Therese Schieh v Aldi Stores (A Limited Partnership) T/A Aldi

[2015] FWC 7959

[2015] FWC 7959

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Therese Schieh
v
ALDI Stores (A Limited Partnership) T/A ALDI
(U2015/9158)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 19 NOVEMBER 2015

Application for relief from unfair dismissal.

[1] Ms Therese Schieh says that her dismissal by Aldi Stores was unfair.

[2] Ms Schieh commenced employment as a Store Assistant in October 2006 and worked her way up to the position of Store Manager in October 2012. In November 2013, Ms Schieh was appointed to manage the Chadstone store.

[3] In January 2015, Ms Schieh had her annual performance appraisal. Her appraiser gave her a positive report and his summary was:

“overall, Therese’s performance is absolutely satisfactory. She achieved a lot of targets which were set for 2014. With the new staffing structure and her strong management team she will be able to improve in areas of opportunity in 2015 (inventory, payroll, specials losses).

While keeping her high standard of expectations and work ethic she is considered as a great trainer and leader within our business.” 1

[4] On 26 June 2015, Ms Schieh’s employment was terminated over ongoing issues associated with her conduct.

[5] Aldi submitted that there were three valid reasons for the termination of Ms Schieh’s employment:

1. Use of language, including the extent of belittling and bullying of certain employees under her control (which was both self-evidently problematic, and a breach of policy);
2. Her use of CCTV to surveil staff members which was contrary to the employer’s policy;
3. Her refusal on 28 May to provide alternative rosters at the request of Michael Mason.

[6] At the hearing, Aldi did not press its submission that the valid reason included her performance in the basis metrics of the store (including turnover of staff).

[7] Aldi submitted that any one of these reasons justified the dismissal and the presence of multiple valid reasons puts the dismissal beyond doubt.

[8] Aldi submitted that Ms Schieh’s conduct or capacity affected the safety and welfare of other employees.

The Evidence

1. Use of language, including the extent of belittling and bullying of certain employees under her control (which was both self-evidently problematic, and a breach of policy);

[9] There were a number of examples relied upon by Aldi.

[10] Mr Daniel Rizk told Ms Shellee Spalding, Ms Schieh’s area manager, in late May 2015 that approximately six staff members had called him and told him that they were unhappy and looking for work elsewhere. Mr Rizk told Ms Spalding that the employees wanted to leave because of Ms Schieh’s management style and the manner in which she treated staff, including allegations of bullying and harassment. 2 Mr Rizk was not called to give evidence in these proceedings.

[11] On 5 June 2015, Ms Schieh was suspended because of serious allegations of bullying and harassment.

[12] Ms Spalding conducted an investigation. Her investigation report was exhibited to her statement. That report was concluded prior to any interview with Ms Schieh. 3

[13] Ms Spalding reported that Ms Schieh: 4

• describes herself to her staff as a “bitch.” While she found that most staff find this harmless others do consider it inappropriate.



• is known as a hard manager and she can be intimidating to many both in her stature and in her demeanour. She makes staff feel like they disappoint her.



• is accommodating of staff needs when it comes to rostering requirements. Mr Rizk said that it causes havoc at the store and at times means Ms Schieh works excessive hours to accommodate others.



• requires a sick certificate for each shift with no exception which is contrary to the workplace agreement. Ms Schieh is described as an immovable.

[14] Ms Spalding reported that: 5

• Two male store assistants stated that they find themselves apologising a lot to Ms Schieh.



• One said it took him days to recover from being confronted by Ms Schieh.



• Numerous store assistants say they are made to feel that they have let the whole team down, that they let the store down and they have caused the store to be behind.



• Mr Joshua Patti resigned shortly after his 60 day review. Mr Rizk said that the expectations of him were too high. Ms Schieh made comments about not liking Josh’s attitude and said words to the effect of “I made him cry” when referring to a discussion regarding Josh’s performance.



• Ms Schieh issued a warning to a staff member who did not attend a staff meeting. Ms Spalding did not consider the warning to be appropriate. This staff member said that when Ms Schieh “tells him off she can get quite in his face and this can take him days to get over and recover from”.



• Ms Hamilton said that she felt uncomfortable when having put a product in the wrong place Ms Schieh asked her if she could read English or not. On another occasion at a staff meeting Ms Schieh asked her whether she could read or not. Upon returning to work after sick leave Ms Hamilton complained that Ms Schieh raised her voice and told her words to the effect that the store and business comes first. Ms Schieh was unhappy that she had texted another staff member and advised that she was sick rather than phoning the store directly.

[15] Ms Jessica Narayan, a Store Assistant, gave evidence that “new store assistants appear to have poor morale. They are not confident and don’t communicate with the team”.  6

[16] She gave evidence that when Ms Schieh returned from annual leave she said words to the effect “the bitch is back” and that she was going to be hard on us. Ms Narayan said she thought this was said in a joking way. Ms Narayan reported that she had coffee with Ms Hamilton after a meeting with Ms Schieh and Ms Hamilton told her that she was in tears after the meeting.

[17] Mr Laneth Sffarlenn said that “it can be my experience that behind closed doors it can get very aggressive – it might be to Therese’s culture. When I was a Trainee Store Manager I felt belittled when one-on-one behind closed doors. I sometimes felt that Therese might hit me.” 7 He “felt intimidated when Therese and Daniel would get in your face and yell at you.”8 He felt completely demoralised. He said he was aware of others feeling uncomfortable whilst working in this store.9

[18] Ms Schieh denied ever saying to Ms Hamilton can you read English. She accepts that she asked her if she had actually read the information which was provided on the table in the staff room. 10 She accepted that she might’ve overstepped the line.11

[19] Ms Schieh accepts that she referred to herself as a bitch. Ms Schieh said that a previous colleague had said that there were “rumours going around that you are a bitch but working with you it’s actually not true, you’re really good to work with.” 12 Ms Schieh said she took it as a joke and since then she has just been using it and saying “yes, I’m the bitch of Aldi because this rumour was going around in Aldi.”13 It was her evidence that no one had ever told her it was inappropriate.14

[20] Ms Schieh described herself as a firm manager but not a harsh or unreasonable manager. 15 She denied that the use of the work bitch described how she conducted herself in the store.16

[21] Ms Schieh denied making Mr Patti cry. She accepts that he did cry. She had called him into the office and discussed with him what was expected of him and that orders are needed to be followed, she explained how they work and how it’s done. He started crying in that conversation. 17

[22] She accepted that she gave Mr Sffarlenn a warning for failing to attend a staff meeting. He had failed to contact the store or inform the store that he was not coming in. It was her evidence that this was not a one-off event. 18

[23] She denied intimidating Mr Sffarlenn or bullying Mr Perera. Ms Schieh tendered a text message from Mr Perera dated 11 June 2015 in which he said “I was really shocked to hear about what happened. Just letting you know that you have my support. Really sorry to hear that and hope to see you soon back in the store. 19

[24] She denied bullying Ms Hamilton, Mr Winnewisser, Ms Crispino and Ms Narayan.

[25] I am unable to find on the evidence before the Commission that Ms Schieh bullied employees or belittled them. Except for Ms Narayan and Mr Sffarlenn, Aldi did not call the employees who made the complaints. It is not clear from the report that all those referred to in fact made complaints. For example, Mr Patti resigned in May 2015 and there is no evidence that he was subsequently interviewed. Further, Ms Spalding acknowledged that despite the report referring to comments made by Ms Schieh, she was not interviewed at the time Ms Spalding conducted the investigation. Further, in relation to Mr Patti, if Ms Schieh made the comments set out in the report to Ms Spalding prior to May 2015, there is no evidence that Ms Spalding considered the remarks to be inappropriate or that she cautioned Ms Schieh about this at the time.

[26] Ms Narayan gave evidence that she considered Ms Schieh’s use of the term bitch as being a joke. I did not permit Aldi to lead further evidence from Ms Narayan on this topic as Aldi had been on notice that it was Ms Schieh’s evidence that she said this as a joke and that this was an issue to be resolved. There was no explanation as to why Ms Narayan did not include her additional evidence when she prepared her statement. I accepted the submission that as Ms Schieh had closed her case, it was inappropriate for evidence to be led in chief that could have been put in the witness statement.

[27] I accept that using such language is not appropriate. However, there is no direct evidence that any staff members were intimidated by her use of this language. Further, there was no evidence that Ms Schieh had been told it was inappropriate.

[28] Ms Narayan’s statement that new store assistants had poor morale does not assist me in making any findings about whether Ms Schieh’s conduct was responsible for the poor morale. Ms Schieh accepted that new store assistants had not had adequate training. So much was acknowledged in her performance review. Ms Schieh explained that the demands on her time had made it difficult for her to provide this training. There was no evidence given of what caused the new store assistants to have poor morale. Ms Narayan did not provide evidence or any explanation of how she reached her conclusion. Nor does her evidence that Ms Hamilton was upset after a meeting with Ms Schieh assist. The reasons Ms Hamilton may have been upset are not explained and Ms Hamilton did not give evidence.

[29] Mr Sffarlenn’s evidence is also unhelpful. It does not describe in any detail what happened and when. Mr Sffarlenn’s evidence is about his time as an Assistant Trainee Manager which on his own evidence ended in September 2014. Mr Sffarlenn felt belittled and felt that Ms Schieh might hit him. This latter allegation is serious yet there is no evidence of what Ms Schieh did to cause him to feel this way. Mr Sffarlenn gave evidence that both Ms Schieh and Daniel would get in his face and yell at him. Ms Schieh accepted that at times when she was stressed her voice would get loud. Mr Sffarlenn was stressed when his managers asked to discuss performance matters with him in the office. Without more detail, it is impossible to determine if what was occurring was reasonable management action. I accept that yelling at employees is inappropriate. Again, there is no evidence that Ms Schieh was warned that she should not raise her voice at employees.

[30] Mr Sffarlenn said that he had never been asked to do any task that was unreasonable. He accepted that it was a high pressure store. Mr Sffarlenn’s comments about other staff members’ feelings do not assist Aldi. That Ms Schieh may have had a go at Mr Patti tells me nothing. It may be that Ms Schieh told Mr Patti off. He may not have been doing his job. Managers do have to at times criticise staff. Without hearing from Mr Patti about what was said and the context in which it was said, no meaningful conclusion can be reached.

2. Her use of CCTV to surveil staff members which was contrary to the employer’s policy;

[31] Aldi stores are monitored. Employees are aware of the monitoring. Ms Spalding’s report notes that managers are using live CCTV footage for bag and catalogue checks and making accusations against staff who are not doing these. She reported that staff see managers watching the footage and putting ticks or crosses against people’s names. She reports that staff would rather not see this and view it as poor management. It was alleged watching footage to review performance is a breach of the policy. One manager considered that watching CCTV was a waste of time and his time would be better spent on the shop floor.

[32] Ms Schieh admitted that she uses CCTV if there is an incident in the store and that sometimes she uses it for staff performance if the work does not get done. She accepted that she sometimes used CCTV for bag checks and catalogues, but very rarely. 20 It was her evidence that she used the CCTV footage as she had been taught to use it.

[33] The Employee Handbook dated September 2012 sets out the surveillance policy. Employees are told that the cameras are permanently on and they provide open surveillance of all people on the premises. The surveillance is continuous and on-going, in order to increase safety and security of employees and customers and to assist Aldi in minimising theft and property loss or damage. Further surveillance data may be used in investigation into incidents and will be considered by Aldi when deciding the actions to take as a result of investigations. 21 An extract of the policy was tendered and it was said to be displayed on store noticeboards. It was dated 1 January 2012.22

[34] Ms Schieh tendered another version of policy dated 13 December 2012. 23 It is in similar terms but it provides that recorded CCTV footage may be used by Aldi to investigate occurrences in stores, offices and DCs including accidents and incidents, suspected breaches of Aldi policy, criminal behaviour or reported unlawful acts by staff, customers, visitors or contractors. In these cases, Aldi may utilise footage to investigate the issue.

[35] Mr Sffarlenn gave evidence that he used security footage for cashier audits (bag checks, catalogues being handing out etc.) and he was advised by Ms Schieh and Daniel to do so once per shift. 24

[36] It is difficult to see how using the CCTV to monitor bag checks breached the policy. All the versions of the policy tendered refer to the use of CCTV to monitor theft. Checking bags by cashiers is one method ALDI uses to reduce theft. Using the CCTV footage to ensure that this occurring is not a breach of the policy.

[37] It was put that Ms Schieh breached the policy by using the CCTV footage to monitor performance. It is not clear that the policy does prohibit the use of CCTV footage to monitor performance. There was no evidence that Ms Schieh had undergone formal training in this policy. 25 It was her uncontested evidence that she used the CCTV as she was shown by her previous manager.26

[38] It was put that using the CCTV footage to monitor performance put employees under pressure. Ms Schieh accepted that if employees saw her watching the CCTV and putting a tick or a cross next to people’s names that would tend to put duress or pressure upon an employee who was aware of it. 27 There was no direct evidence that employees knew that Ms Schieh used the CCTV footage to monitor performance or that it put any particular employee under pressure.

[39] I am not satisfied that Ms Schieh breached CCTV policy because the policy is not clear. There are various versions of the policy before me and the most recently dated version provides that it may be used to monitor occurrences in stores and that is such a broad term that it would encompass performance. Further, I accept Ms Schieh’s evidence that she had been told by a previous manager that she could use the CCTV to monitor performance and there was no evidence that she had undergone training in the application of the policy where it had been made clear that she was not to use the CCTV footage to review staff performance.

3. Her refusal on 28 May to provide alternative rosters at the request of Michael Mason.

[40] Mr Mason met with Ms Schieh and Ms Spalding on 30 April 2015. There is a dispute over who initiated the meeting. Ms Schieh said that they discussed issues about Chadstone and that she was finding it stressful. She asked for a transfer. 28 They discussed special allocations and KPI’s. Mr Mason told her that the store’s figures were down from the previous year’s figures. She told him she thought this was because of the general make-up base of the customers. In addition, they had lost a number of staff members and were training seven new staff. She also said that her WorkCover restrictions were having an impact because she could not work as many hours. Mr Mason asked her to prepare some base rosters for him to discuss at the next meeting. Base rosters are the manager’s estimate of the number of employees and the number of hours a store will need to operate effectively.29

[41] Mr Mason gave evidence that he told Ms Schieh that he could see areas for productivity gain in the store and asked her to present options and recommendations at the next meeting. He said he specifically asked her to spend time working up different base rosters with different times of the day for condensing and to present at the next meeting the findings of the different options and the productivity impacts of each option. 30 Mr Mason attached minutes of the meeting and those minutes do not record this direction.31

[42] A follow up meeting was held on 29 May 2015. Ms Schieh said she presented two base rosters and some productivity sheets to Mr Mason. 32

[43] Both Mr Mason and Ms Spalding said that Ms Schieh only produced one base roster. 33 Ms Spalding gave evidence that the base roster was unrealistic and she did not agree with the roster. Mr Mason tendered minutes of the meeting.34 There was no reference to the rosters in the minutes.

[44] I am satisfied that Ms Schieh was asked to produce alternative rosters and that she only produced one roster. Both Mr Mason and Ms Spalding gave this evidence. The evidence discloses that this failing was not discussed with Ms Schieh at the time, nor was it considered sufficiently significant as to be recorded in the minutes of the meeting.

Other allegations

[45] On 12 June 2015, a meeting was held with Ms Schieh and she was asked a series of questions about financials, injuries, management processes with the store, staff exit interview results and staff issues that had been raised. Mr Mason read from staff exit interviews which reflected negatively on Ms Schieh. The exit interviews were from as early as April 2014 and he latest one on February 2015. 35

[46] There was no evidence that Ms Schieh had been advised of these negative exit interviews at any time prior to 12 June 2015. There was no reference to these issues in the performance appraisal given in January 2015.

[47] On 14 June 2015, a letter was sent to Ms Schieh setting out the allegations. That letter replicated the questions put to Ms Schieh on 12 June 2015. A further meeting was held on 18 June to provide Ms Schieh with an opportunity to respond.

[48] At that meeting, in addition to the matters set out above, Mr Mason told Ms Schieh that she was not fulfilling some aspects of her role namely minimising staff turnover and maximising productivity and controlling and reviewing staff performance. He advised her that there was a 50% turnover of staff and 5/7 new starts had left Aldi. He told her that the cost of each lost staff member was $7,965. 36

[49] He advised Ms Schieh that the incompletion rates for the 30/60/90 reviews for new staff was unacceptable. He raised with her concerns that new staff had entries in the consistency logs and records of conversation despite not having received feedback through these reviews. He gave Ms Schieh specific examples. He explained to Ms Schieh that her understanding of the sick leave policy was incorrect and that she had been applying the sick leave policy inconsistently. Further, he raised concerns about how Ms Schieh managed the specials as well as job rotations.

[50] Having heard Ms Schieh’s response, Mr Mason determined to terminate her employment because there had been a breakdown in trust between her and the business.

[51] On 26 June 2015, a letter was sent to Ms Schieh advising her that her employment had been terminated and providing her with four weeks’ notice.

Was the termination of employment harsh, unjust or unreasonable?

[52] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Fair Work Commission must take into account the following:

s387(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);

[53] Aldi submitted that this was a conduct case and not an issue of performance and it relied on the three matters set out a paragraph [5] above. 37

1. Use of language, including the extent of belittling and bullying of certain employees under her control (which was both self-evidently problematic, and a breach of policy);

[54] In relation to the belittling and bulling allegations, Aldi submitted that this was not bullying as defined in the employee handbook nor was it bullying as defined in the Fair Work Act 2009. It was putting pressure on and belittling. 38 It relied upon the evidence of Mr Sffarlenn and the investigation report. I am not prepared to infer from the investigation report prepared by Ms Spalding that Ms Schieh engaged in putting pressure on or belittled employees. Without context, it is not possible to make such a conclusion. Ms Schieh may well have put pressure on employees. Giving instructions to employees, speaking to them about their performance may put pressure on them. It does not make the conduct unreasonable.

[55] While I accept that I can receive hearsay evidence, I am also not prepared to infer, in the face of specific denials by Ms Schieh, that she belittled the employees referred to in the report. It was put that the existence of similar allegations of belittling enable me to conclude that what Ms Narayan and Mr Sffarlenn said must have occurred. However, what Ms Narayan and Mr Sffarlenn said has limited compass. Even accepting that part of their evidence which I have does not give greater weight to the matters set out in the report.

[56] Ms Narayan gave evidence that Ms Schieh referred to herself as a bitch in a joking way. Ms Spalding in her report reached conclusions about Ms Schieh’s use of the term bitch. She says it means she “has to be tough on everyone … and she expects her managers to be as tough as she is and that they are to meet her high expectations and standards.” 39 She said that some staff members do not find it appropriate.40 There is no explanation in the report of how Ms Spalding reached this conclusion. Further, it is not clear what is meant by the expression is “tough on everyone.” Does it mean she expects employees to do the job they are employed to do or does it means she has unreasonable expectations of employees? In her January 2015 appraisal, Ms Schieh’s high standard of expectations and work ethic were praised and not seen in a negative light.41

[57] I accept that Ms Schieh called herself a bitch. I also accept that this term may be interpreted by some employees in different ways. I also accept that young workers may not see it as a joke. But I am unable to conclude that because Ms Schieh called herself a bitch she bullied and belittled staff members.

[58] Ms Narayan did not give evidence that Ms Schieh bullied or belittled her or anyone else.

[59] Mr Sffarlenn did give evidence of feeling belittled. He did not give evidence of what Ms Schieh did to cause him to feel this way. He also did not give evidence of what caused him to feel that Ms Schieh might hit him. This is a serious allegation. To be substantiated there needed to be evidence of what Ms Schieh had done.

[60] He said that Ms Schieh yelled at him. Yelling at employees is inappropriate and should not occur. Ms Schieh gave evidence that she was aware that when she was stressed she raised her voice. It was incumbent on her to manage this and not raise her voice at staff.

[61] Mr Sffarlenn also said that talking about performance caused him stress and made him concerned about his job. However, I am unable to find that talking about performance is bullying or belittling even if it causes stress and concern about job security, particularly when Mr Sffarlenn accepted that he had never been asked to do a task which was unreasonable. While Mr Sffarlenn gave evidence of others feeling uncomfortable, the only reference to Ms Schieh is that she had a go at Mr Patti. Without knowing what was said or in what context or how it was said, I could not safely conclude that Ms Schieh bullied or belittled Mr Patti.

[62] In contrast to these complaints, Ms Schieh performance review in January 2015 said this about Ms Schieh: 42

“Therese is a great team leader. She is able to set up a high level of motivation and positive environment within her store. She always pays attention to her employees, also if they experience difficulties in their private life. Therese does a great job on welcoming new staff to her store. Every new starter is feeling well and considers himself as part of the team after a couple of days. Well done.”

[63] After acknowledging some specific issues in relation to setting goals and objectives for each staff member and the lack of training and fulfilment of team responsibilities, the review acknowledged that things were going in the right direction and there was a structure in place to execute these tasks better in 2015.

[64] It went on to say “the team spirit Therese was able to create is the biggest win for her in 2014. Every staff member works hard, enjoys work, is motivated and shows commitment.” 43

[65] These conclusions were reached by her then manager despite the existence of some negative exit interviews in 2014.

[66] While I accept that Ms Schieh’s use of the term “bitch” to describe herself was inappropriate and that she yelled at Mr Sffarlenn I am not satisfied that Ms Schieh bullied and belittled employees or breached Aldi’s policies. While I accept that Mr Sffarlenn felt belittled, I am unable to find that, apart from yelling at him, Ms Schieh belittled or bullied Mr Sffarlenn. I accept that yelling at employees may constitute bullying but I am not satisfied that the conduct described by Mr Sffarlenn constitutes a valid reason for the termination of Ms Schieh’s employment.

2. Her use of CCTV to surveyor staff members which was contrary to the employer’s policy;

[67] I am not satisfied that Ms Schieh breached Aldi’s policy. I am not satisfied that the policy in fact prohibits the use of the CCTV footage to monitor performance. The policy is unclear. There is no evidence that Ms Schieh has received training on the use of CCTV footage and her evidence that she had been told by her previous manager to use the CCTV footage in the manner she did was not challenged.

3. Her refusal on 28 May to provide alternative rosters at the request of Michael Mason.

[68] I am not satisfied that Ms Schieh refused to provide the alternative rosters. There is no dispute that she provided an alternative roster. While I prefer Mr Mason and Mr Spalding’s evidence that she did not provide two rosters, despite Ms Schieh’s evidence that she did, I am unable to conclude that this was a “refusal.” If this was considered to be a significant matter I would have expected it to be referenced in the minutes of the meeting and it was not. I further would have expected Ms Schieh to have received a counselling or a warning about this failure but she did not. I do not accept that this conduct provides a valid reason for the termination of Ms Schieh’s employment.

[69] I am also not satisfied that yelling at Mr Sffarlenn in 2014 and not providing more than one roster constitutes together a valid reason for the termination of Ms Schieh’s employment.

s387(b) whether Ms Schieh was notified of that reason;

[70] I am satisfied that Ms Schieh knew the allegations made against her, though they were expressed as questions to Ms Schieh. I am satisfied that Ms Schieh was advised that the allegations against her were serious. It is clear that Mr Mason told Ms Schieh that there had been a breakdown in trust between Ms Schieh and Aldi. There was no evidence that Ms Schieh was told this prior to the decision to terminate her employment was made.

s387(c) whether Ms Schieh was given an opportunity to respond to any reason related to the capacity or conduct of herself;

[71] I am satisfied that Ms Schieh was given an opportunity to respond to the allegations prior to the decision being made.

s387(d) any unreasonable refusal by the employer to allow Ms Schieh to have a support person present to assist at any discussions relating to dismissal;

[72] Ms Schieh was not refused a support person.

s387(e) if the dismissal related to unsatisfactory performance by the person—whether Ms Schieh had been warned about that unsatisfactory performance before the dismissal;

[73] The dismissal did not relate to unsatisfactory performance.

s387(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;

[74] Aldi accepted that it is a large company with dedicated human resources staff.

s387(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;

[75] Aldi submitted that it prides itself on its practical and comprehensive approach to performance issues and has dedicated human resources staff.

s387(h) any other matters that FWC considers relevant.

[76] Ms Schieh was a long standing employee. There was no evidence that prior to April 2015 that Aldi had any serious concerns with Ms Schieh’s performance or conduct. While some areas of improvement had been identified in the performance appraisal, she was assessed as “absolutely satisfactory”.

[77] The investigation conducted into the complaints and the outcome was not consistent with Aldi’s disciplinary policy. It was not suggested that Ms Schieh was guilty of serious misconduct warranting summary dismissal. 44 The policy provides that if summary dismissal is not appropriate then a process of warnings will be followed. It further provides that this process will only be enforced after efforts have been made to correct unsatisfactory performance or behaviour via counselling and/or training. There is no evidence that Mr Mason had regard to the policy when making his decision.

Conclusion

[78] I have found that there was not a valid reason for the termination of Ms Schieh’s employment. While she was given an opportunity to respond to the allegations, she was not provided with an opportunity to respond to reasons for the dismissal. What occurred was inconsistent with Aldi’s own policy. While I have found that Ms Schieh did yell at Mr Sffarlenn and did not provide more than one roster, the termination of her employment was a disproportionate response to that conduct. I find that the dismissal was unfair because Ms Schieh did not engage in conduct which warranted the termination of her employment and it was harsh as she was a long standing employee who had no previous disciplinary issues and the response was disproportionate to the conduct that I have found occurred.

Remedy

[79] Ms Schieh is not seeking reinstatement of her employment. There was no submission that an order for compensation should not be made.

Remuneration that would have been received (s.392(2)(c))

[80] Aldi submitted that Ms Schieh would not have remained in employment for more than a couple of months if she had not been dismissed. Aldi relied upon the performance issues that had been identified by Mr Mason. I do not accept this submission. There is no evidentiary basis on which I could conclude that if there were identifiable deficiencies in her performance or conduct that she would not, with appropriate training and counselling, have been able to make the necessary changes.

[81] It was clear from Ms Schieh’s evidence that she considered she was entitled to debate with her supervisors their proposals for her stores but this is unsurprising given the autonomy managers were given to manage the store. However, except for the issue of not providing two base rosters, there is no evidence that Ms Schieh would ignore directions of her mangers when they were given. When Ms Spalding told Ms Schieh to make changes to the timing of her rosters she did as she was asked. It should not be overlooked that until April 2015, Ms Schieh was highly regarded by Aldi. I am satisfied that if an appropriate performance management program had been put in place Ms Schieh would have responded to that. I find that Ms Schieh would have remained in her employment for at least two years. Ms Schieh’s annual salary was $74,900. She also received bonuses. 45 Ms Schieh would also have been entitled to 9.5% superannuation. Therefore her remuneration for the two years would have been $164,031.00.

Remuneration earned (s.392(2)(e) and Income likely to be earned (s.392(f))

[82] Ms Schieh was paid four weeks’ pay in lieu of notice and an additional two weeks carers leave pay. Ms Schieh gave evidence that she had been unable to find any work since her dismissal. Apart from the monies paid on termination, Ms Schieh has not earned any monies at the date of the hearing. Six weeks’ pay including superannuation is $6,308.08.

Other matters (s.392(2)(g))

[83] In this matter, the projected two year period of employment has not passed. There is a prospect that Ms Schieh’s employment may have ended for reasons unconnected with her performance or conduct. I will deduct 15% for contingencies.

Viability (s.392(2)(a))

[84] There were no submissions that any order would have any effect on Aldi’s viability. This is not a matter which warrants any adjustment to the amount.

The length of service (s.392(2)(b))

[85] Ms Schieh was a long serving employee. This supports an order for compensation, but given my decision in this matter, it is not necessary to determine if this would warrant either increasing or decreasing the amount of compensation.

Mitigation (s.392(2)(d))

[86] I am satisfied that Ms Schieh attempted to mitigate her loss. She gave evidence that in the period immediately after her dismissal she spent some time at home with her children. That was not unreasonable. She met with a recruiter on 27 July 2015 and since then had applied for a number of positions. 46 There was no submission that Ms Schieh had not taken sufficient steps to mitigate her loss. There is no reason to reduce the amount because of her efforts to mitigate her loss.

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation;

[87] Given my order, this criterion is not relevant.

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation;

[88] Given my order, this criterion is not relevant.

(g) any other matter that FWC considers relevant.

[89] No submissions were made that there were any other matters that I should consider.

Misconduct (s.392(3))

[90] There was no submission that there should be any deduction for misconduct. In any event, I am not satisfied that Ms Schieh was guilty of misconduct. Even taking the two matters which I have found occurred, namely she yelled at an employee and she did not produce more than one base roster, neither of these could be characterised as misconduct warranting a deduction from the amount of compensation. However, if I am wrong, I would have only deducted an amount of 10% and give my decision, that deduction will not impact on the amount of compensation to be ordered.

Compensation cap (s.392(5))

[91] The compensation cap in this case is $41,007.75, being $37,450 and $3,557.75 superannuation.

Instalments (s.393)

[92] There was no submission that the amount should be subject to payment by instalments

Conclusion

[93] In light of the above, I order Aldi to pay Ms Schieh $37,450 less taxation as required by law, and $3,557.75 to Ms Schieh’s superannuation fund within 21 days of the date of the order.

DEPUTY PRESIDENT

Appearances:

M Minucci of Counsel for the Applicant.

T Donaghey of Counsel for the Respondent.

Hearing details:

2015.

Melbourne:

September 15 to 16.

 1   Exhibit A1 at TS-1.

 2 Exhibit R2 at [15].

 3   Transcript PN 1294.

 4   Exhibit R2 at SS-3.

 5   Ibid.

 6 Exhibit R5 at [3].

 7 Exhibit R6 at [3].

 8 Ibid at [4].

 9 Exhibit R6 at [6].

 10   Transcript PN 196.

 11   Ibid PN 197.

 12   Ibid PN 200.

 13   Ibid.

 14   Ibid PN 201.

 15   Ibid PN 420.

 16   Ibid PN 419.

 17   Ibid PN 229.

 18   Ibid PN 232-233.

 19   Exhibit A3.

 20   Exhibit A1 at TS-2.

 21   Exhibit R1.

 22   Exhibit R3.

 23   Exhibit A7.

 24   Exhibit R6.

 25   Transcript PN 257.

 26   Transcript PN 256.

 27   Ibid PN 361.

 28 Exhibit A1 at [19].

 29 Ibid at [22].

 30 Exhibit R4 at [7].

 31   Ibid at MM-1.

 32   Transcript PN 181.

 33   Exhibit R4 at [14] and R2 at [13].

 34   Exhibit R4 at MM-2 and MM-3.

 35   Exhibit A1 at TS-2.

 36   Exhibit R4 at [39]-[40].

 37   Transcript PN 1958.

 38   Transcript PN 1873.

 39   Exhibit R2 at SS3.

 40   Ibid.

 41   Exhibit A1 at TS-1.

 42   Ibid.

 43   Exhibit A1 at TS-1.

 44   Exhibit R1 at page 18.

 45 Exhibit A1 at [7].

 46   Exhibit A6.

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