contrary, in all likelihood it would have significantly assisted NHI. I am, however, only able to make a decision based on the evidence before me. To the extent Mr Gawne has given evidence about events that is contrary to the information Ms Redmond received from Ms McGregor, I prefer Mr Gawne’s evidence.
Submissions
Mr Gawne
[48] Mr Gawne disputed the veracity of all claims put against him. He submitted that he was targeted by Ms McGregor and did not get any support from Ms Redmond as she would always support Ms McGregor. He denied his food handling practices were deficient. The allegations made against him were untrue and were not properly investigated.
NHI
[49] Mr Ross submitted that the evidence showed that there was plenty of support from the organisation for its employees to manage the handling of food correctly. There are policies and procedures, memos in the workplace, and requirements to do certificates. Mr Gawne had conceded that he was aware of the procedures regarding food handling and the procedures to raise issues within the workplace. 6
[50] Mr Ross contended that: “A piece of broccoli may seem trite, or the washing of his hands may seem trite but when compared with the potential for death of residents, which is the reality of it, they are not trite. They are very serious.” 7
[51] It was submitted that Mr Gawne has been subjected to a fair process, including the opportunity to respond. He had been notified of the reasons for his termination and was invited to the show cause meeting prior to a decision being made.
[52] It was submitted that NHI is a small and ‘under-resourced’ employer and does not have dedicated human resources staff.
Consideration
Protection from Unfair Dismissal
[53] There is no dispute and I am satisfied that Mr Gawne is a person protected from unfair dismissal by virtue of s.382 of the Act.
[54] I will now consider if the dismissal of Mr Gawne was unfair within the meaning of the Act.
Was the dismissal unfair?
[55] A dismissal is unfair if the Commission is satisfied on the evidence before it that the circumstances set out at s.385 of the Act existed. Section 385 provides the following:
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.
[56] There is no dispute that Mr Gawne was dismissed and that subsections (c) and (d) do not apply.
Was the dismissal harsh, unjust or unreasonable?
[57] The criteria the Commission must take into account when assessing whether the dismissal was harsh, unjust or unreasonable are set out at s.387 of the Act:
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.
[58] The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd8as follows:
‘... It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.’
[59] I am required to consider each of these criteria in reaching my conclusion9, which I now do.
Valid reason - s.387(a)
[60] The meaning of ‘valid reason’ in s.387(a) is drawn from the judgement of Northrop J in Selvachandran v Peteron Plastics Pty Ltd10. This meaning has been applied by this Commission and its predecessors for many years:
‘…, the adjective ‘valid’ should be given the meaning of sound, defensible or well-founded. 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 reasons 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 treated fairly, ...’11
[61] In other words, the reasons should be justifiable on an objective analysis of the relevant facts.
[62] There is no mandate for giving the ‘valid reason’ criterion any greater emphasis or weight than any of the other criteria in s 387. It is well settled that the statutory requirement to ‘have regard to’ or ‘ take into account’ requires the Commission to give the matter(s) weight as a fundamental element in the decision making process. Even if it is found that there was a valid reason for the dismissal, an overall assessment must be made as to whether the dismissal was harsh, unjust or unreasonable.
[63] The significance of breaches of employer policies in the context of a consideration of whether there was a valid reason for dismissal was discussed by the Full Bench majority in B, C and D v Australian Postal Corporation T/A Australia Post as follows 12:
“[35]... as indicated by Northrop J in Selvachandran, “valid reason” is assessed from the perspective of the employer and by reference to the acts or omissions that constitute the alleged misconduct, on which the employer relied, considered in isolation from the broader context in which they occurred. It is the reason of the employer, assessed from the perspective of the employer that must be a “valid reason” where “valid” has its ordinary meaning of “sound, defensible or well founded”. As Northrop J noted, the requirement for a “valid reason” should not impose a severe barrier to the right of an employer to dismiss an employee.
[36] A failure to comply with a lawful and reasonable policy is a breach of the fundamental term of the contract of employment that obliges employees to comply with the lawful and reasonable directions of the employer. In this way, a substantial and wilful breach of a policy will often, if not usually, constitute a “valid reason” for dismissal.”
[64] For the reasons set out below, while finely balanced, I am not satisfied overall that there was a valid reason for Mr Gawne’s dismissal.
[65] In this case, Mr Gawne was dismissed after NHI formed a view that his food handling practices were deficient, and he did not have the capacity to perform his role in a manner which met the reasonable expectations of NHI in the light of its duty of care to residents. NHI relied on the Frozen Food Incident, the letter about food preparation dated 31 October 2018, and the Broccoli Incident.
[66] In relation to the Frozen Food incident, Mr Gawne did not deny that he placed some frozen meat in the sink containing water which had been used for dishwashing. He claimed that he was not given any warning and therefore the incident could not form a basis for his dismissal. It was Mr Gawne’s evidence that Ms McGregor directed him to remove the meat from the sink and instructed him on how defrosting should be done (put in a stainless steel bowl with tepid water). I accept his evidence that at the time, Ms McGregor said jokingly to him ‘fifty lashes for you, Terry’. I also accept that Mr Gawne was not made aware that this was considered a warning until some 8 months later. Further, I accept Mr Gawne’s evidence that Ms McGregor allowed him to serve the meat to residents. Had it been the case that Ms McGregor had a genuine and serious concern as to the safety of the residents, they clearly should not have been allowed to consume the meat in those circumstances. I do not accept that this incident could properly form part of a valid reason for Mr Gawne’s dismissal.
[67] I accept that the issues relating to food preparation raised by Ms McGregor in the letter of 31 October 2018 were set out at length, including details of the non-compliance and her prior discussions with Mr Gawne and his responses. Ms McGregor also drew Mr Gawne’s attention to matters such as adherence to the dietary guidelines for all residents and provided guidance including a requirement for him to attend training.
[68] As to the Broccoli Incident, I accept Mr Gawne’s evidence that he consumed a piece of broccoli after he finished preparing the resident’s meal and did not contaminate the food which he had already prepared for the resident. The incident, in my view, does not constitute a valid reason to reprimand Mr Gawne.
[69] On the material before me it is evident that friction arose between Mr Gawne and Ms McGregor when she raised issues with Mr Gawne about his food handling procedures. Given her accountability for the residents of NHI, she was not only entitled to do so but, indeed, was obliged to where she had genuine concerns about non-compliance with standards and procedures laid down for the safety of residents.
[70] I accept Mr Gawne was frustrated given his perception that he had been constantly scrutinised and under attack. However, given his role involving preparing food for people who were profoundly ill and vulnerable, and where food safety was of paramount importance, I do not consider it unreasonable for Ms McGregor to exercise caution and closely scrutinise her staff’s food handling practices. The need to constantly instruct staff on food safety issues was no doubt unpopular with the staff, including Mr Gawne.
[71] There is evidence that Mr Gawne had for some time been asked by Ms McGregor, and again by Ms Redmond, to attend training which involved obtaining a food handling certificate by completing an online course. Mr Gawne refused on the basis that he had already obtained such a certificate in 2017 and that he considered this request by Ms McGregor was unreasonable and was a bullying act on her part. In my view, the direction to undertake training was both lawful and reasonable in Mr Gawne’s circumstances. I note he did eventually undertake the online course prior to his dismissal.
[72] As to Mr Gawne’s claim that there was no grievance policy available to him, Mr Gawne was a union delegate and appeared to have a good understanding about his rights, and had no difficulty obtaining assistance from his union.
[73] Weighing up all the circumstances of this matter, I find that there was no valid reason for Mr Gawne’s dismissal. The two key incidents (the Frozen Food Incident and the Broccoli Incident) relied upon by NHI were not sufficient to establish a valid reason for the dismissal.
Notification of the valid reason and opportunity to respond - s.387(b) and (c)
[74] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made,13 in explicit terms14 and in plain and clear terms.15 In Crozier v Palazzo Corporation Pty Ltd16 a Full Bench of the Australian Industrial Relations Commission dealing with similar provision of the Workplace Relations Act 1996 stated the following:
“[73] As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.”17
[75] An employee protected from unfair dismissal must also be provided with an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the person. Such requirement will be satisfied where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern. 18 This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality.19
[76] The requirement to notify of the reason, together with the requirement to provide an opportunity to respond to the reason, involves consideration of whether procedural fairness was afforded to Mr Gawne before his dismissal was effected.
[77] Mr Gawne claims that there was a lack of due process in that he was not afforded an opportunity to respond, however the evidence demonstrates otherwise. Mr Gawne provided written responses to each of the letters written by Ms McGregor (13 June, 31 October and 26 November). Each of Mr Gawne’s responses received a reply from Ms McGregor or Ms Redmond, notwithstanding those responses did not meet with Mr Gawne’s satisfaction.
[78] On the evidence before me, I am satisfied that Mr Gawne was notified of the reason for his dismissal relating to his unsafe food handling practices. He was given an opportunity to respond to the allegations at two meetings, on 19 December 2018 and 11 January 2019.
Unreasonable refusal by the employer to allow a support person - s.387(d)
[79] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, the employer should not unreasonably refuse that person being present.
[80] There is no dispute that Mr Gawne was provided with the opportunity to have a support person. He was represented by the ASU throughout the process prior to his dismissal.
Warnings regarding unsatisfactory performance - s.387(e)
[81] A warning for the purposes of s.387(e) must clearly identify:
(a) the areas of deficiency in the employee’s performance;
(b) the assistance or training that might be provided;
(c) the standards required; and
(d) a reasonable timeframe within which the employee is required to meet such standards.20
[82] The warning must also “make it clear that the employee’s employment is at risk unless the performance issue identified is addressed.”21
[83] I am satisfied on the evidence that Mr Gawne was given a warning regarding his capacity to perform his duties to the required standard. It involved deficiency in his food handling practices and his unwillingness to follow directives to ensure that safety standards and requirements are met.
[84] I am further satisfied that Mr Gawne was informed that he was at risk of being dismissed.
Impact of the size of the Respondent on procedures followed (s.387(f)), and the absence of dedicated human resources management specialist/expertise on procedures followed (s.387(g))
[85] There is no dispute that NHI is a relatively small charity and does not employ any human resources staff. I accept that NHI used its best efforts with the limited resources it had available to it, and relies heavily on a volunteer Board to assist with the management of its operations.
Other relevant matters - s.387(h)
[86] Section 387(h) of the Act provides the Commission with a broad scope to consider any other matters it considers relevant.
[87] I have taken account of the nature and size of NHI and in particular that it is managed by a volunteer board. I have also considered that Bega is in a regional area with a relatively high unemployment rate.
[88] I have also taken into account that Mr Gawne continued to challenge not only Ms McGregor’s directions but also those of Ms Redmond.
[89] Having considered each of the matters specified in s.387 of the Act and for the reasons set out above, I am satisfied that the dismissal of Mr Gawne was harsh. It was harsh because his performance did not warrant dismissal in the circumstances outlined.
Remedy
[90] Having found that Mr Gawne was protected from unfair dismissal, and that his dismissal was harsh, it is necessary to consider what, if any, remedy should be granted to him. Mr Gawne seeks the remedy of compensation.
[91] Under section 390(3) of the Act, I must not order the payment of compensation to Mr Gawne unless:
a. I am satisfied that reinstatement is inappropriate; and
b. I consider an order for payment of compensation is appropriate in all the circumstances of the case.
[92] In this case, I am satisfied that reinstatement is inappropriate. There is clearly a level of animosity between Mr Gawne and Ms McGregor that would make working together in a productive manner impracticable.
[93] Section 392(2) of the Act requires all of the circumstances of the case to be taken into account when determining an amount to be paid as compensation including:
(a) the effect of the order on the viability of NHI;
(b) the length of Mr Gawne’s service;
(c) the remuneration that Mr Gawne would have received, or would have been likely to receive, if he had not been dismissed;
(d) the efforts of Mr Gawne (if any) to mitigate the loss suffered by him because of the dismissal;
(e) the amount of any remuneration earned by Mr Gawne from employment or other work during the period between the dismissal and the making of the order for compensation;
(f) the amount of any income reasonably likely to be so earned by Mr Gawne during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that the Commission considers relevant.
[94] In determining an amount to be paid as compensation, and as was noted by a Full Bench, “[t]he well-established approach to the assessment of compensation under s.392 of the FW Act… is to apply the “Sprigg formula” derived from the Australian Industrial Relations Commission Full Bench decision in Sprigg v Paul’s Licensed Festival Supermarket (Sprigg). 22 This approach was articulated in the context of the FW Act in Bowden v Ottrey Homes Cobram and District Retirement Villages23.”
Step 1: Estimate the remuneration the Applicant would have received, or have been likely to have received, if the employer had not terminated the employment (remuneration lost).
Step 2: Deduct monies earned since termination.
Step 3: Discount the remaining amount for contingencies.
Step 4: Calculate the impact of taxation to ensure that the employee receives the actual amount he or she would have received if they had continued in their employment.
Remuneration received, or likely to be received (s392(2)(c))
[95] While the evidence in this regard is limited, I consider that it is likely that Mr Gawne’s employment would not have continued for a lengthy period, given NHI’s dissatisfaction with his food handling practices and meal preparation, and because of the animosity between him and Ms McGregor. While there is clearly an element of speculation in determining specifically how long Mr Gawne would have remained employed at NHI, I consider it would not have been longer than another ten weeks.
Remuneration earned and income likely to be earned (s392(2)(e) and (f))
[96] Mr Gawne gave evidence that he had not earned any other remuneration during the period between the dismissal and the date of the hearing. There is no evidence of any earnings after that period.
[97] There is no evidence as to any income likely to be earned by Mr Gawne during the period between the making of the order for compensation and the actual compensation.
Length of service (s392(b))
[98] Mr Gawne was employed initially as a casual employee from September 2014, and was a part time employee from September 2015 until his dismissal in January 2019. This is a relatively short period of employment, and I consider it does not support reducing or increasing the amount of compensation ordered.
Viability (s392(a))
[99] There is no evidence before me as to the effect of an order for compensation might have on the viability of NHI, although I note again it is a small employer managed by a voluntary board, and is a registered charity. Overall this favours the determination of a lesser amount of compensation. Accordingly, I adjust the amount of compensation by a reduction of two weeks’ pay.
Mitigation efforts (s392(d))
[100] Mr Gawne gave evidence that he made efforts to mitigate his loss by applying for other employment, however as at the date of the hearing, he had been unsuccessful in obtaining alternative employment. I do not consider it appropriate to reduce the amount of compensation otherwise calculated for this factor.
Other relevant matters (s392(g))
[101] There are no other matters relevant to this consideration. Specifically, I do not consider it necessary to discount or increase the amount for ‘contingencies’. This step is a means of taking into account the possibility that the occurrence of contingencies to which Mr Gawne was subject might have brought about some change in earning capacity or earnings.
Shock, distress etc (s392(4))
[102] The amount of compensation does not include a component for shock, humiliation or distress.
Compensation cap (s392(5) and (6)
[103] The amount of eight weeks’ pay is less than the amount of remuneration Mr Gawne was entitled in his employment with NHI during the 26 weeks immediately before the dismissal. I am satisfied there is no basis to reduce the amount by reason of s 392(5) of the Act.
Conclusion
[104] In my view, the application of the Sprigg formula does not yield an amount that is clearly excessive or inadequate.
[105] For the reasons outlined above, I am satisfied that a remedy of compensation in the amount of eight weeks’ base pay less appropriate taxation in favour of Mr Gawne is appropriate in the circumstances of this case. An order to that effect will be issued with this decision.
DEPUTY PRESIDENT
Appearances:
T Gawne, on his own behalf.
S Ross for Nardy House Incorporated.
Hearing details:
2019.
Bega:
May 22, 23.
Printed by authority of the Commonwealth Government Printer
<PR712507>
1 Transcript PN223.
2 Transcript PN232-233.
3 Ibid.
4 Transcript PN266.
5 Transcript PN603.
6 Transcript PN976.
7 Transcript PN975.
8 (1995) 185 CLR 410 at 465 per McHugh and Gummow JJ.
9 Sayer v Melsteel[2011] FWAFB 7498.
10 (1995) 62 IR 371.
11 Ibid at 373.
12 [2013] FWCFB 6191
13 Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41].
14 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
15 Previsic v Australian Quarantine Inspection Services Print Q3730.
16 (2000) 98 IR 137.
17 Ibid at 151.
18 Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.
19 RMIT v Asher (2010) 194 IR 1, 14-15.
20 McCarron v Commercial Facilities Management Pty Ltd t/a CFM Air Conditioning Pty Ltd [2013] FWC 3034, [32].
21 Fastidia Pty Ltd v Goodwin Print S9280 (AIRCFB, Ross VP, Williams SDP, Blair C, 21 August 2000), [43]-[44].
22 (1998) 88 IR 21.
23 [2013] FWCFB 431.
0
8
0