Tiffany Stodart v The Employer - [2022] FWC 277

[2022] FWC 277

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

Section 394 - Application for unfair dismissal remedy

Tiffany Stodart
v

The Employer

(U2021/9412)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 4 MARCH 2022

Application for an unfair dismissal remedy – supervisor – co-worker with past criminal record – insubordination – valid reason – procedural fairness – whether mitigating circumstances render dismissal harsh – dismissal not harsh, unjust or unreasonable – application dismissed

On 20 October 2021 Tiffany Stodart (the applicant or Ms Stodart) applied to the Commission under section 394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy. She was dismissed on 30 September 2021 by The Employer trading as Supermarket A (the employer or the respondent). At the date of dismissal she was employed as a retail employee working across three departments.

Ms Stodart claims her dismissal was harsh, unjust or unreasonable. She seeks an order for reinstatement or, in the alternative, compensation.

The employer opposes the application. It contends Ms Stodart’s dismissal was not unfair and no issue of remedy arises. In the alternative, it submits that re-employment should not be ordered and compensation should be nil.

Conciliation was twice conducted; firstly by a staff conciliator and then, following directions issued on 8 December 2021, by a Commission member. The matter did not resolve.

I granted permission for the parties to be legally represented.[1]

In advance of the hearing, I received materials from Ms Stodart and the employer.

I heard the matter by video conference on 7 and 8 February 2022.

These are my reasons for decision.

In the course of proceedings I made a confidentiality order relating to the evidence, the record of proceedings and de-identification of certain names including the trading name of the employer.[2] As the respondent’s trading name is capable of disclosure via an internet search engine of its corporate name, I extend the terms of that order to include its corporate name (with the respondent referred to as “The Employer”).[3]

Given the confidentiality order and factual narrative, I have redacted portions the published decision where I consider prejudice or potential prejudice from publication outweighs the public interest. In doing so I have assessed the importance of open justice and the statutory obligation to publish reasons[4] against prejudice or potential prejudice to parties and persons named. The parties and their representatives have received an unredacted decision (consistent with the confidentiality order). I have ordered that the unredacted decision not be circulated more broadly without leave of the Commission.

Evidence

Ms Stodart gave oral evidence on a statement filed in her name.[5]

Three witnesses were called by the employer:

Brooke Vaughan, Customer Service Manager[6];
Leah Campbell, On-line Department Manager[7]; and
Kathryn Noordhoek, Group Manager Recruitment, Training, People and Culture[8].

As the matter concerned Ms Stodart’s final three months of employment, the evidence was of considerable breadth. Material facts are in dispute. Issues of credit arise.

Ms Stodart was a confident witness but her evidence conveyed an impression of selectiveness. In key respects her evidence appeared to be a partial reconstruction rather than an unblemished narrative of what occurred. Whilst making occasional concessions, she was somewhat reluctant to do so. Some denials lacked plausibility. Her evidence was not wholly unreliable but given the above, I approach key aspects with caution.

Ms Vaughan gave evidence conscientiously but was uncomfortable when cross examined. She defaulted to being unable to clearly recall. Whilst generally reliable especially where evidence was corroborated by her notes or that of others, I approach some of her evidence with caution given the lapses in memory.

Ms Campbell was a witness of credit. She was clear and conveyed an overall impression of balance and fair-mindedness. However, her evidence concerned limited and discrete matters.

Ms Noordhoek was an impressive witness. As the decision-maker and involved in events from the outset, her evidence was wide-ranging. She was extensively cross examined. She presented as composed and responsive with good recall including the sequence of events and content of meetings. She made concessions but when challenged was firm and plausible.

For these reasons, and subject to specific findings, I prefer the evidence of Ms Noordhoek and Ms Campbell to the evidence of Ms Stodart. I also generally prefer the evidence of Ms Vaughan over Ms Stodart though I apply a degree of caution in respect of both witnesses.

There are three further evidentiary matters arising.

Firstly, I did not admit into evidence and thus do not place reliance on a signed but unsworn statement by a [name redacted] included in the applicant’s materials. That statement was not pressed as [name redacted] was not called to give evidence.

Secondly, the evidence of employer witnesses includes handwritten statements from various other employees [name redacted], [name redacted], [name redacted], [name redacted], [name redacted] and an un-named statement (said to be that from a [name redacted]). Those statements were not prepared for the purpose of these proceedings; they form part of the pre-dismissal narrative. None of these persons were called. Being untested, I have admitted the statements on the basis that they are a component of the narrative of events but not probative of their contents. In contrast, the pre-dismissal handwritten statement of Ms Campbell was the subject of evidentiary testing and is a basis for fact-finding.

Thirdly, counsel for Ms Stodart urged the Commission to make an adverse inference against the employer of the Jones v Dunkel[9] kind for not calling store managers (Ms Murphy, Mr Wilson and Mr Blanton) and employees [name redacted], [name redacted], [name redacted], [name redacted], [name redacted] and [name redacted].

In response, counsel for the employer contend that the three witnesses called provided the best available evidence and no adverse inference ought to be made.

A Jones v Dunkel inference, were it made, does not enable facts not otherwise open to be so found. It simply has the effect of creating an inference that evidence of a certain person would not have been helpful to the party that did not call that person.[10] I need not draw that inference for the following reasons.

Firstly, the primary persons involved in the events leading to dismissal, including the decision-maker (Ms Noordhoek), were called and gave evidence.

Secondly, matters on which the store managers could have given evidence are generally in evidence through the employer witnesses that were called. The absence of evidence from the store managers, whilst it may have been helpful, did not create a material lacuna in evidence.

Thirdly, the absence of evidence from the other employees does create a relevant gap in fact-finding. In many of those respects I am left with the evidence of Ms Stodart alone. However, I need not draw a Jones v Dunkel inference as, for reasons that follow, I do not make findings of fact on disputed matters where the evidentiary standard of proof (balance of probabilities) has not been met.

I also take into account that some evidence (oral and written) includes hearsay. I give little or no weight to hearsay where it concerns disputed facts unless otherwise corroborated by direct evidence (oral or written) on which findings can be made to the requisite standard of proof.

Facts

I make the following findings.

Background

The employer owns and operates supermarkets including in suburban Adelaide.

The employer is not a small business within the meaning of the FW Act. It has a dedicated human resource department headed up (since January 2020) by Ms Noordhoek.

Ms Stodart commenced as a retail employee in Supermarket A in October 2017. She had prior work experience and life skills. Whilst starting with the employer as a check-out operator, within a few weeks she became one of a number of supervisors in customer service. From time-to-time she also worked in the variety department and in accounts, having previous administrative skills.

Ms Stodart was a part-time employee. She had other interests outside the business (including at a community radio station). Whilst contracted to work at least 25 hours per week, her strong work ethic and keenness to use existing and new skills saw her working about 35 hours per week.

Until mid-2021, she worked five days a week – generally four as a customer service supervisor (front-end) and one as a retail employee in the variety department.

Whilst working as a supervisor on the front-end, Ms Stodart worked alongside check-out operators and other supervisors. She reported to senior supervisors, including Ms Vaughan.

Ms Stodart ultimately reported to the store manager. Due to movement of store managers within the employer’s business, in her last three months there were three store managers at Supermarket A (Ms Murphy until about August 2021, Mr Wilson until about September 2021 and Mr Blanton from September 2021).

Ms Stodart enjoyed her work. Being a competent organiser with strong values and work ethic, she had good rapport with others and was generally respected by employees she supervised and those to whom she reported.

Complaint concerning Person A

From time to time, a co-worker (Person A) worked alongside Ms Stodart, [redacted]. On 3 July 2021 Ms Stodart mentioned to another employee that she felt uncomfortable around Person A and thought younger female staff might also feel uncomfortable around him.

Ms Stodart entered Person A’s name into an internet search engine. She was shocked to discover a media report that Person A had been convicted [redacted] of an historic sex offence [redacted] and, after serving time, had been released.

On 4 July 2021 (a Sunday) Ms Stodart informally spoke to store management. A manager she spoke to appeared shocked. Ms Stodart was told that store management would get back to her but, in the interim, she should not discuss the matter with others.

That evening (4 July) the store manager (Ms Murphy) telephoned Ms Noordhoek, Group Manager Recruitment, Training, People and Culture. Ms Noordhoek was told that Ms Stodart had raised issues concerning Person A. Ms Noordhoek undertook to investigate. The following day Ms Noordhoek sought urgent legal advice from company lawyers. In the days that followed, that advice was received.

Feedback meeting 8 July

On 8 July 2021 Ms Noordhoek and Ms Murphy met Ms Stodart and reported back. Ms Noordhoek informed Ms Stodart that on advice of company lawyers no grounds existed for action to be taken against Person A simply because Person’s A had a past conviction for an historic sex offence. Ms Stodart advised that she believed Person A’s workplace interactions with younger female staff made them feel uncomfortable. Ms Noordhoek asked Ms Stodart for details of what she considered unwelcome conduct by Person A. Ms Stodart responded in general terms.

I accept the evidence of Ms Noordhoek that Ms Noordhoek then asked Ms Stodart for details of incidents or names of employees who she believed felt uncomfortable so the employer could investigate. In evidence, Ms Stodart said she proffered three names.[11] Ms Noordhoek said no names were provided.[12] I prefer Ms Noordhoek’s evidence. It is more plausible given that the employer did not approach specific shop-floor employees in the days that followed, that it would have been in its interests to do so if names had been advised[13], and given that Ms Stodart’s evidence-in-chief makes no reference to giving names (Ms Stodart’s witness statement omits entirely the meeting of 8 July 2021).

I also find that during the conversation Ms Stodart said words to the effect (in reference to Person A):

“I always thought there was something not right about him” and
“He should be sacked”.

Ms Noordhoek responded with words to the effect “unless he is displaying similar behaviour in the workplace, it would be unfair to dismiss him”.

The meeting concluded on the basis that Ms Stodart was invited to satisfy herself that employees she supervised understood the internal avenues to raise concerns about workplace matters including established complaint processes (which included access to store-based Contact Officers) and that she herself could report any specific conduct.[14] Ms Stodart was advised to not otherwise discuss the matter either with employees or Person A.

[Paragraph redacted]
[paragraph redacted]
[paragraph redacted
[paragraph redacted].[15]

Request not to work with Person A

Ms Stoddart considered the company response inadequate. She felt let down, isolated and helpless. On 10 July 2021 she emailed the store manager:

“I am wondering what the options are for me to not work alongside [Person A] moving forward? It was made clear to me on Thursday that the business is happy to continue as is, however, this leaves me particularly uncomfortable and compromised.”

Ms Murphy telephoned Ms Stodart and advised that a temporary solution involving Ms Stodart working more extensively in the variety department and not on the front-end when Person A was working was feasible, pending a more permanent solution.

The temporary arrangement was put in place whereby Ms Stodart worked her same hours and days but spent time off the front-end when Person A was working. This frustrated Ms Stodart. She started to dread working on days when Person A was rostered. She felt undervalued, depressed and emotional even when at work.

Roster meeting 9 August

Ms Stodart was distraught whilst at work on 9 August 2021. Noting her distress a meeting was arranged by a manager with senior management that afternoon to discuss a more permanent solution to the temporary working arrangement. Ms Stodart was not given prior notice of the meeting.

Ms Noordhoek and store manager Mr Wilson were present.

The meeting discussed Ms Stodart’s working arrangements. Ms Stodart was not invited to and did not raise issues concerning other employees. Ms Noordhoek raised a number of options with Ms Stodart. She offered to transfer Ms Stodart to a different supermarket. Ms Stodart, who lived close to Supermarket A, did not like this option. Ms Noordhoek suggested continuing to not roster Ms Stodart on the front-end when Person A was working.

During the meeting Ms Stodart displayed hostility towards Ms Noordhoek. In a raised and somewhat angry voice she said words to the effect:

“Person A should be moved, not me”;
“Why not send him to [the other supermarket]”;
“Cut his hours”;
“He shouldn’t be working with young people [redacted]”;
“He is a paedophile and is grooming young girls”; and
“He should be terminated”.

Ms Noordhoek repeated her view that no grounds existed to dismiss Person A without evidence of workplace misconduct.

The meeting did not find a permanent solution. A further discussion was to be held.

Ms Stodart exited the room. Almost immediately, Ms Stodart re-entered the room and pointedly said to Ms Noordhoek, in the presence of the store manager:

“You are not doing a very good job”.

Ms Noordhoek was shocked at being spoken to that way.

Following the meeting, store manager Ms Murphy told Ms Noordhoek that Ms Murphy had been told by another employee ([name redacted]) that Ms Stodart had called Ms Noordhoek a “fucking bitch” in a conversation with [name redacted].

Later that day, Ms Stodart telephoned her supervisor Ms Vaughan (who was on a rostered day off) and advised that she “had stormed out of the store” and did not know if she “would be working for you anymore”. Ms Vaughan’s evidence was that Ms Stodart was crying and hysterical. Ms Vaughan was unaware of the roster meeting held earlier that day. She advised Ms Stodart to calm down. Given Ms Stodart’s state, Ms Vaughan made little sense of the conversation and was unsure whether Ms Stodart had resigned (which she had not).

That evening, Ms Stodart sent a text advising Ms Vaughan she would be absent sick the following day.

Ms Vaughan subsequently discussed the matter with Ms Noordhoek and Mr Wilson. She then telephoned Ms Stodart and advised that she was “on the same page” as those managers and would “do what’s right by the business”.[16]

The following day (10 August) Ms Stodart emailed Mr Wilson. She said:[17]

“hey cam,

thanks for your time yesterday ... i was definitely expecting a much better outcome than was presented ... considering i was initially informed that the change in my roster was temporary until a better plan could be developed .... this i think got missed with jassmyn moving.
clearly the developments around [Person A]’s history have had an impact on me, and i can't see any way forward around this that enables me to feel safe and comfortable in my workplace. you guys are fairly well telling me to suck eggs. the delivery was clearly a result of a mad scramble to placate me, and appeared that little consideration had actually been given ... that my work position is to stay the status quo and that i am deemed on par with [Person A] makes me shudder. .. i will need more time to get my head around whether i can lower my standards to tolerate this insult on a daily basis.
my values and morals have been smashed, and i have experienced treatment that provides insight into the cruel side of [the supermarket] that i have heard about ... until recently, i thought the place was great, and good staff were looked after, now i see.
i will get a dr's certificate for tomorrow.
i am catching up with my best girlfriends to discuss the bad feeling i have about my workplace, at a job I (mostly) love and do very well, and see what is right for me moving forward.
cheers, tiff.”

In the five days that followed, Ms Stodart took personal leave. She saw her general practitioner on 12 August 2021 “in regards to work issues that were happening earlier that week and also her mental health which was affected secondary to this”.[18]

Ms Stodart returned to work after emailing Mr Wilson on 14 August 2021 as follows:[19]

“hey cam,

after much consideration, time and space, 1 am now in a position to return to work. a big ups to the lovely [name redacted] whom is the only person that has provided any wellbeing support whilst on leave. that there was nothing from my direct supervisor is disappointing. again, these little things are the things that define the workplace culture and inform the employee of how they are valued, or not.
I guess, ultimately with shifting me out of front-end, I am getting the opportunity to spend more time with [name redacted], which essentially is like being enveloped in warmth and kindness. that's a good reason to go to work.
I am motivated by helping others, taking lead, helping/connecting to my community and providing the best service possible. this is my purpose. I also have a load of experience and skills that [the supermarket] is yet to tap into. are you aware of these? and my leadership position at my thriving community radio station? these skills I share for free, imagine them applied in the workplace.
It is clear that I am to care less at [the supermarket], particularly the rolling of the front-end. this I will find hard to do, as customers seek me out to help. but I will leave people to wait, and wait to be asked before using initiative and solving the problem. I will no longer step in when I can see things are not rolling smoothly. being conscientious and having a big picture approach is not valued. l am now a disgruntled employee.
I would like to see that [the supermarket] is considering its hiring processes moving forward, and will be investigating myself the responsibilities of supermarkets to ensure that young people are safe. why are no police checks required when working with young people? that doesn't make sense. considering [Supermarket A] is a world leader in the supermarket game, to leave itself open to such risk and reputation loss is surprising.

I am rostered for tom, and will be safe and comfortable knowing that sunday's are free from any possible interaction with [Person A].
cheers, tiff.”

Roster meeting 23 August

On 23 August 2021, a week after returning to work, a second meeting was arranged with management to advise Ms Stodart of a permanent solution. Ms Vaughan had found the temporary arrangement difficult to work around as it involved half day rosters at the front-end. Management had decided on a permanent solution. The meeting was called to advise, not negotiate that solution. Ms Stodart was not given prior notice of the meeting.

In attendance were Ms Vaughan and Mr Wilson. Facts concerning the meeting are in dispute. Ms Vaughan prepared handwritten notes following the meeting.[20] Although she was vague as to precisely how long after the meeting her notes were prepared, they were written that same day. I consider Ms Vaughan’s notes, together with the oral evidence, a reliable basis for fact-finding.

Ms Vaughan outlined the permanent solution which was Ms Stodart working one day per week in variety, two days on the front-end and two days in the on-line department.

Ms Stodart reacted angrily. She considered on-line work a demotion.[21]

In respect to the on-line department, Ms Vaughan’s evidence was that Ms Stodart said words to the effect: “on-line is something for monkeys” and “I’ve seen people who work in there. Monkeys”. Ms Stodart denied that those exact words were used. She claims she said “on-line is an entry level job and something you can train a monkey to do”. To the extent relevant, I prefer Ms Vaughan’s evidence. Her handwritten notes record:[22]

“On-line is something for Monkey’s she said. Cam said I don’t think on-line would appreciate that comment. Her response was I’ve seen who work in there. Monkeys.”

Ms Vaughan also advised Ms Stodart that, on a rare occasion such as other staff absences, she may be rostered to work alongside Person A. Ms Stodart said words to the effect “it’s simple, don’t call him in and cut his hours”. Ms Stodart said she should be moved into the office where “I can use my brain”. In response she was told the solution presented was not a negotiation.

Ms Stodart then said to Ms Vaughan:[23]

“You are a shit front-end manager and you do nothing all day”.

Ms Vaughan was shocked to be spoken that way. Ms Vaughan and Mr Wilson called a brief halt to the meeting. After resuming, Ms Vaughan told Ms Stodart of a written staff complaint made on 17 August 2021 about the way Ms Stodart had allegedly spoken to a staff member ([name redacted]). Ms Stodart denied having been rude to [name redacted].

The meeting concluded with Ms Stodart required to work the new permanent roster including two days per week in the on-line department.

Ms Vaughan’s evidence was that despite having conducted many meetings with staff in her role, she felt threatened and intimidated by Ms Stodart’s words and aggression during the second roster meeting.[24]

Ms Stodart’s evidence was that she left the second roster meeting feeling frustrated, stressed and undervalued.[25]

Ms Stodart took personal leave the next day as she felt too unwell to work.

Apology

The next day (25 August 2021) Ms Stodart sent a text message to Ms Vaughan in the following terms:[26]

“hey, I realise how difficult I am being, & have been, over the [Person A] developments. I apologise for that, I really didn't think it would all be so hard. I also must apologise for my atrocious behaviour on monday. I am happy to work wherever I'm needed, & if that is front-end with [Person A], I can do that too ... cheers, tiff.”

There is a factual dispute between Ms Stodart and Ms Vaughan as to whether, upon her return to work, Ms Stodart followed-up this text apology by taking Ms Vaughan aside and repeating the apology face-to-face. On this I prefer Ms Stodart’s evidence. It was specific and plausible.[27] Ms Vaughan’s recollection as to whether a face-to-face apology was made was vague. I find that a brief face-to-face apology was made following the text apology.

Disciplinary meeting – 30 August - warning

In the days following, and after being informed by Ms Vaughan of Ms Stodart’s conduct during the second roster meeting, Ms Noordhoek decided that Ms Stodart’s conduct towards employees and managers had become unacceptable and warranted disciplinary sanction.

A letter advising a disciplinary meeting dated 26 August 2021 was sent.[28] The letter set out specific allegations of “unprofessional” behaviour at the first and second roster meetings. It also included the “fucking bitch” allegation.

The disciplinary meeting was held on 30 August 2021.

Ms Noordhoek, using pre-prepared notes as a guide, repeated that the employer had sought legal advice concerning Person A and that “if we were to terminate his employment we would be discriminating against him.”[29]

Ms Noordhoek sought Ms Stodart’s response to the allegations. Ms Stodart responded in general terms. She did not deny the specific allegations but asserted that the company could have avoided the problem by doing police checks. She rolled her eyes as Ms Noordhoek was speaking. Her text apology to Ms Vaughan was noted but Ms Noordhoek indicated that it did not make her bad behaviour “go away”. The allegation that Ms Stodart had called Ms Noordhoek a “fucking bitch” was specifically put. It was neither admitted nor denied. Ms Noordhoek then said words to the effect:[30]

“We have two possible outcomes from this meeting. The first is you receive a first and final warning for serious misconduct. The second is that your employment is terminated. If you are allowed to stay in the business you will need to rebuild relationships…You will not be relieving…in the office. Your roster will be what was presented to you on 23 October…You will be on a first and final warning, so any repeat behaviour like this, will result in termination of your employment.”

Ms Noordhoek and Mr Wilson adjourned the meeting to consider their decision. The store manager recommended to Ms Noordhoek dismissal, expressing the view that Ms Stodart had shown no remorse and had rolled her eyes during the meeting. Ms Noordhoek responded that a fairer process would be a first and final warning.[31] Upon return, Ms Noordhoek advised that Ms Stodart would be given a first and final warning. Ms Noordhoek’s evidence was:[32]

“Due to the stress that the Applicant felt regarding the co-worker, I decided that the Applicant should receive a first and final warning.”

A first and final warning letter dated 30 August 2021 was then sent to Ms Stodart. It read:[33]

“Dear Tiffany,
….
The discussion was around your behaviour in the past 2 months. We have tried to work with you to come up with a solution to address your concerns over working with [Person A], but you have not been happy with any of the suggested solutions. The way you have spoken to and about other staff members is unacceptable and is considered serious misconduct. Your behaviour affects other staff members as they are put in a position of having to decide whether to report it or ignore it.
The fact that you sent a text message to Brooke apologizing for your behaviour does not change anything. This appears to be a pattern of behaviour where, if you don't get your own way, you throw a tantrum, walk out, then apologise and think that everything is OK again. This is not professional and is not acceptable.
Going forward you will need to rebuild the relationships that you have damaged by your behaviour, in particular with Brooke and Store Management. You will no longer be the backup for Maria in the office. Your roster will be as presented by Cam & Brooke in the meeting of 23rd August 2021.
….
We have recorded a First and Final Formal Warning against you. Any further behaviour similar to that outlined in the letter dated 26th August 2021 that was the subject of this meeting, will result in the termination of your employment.
Yours faithfully
Kathy Noordhoek
Group Manager Recruitment, Training, People and Culture”

Incident 27 September

During the following four weeks, Ms Stodart worked the new roster, including two days per week in the on-line department. The on-line department was busy due to a high number of customer on-line orders. On-line staff were under pressure and the on-line manager, Ms Campbell, found it a challenge to send staff on breaks and have staff take breaks when directed in light of the workload.

On 27 September 2021 Ms Campbell and Ms Stodart were both picking purchases in the fruit and vegetable department to meet on-line orders. Ms Campbell had earlier directed Ms Stodart to take a required break. Ms Stodart was frustrated at the on-line work, at having been directed to take a break and having a consequent backlog to complete. On the shop floor and in the presence of customers she could not control her frustration. She raised her voice and with both arms raised above waist height and being waved around she said words to the effect:[34]

“Lunch was a waste of time now I have all this to pick”.

Ms Campbell, working about five metres away, approached Ms Stodart and told her to calm down. Ms Stodart’s outburst continued as she repeated, in what Ms Campbell described was an angry manner, that she will never have a lunch break again. Ms Campbell attempted to defuse the situation by saying words to the effect “I was just trying to help as you didn’t have one last week until 3pm”.[35]

The incident ended. Though customers were in the vicinity, Ms Campbell did not apologise to the customers.

A short time later, after Ms Stodart and Ms Campbell had moved to pick orders in a different department on the shop floor (dairy), Ms Campbell heard Ms Stodart continue to express frustration at the on-line work and being forced to take breaks.

Ms Campbell’s evidence, which I accept was that:[36]

“I’ve worked for the company for 13 years and never have I been spoken to like that before.”

Later that day three employees ([name redacted], [name redacted] [name redacted]) separately approached Ms Campbell and said they had that day or in days prior been spoken to or witnessed Ms Stodart speaking rudely to themselves or contractors. After speaking to Ms Vaughan, the next day (28 September) Ms Campbell asked for a written statement from each. Each employee provided a written statement.[37]

Ms Campbell notified the store manager (Mr Blanton) of the 27 September 2021 incident and the statements of the three employees (and her handwritten statement).

Disciplinary meeting – 30 September - dismissal

The following day, 29 September 2021, Mr Blanton informed Ms Noordhoek of the shopfloor incidents between Ms Stodart and Ms Campbell, and the written statements of three employees alleging further instances of rudeness.

Ms Noordhoek considered the matter serious in light of the previous warning. She drafted and sent Ms Stodart a letter dated 28 September 2021 notifying further allegations and scheduled a disciplinary meeting for 30 September. The letter concluded:[38]

“Due to the fact that you have recently received a first and final warning for similar behaviour, these matters may lead to termination of your employment.”

In advance of the meeting Ms Noordhoek discussed the employer’s options with the store manager Mr Blanton. Both agreed that unless significant mitigating or extenuating circumstances were provided by Ms Stodart by way of explanation that, in light of the previous warning, she would be dismissed.

Ms Stodart attended the disciplinary meeting. Though advised she could, Ms Stodart did not bring a support person. She was rostered to work that day but attended the meeting not wearing her work uniform and had her partner waiting outside, as she considered dismissal likely.[39] Ms Noordhoek and Mr Blanton attended.

Ms Noordhoek referred to the allegations letter and requested a response. Ms Stodart had prepared a typewritten statement. It is in evidence.[40] I accept Ms Noordhoek’s evidence that Ms Stodart largely read from that statement.[41] Ms Stodart:

said that she had been “a bit cranky” and “a bit shirty” on 27 September 2021 but also said she had apologised to Ms Campbell and the on-line team the next day and her comments had not been directed to any particular person;

said that the incident with Ms Campbell had arisen because she was frustrated and under stress and because of “faulty equipment”;

said that the events of the past two months had affected her mental and physical wellbeing. This was made worse by the “instruction to stay silent” about Person A; and

said she “felt singled out” and “had unreasonable work expectations” placed on her.

Ms Stodart added:

“I would like to be honest about how I am feeling about work at the moment. I feel that since I have brought the concerns about an employee’s past criminal record to your attention, that I have been treated differently, even punished. I have been moved from a department that I thrived in and was able to contribute to both the business and the community.”

She concluded:

“I do wonder what my options could be? I really loved working here, and I am good at it…I am not here today to beg for my job. No job is worth this stress, pressure and scrutiny. I am happy to work anywhere…but I won’t be where I am not valued or wanted. Or where I am unfairly treated…Can I work back in variety and the other employee move departments on certain days?”

Ms Noordhoek considered the response. She formed the view that Ms Stodart had shown a lack of remorse by blaming faulty equipment and a busy day for her behaviour in the on-line department on 27 September. She considered that in light of the previous warning and what she considered to be Ms Stodart’s lack of willingness to compromise by accepting the alternate work duties or transfer to another store, her employment would be terminated.

Ms Noordhoek then advised Ms Stodart that she was dismissed, effective immediately.

Ms Stodart left the store.

Terms of dismissal

Immediately following the meeting, and in advance of preparing a formal letter of termination, Ms Noordhoek sought advice from company lawyers about the terms of dismissal.

Based upon advice, Ms Noordhoek decided that though she considered the conduct serious misconduct, the employer would dismiss on notice with four weeks paid in lieu.

A letter of dismissal dated 30 September 2021 was drafted and sent. It read:[42]

“Dear Tiffany.
…
The meeting commenced with checking that you were OK to proceed without a support person. You said you were OK.
You were reminded that on 30th August you received a first and final warning for serious misconduct, and that there were behavioural expectations as a result of that warning.
You were advised that we received multiple complaints from your co-workers about your behaviour on 27th September. You read a prepared statement in response to this, stating that it was very busy, you were under stress and that faulty equipment caused unnecessary delays. You also said that you later apologized to your coworkers and Manger for your behaviour. You also raised concerns about [Person A]’s reaction to an incident that happened 3 weeks ago, which you said contributed to your stress levels.
It was explained that all staff in the department were under the same pressure, and that your behaviour is unacceptable. You do not seem to have any understanding of the impact that your behaviour has on other staff. You were also asked why you did not report your concerns over [Person A] to management at the time. You claimed it was because you were not allowed to speak about him. It was explained to you that relates to talking about him to other staff, not to management.
Outcome
As a result of your behaviour and the fact that you received a first and final warning recently for similar behaviour, your employment was terminated effective immediately. You will be paid your 4 weeks' notice period (3 weeks for years of service, plus 1 week as you are over 45) and all outstanding leave entitlements in the next pay run.
Yours faithfully
Kathy Noordhoek
Group Manager Recruitment, Training, People and Culture”

Ms Stodart filed unfair dismissal proceedings under her own hand on 20 October 2021.

Submissions

Ms Stodart

Ms Stodart claims her dismissal was harsh, unjust or unreasonable. She seeks an order for reinstatement or, in the alternative, compensation.

She claims her dismissal was unfair on three grounds:

there was no valid reason for dismissal;

in the event of a valid reason, dismissal was harsh because it was a disproportionate response given the overall mitigating circumstances; and

her conduct on 27 September 2021 that triggered dismissal were not acts of serious misconduct.

Ms Stodart submits that given the absence of a valid reason and the fact that she was a good and efficient employee with a strong work ethic, she should be reinstated to her former position.

In the alternative, but less preferentially, Ms Stodart submits that she should be compensated for the period she would have worked but for the fact she had been dismissed.

The employer

The employer contends that dismissal was not harsh, unjust or unreasonable and no issue of remedy arises. It submits:

there was a valid reason for dismissal having regard to Ms Stodart’s conduct. Reasonable accommodation had been made to address Ms Stodart’s perceived issues of concern with a co-worker through changed duties and rosters and reasonable allowance had been made for her frustrations and stresses. By a pattern of behaviour that failed to show respect and courtesy to employees and managers, Ms Stodart had breached her employment obligations;

dismissal was a proportionate response to the misconduct particularly in light of the first and final warning; and
the employer reasonably lost trust and confidence in Ms Stodart despite the fact that she was otherwise a capable employee.

In the alternative, the employer submits that reinstatement is not practicable because the employer, including senior managers, reasonably lost trust and confidence in Ms Stodart. The employer says Ms Stodart remains disgruntled and hostile and lacks insight into the impact her workplace behaviours had on others.

In the alternative, compensation should not be ordered because Ms Stodart was paid four weeks in lieu of notice, failed to mitigate her loss and on account of her contributory misconduct.

Consideration

There are no jurisdictional or preliminary issues arising.

I am satisfied that Ms Stodart was a person protected from unfair dismissal within the meaning of section 382 of the FW Act. She served the required minimum employment period (section 382(a)). Her annual rate of earnings did not exceed the high income threshold (section 382(b)(iii)). Her employer was a “national system employer” within the meaning of section 14 of the FW Act. Her application was filed within the required 21-days after dismissal.

As noted, the employer is not a “small business” for the purposes of the unfair dismissal provisions of the FW Act.

I now consider whether Ms Stodart’s dismissal was unfair.

I take into account all evidence and submissions before me. Given the breadth of evidence, I specifically deal with matters most material to arriving at a decision. Some evidence and submissions are not referenced, not because I have not considered them, but because doing so would add excessive length to these reasons.

Section 387 of the FW Act provides:

“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.”

Valid reason

Valid in this context is generally considered to be whether there is a “sound, defensible or well-founded” reason for dismissal and on that is not “capricious, fanciful, spiteful or prejudiced.^[43] In considering whether a reason is valid, the requirement is to be applied in the practical sphere of the relationship between an employer and an employee where each has rights, privileges, duties and obligations.

The Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the employer’s position. The question the Commission must address is whether there was a valid reason for dismissal related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees).

The reason for termination must be defensible on an objective analysis of the relevant facts. Other than in cases of summary dismissal by a small business[44], it is not enough for an employer to establish that it had a reasonable belief that termination was for a valid reason.[45] In cases relating to alleged conduct, the Commission must make a finding, on the evidence provided, whether, on the balance of probabilities, the conduct occurred. The employer bears the evidentiary onus of proving conduct on which it relies.

Facts justifying dismissal which existed at the time of the termination can be considered, even if the employer was unaware of those facts and did not rely on them at the time of dismissal.[46]

A valid reason is not assessed simply by reference to a legal right to terminate a contract of employment.[47]

In this matter, the reason for dismissal advanced by the employer is a loss of trust and confidence in Ms Stodart’s compliance with her duty to treat persons with dignity, courtesy and respect. The particulars relied on are incidents of alleged rudeness and insubordination which the employer says constitute a pattern of behaviour such that its loss of trust and confidence was reasonably based.

A preliminary issue in considering valid reason is the submission by Ms Stodart’s counsel that only conduct occurring after the first and final warning is relevant to whether a valid reason for dismissal existed. Ms Stodart submits that as pre-warning conduct had been the subject of disciplinary action by the employer, and as the employer decided to warn and not dismiss, then the pre-warning conduct is not relevant to whether a valid reason for dismissal existed.

With the caveats that follow, I do not accept this submission.

Firstly, an earlier disciplinary response does not expunge the fact that earlier misconduct occurred. If evidence before the Commission establishes such conduct to the requisite standard of proof, it is open for the Commission to make findings of fact on such matters.

Secondly, such findings are relevant because the Commission is not inquiring into the narrow question of whether a particular disciplinary response by an employer should have been taken. The Commission does not place itself in the position of the employer. The Commission is objectively examining the circumstances to consider whether, in objective terms, a valid reason for dismissal existed, as one factor in assessing whether the dismissal was unfair. Taking into account conduct giving rise to a warning is not punishing twice; it is considering facts necessary to perform the objective assessment required by the FW Act.

However, I do accept that pre-warning conduct needs to meet the usual tests of relevance. For example, conduct that is historic or trivial or of no or little connection to the dismissal could be seen as irrelevant or, if only tangentially relevant, accorded little weight.

Further, s 387(e) specifically requires consideration of whether warnings for unsatisfactory performance were given. In considering the broader question whether a dismissal is harsh, issues of proportionality (amongst others) may be relevant. That past conduct has been the subject of prior disciplinary warning may be relevant to a number of considerations such as procedural fairness and an overall assessment of harshness.

I now consider particulars of alleged misconduct to ascertain whether they individually or collectively constituted a valid reason for dismissal.

Describing a co-worker as a paedophile who was grooming female staff members

This is alleged pre-warning conduct.

I have found that Ms Stodart described Person A in these terms at the first roster meeting on 9 August 2021.

In context, it was not misconduct. The words were said in a closed meeting with managers specifically convened to discuss Ms Stodart’s concerns about Person A. Ms Stodart believed both elements of her description to be true. Person A had been convicted in a court of law for an historic sex offence with a minor.

As to the assertion of grooming, Ms Stodart refused to provide details that would have enabled the employer to investigate any alleged workplace misconduct. On such a sensitive issue, and notwithstanding the seriousness of the claim, I do not consider the failure by Ms Stodart to provide names of employees she was concerned about to have been misconduct.

However, having made that choice, it was incumbent on Ms Stodart to accept that a number of consequences arose. Firstly, that it was the employer and not her who would determine whether and what (if any) action could or would be taken against Person A. Secondly, by only expressing a generalised apprehension about Person A without providing supporting particulars, management was constrained by the employer’s legal advice that no reasonable basis existed to sanction Person A. Thirdly, Ms Stodart was obliged to comply with the employer’s direction not to discuss the issue with other employees or Person A. There is no evidence before me that Ms Stodart subsequently described Person A in these terms outside specifically convened roster or disciplinary meetings.

In context and given her genuinely held apprehension, Ms Stodart’s description of Person A in these terms on 9 August 2021 was not misconduct.

Not accepting the employer’s decision concerning Person A

The employer decided to continue to employ Person A in his employed role and not terminate his employment, reduce his hours, change his duties or move him to another store as advocated by Ms Stodart. [Sentence redacted].[48] The employer’s decision not to take action against Person A absent evidence of workplace misconduct was based on legal advice.

The evidence clearly establishes that both pre-warning and post-warning Ms Stodart disagreed strongly with the employer’s response; from the time of the first roster meeting (9 August), throughout subsequent meetings (23 and 30 August) and until dismissed (30 September 2021).

I find that Ms Stodart’s conduct in the workplace after 9 August 2021, her deteriorating attitude and her loss of satisfaction in the job were directly a consequence of her strong disagreement with the employer’s response and her belief that it was her and not Person A who was being ‘punished’ and that this was unfair. This is readily apparent from her email to store manager Mr Wilson on 14 October 2021 when she frankly summarised her feelings (repeated in evidence[49]) by observing:[50]

“I am now a disgruntled employee.”

It is not misconduct for an employee to disagree with an employer’s response to a workplace issue, even a response reasonably made. Ms Stodart had legitimately raised a serious issue about a co-worker of which the employer appears not to have previously been aware. She was within her rights to disagree with the employer’s response or its adequacy.

Whether misconduct arose is not to be assessed by whether Ms Stodart disagreed with the employer’s response but whether Ms Stodart manifest that disagreement in a way that was insubordinate or otherwise breached her employment duties. These are matters considered below.

The mere fact Ms Stodart did not accept her employer’s response was not an act of misconduct.

Telling a senior manager Ms Noordhoek that she was “not very good at her job”

This is alleged conduct at the first roster meeting on 9 August 2021 (pre-warning).

I have found that Ms Stodart told Ms Noordhoek at that meeting she was “not very good at her job”.

This was insubordinate. Whilst it was said in the context of a structured meeting where Ms Stodart was told that the employer would not sanction Person A in the manner she sought, and whilst that provides some contextual mitigation given that her concern about Person A had been raised in good faith, there are other factors which make this conduct serious:

it was said to a senior manager;
it was gratuitous and disrespectful both in word and in tone;
it was not an aside or off-the-cuff remark. Ms Stodart had exited the room at the end of the meeting and then re-entered to direct the remark at Ms Noordhoek; and
it was not a private disagreement. It was said in the presence of a store manager (Mr Wilson) and thus had the capacity to not just damage the relationship between Ms Stodart and Ms Noordhoek, but also between Ms Stodart and store management.

The conduct was insubordinate and constituted misconduct.

Telling her supervisor Ms Vaughan that she was a “shit front-end manager who does nothing”

This is alleged conduct at the second roster meeting on 23 August 2021 (pre-warning).

I have found that Ms Stodart told Ms Vaughan at that meeting that she was a “shit front-end manager and you do nothing all day”.

This was a clear act of misconduct. It was said in the context of a structured meeting where Ms Stodart had expressed unhappiness about her temporary roster and continuing concerns about what she considered the employer’s inadequate response to sanctioning Person A. I take into account that the employer had presented its permanent roster solution as non-negotiable. This elevated Ms Stodart’s frustration and contextualises the misconduct. However, given the earlier roster meeting, subsequent communication and the time that had since elapsed, the employer’s position was not unreasonable. There are counterveiling factors which characterise this conduct towards the serious end of the scale:

it was said to Ms Stodart’s line manager;
it was not only abusive and foul in word but also in tone; and
it was not a private disagreement. It was again said in the presence of the store manager (Mr Wilson) and thus had the capacity to not just damage the relationship between Ms Stodart and Ms Vaughan, but again between Ms Stodart and store management.

Whilst I take into account that Ms Stodart apologised by text for her (aptly described) “atrocious behaviour”[51] and then briefly in person to Ms Vaughan, the conduct was insubordinate. It was misconduct at the higher end of the scale.

Describing work in the on-line department as able to be performed by “monkeys” and describing persons she worked with as “monkeys”

This is alleged conduct at the second roster meeting on 23 August 2021 (pre-warning).

Having preferred Ms Vaughan’s evidence on this matter, corroborated as it was by her written notes, I have found that during the meeting Ms Stodart said words to the effect “on-line is something for monkeys” and “I’ve seen who work in there. Monkeys”.

This was rude and insulting. Ms Stodart showed indifference to the fact that she was describing fellow employees in the on-line department in a belittling manner. What makes this misconduct insubordinate is that between both remarks Mr Wilson intervened and observed that he did not think on-line would appreciate that comment. In other words, it was drawn to Ms Stodart’s attention by the store manager that the monkey comment was inappropriate. In the face of that counsel, Ms Stodart did the opposite. She repeated the monkey description in even less ambiguous terms.

Whilst I take into account that Ms Stodart was frustrated at being rostered in the on-line department and that her skill set went beyond picking orders, this was misconduct. It was not only disrespectful to fellow employees in the on-line department but repeating the remark was insubordinate to Mr Wilson who had cautioned against it. The misconduct lies in the fact that the remark was repeated and that Ms Stodart was indifferent to the fact she was repeating the offensive remark.

Describing co-workers as “monkeys” in the face of being cautioned by the store manager not to do so was misconduct and insubordinate.

For the sake of completeness, I observe that had I accepted Ms Stodart’s evidence as to what was said, I would still have concluded her statement to have been disrespectful and misconduct albeit not, given the different narrative, quite as serious.

Describing the human resources manager Ms Noordhoek as a “fucking bitch”

This is alleged conduct by Ms Stodart reported to Ms Noordhoek shortly after the 9 August roster meeting (pre-warning).

Ms Noordhoek had been told by the store manager Ms Murphy that this had been said by Ms Stodart in a conversation between Ms Stodart and another employee [name redacted], who had relayed it to Ms Murphy.

Despite having found that on 9 August 2021 Ms Stodart held a dim view about Ms Noordhoek (having said to her face that she was not very good at her job) the allegation, serious as it is (and noting the Briginshaw standard[52]), is not established to the requisite standard of proof.

Neither Ms Murphy nor [name redacted] were called. Ms Stodart denied in evidence that she used those words. Whilst her denial was not convincing[53], there is insufficient evidence to make a finding of fact. Double hearsay is patently not a basis for such a finding. The employer submits that the allegation was put to Ms Stodart at the first disciplinary meeting for response and was not denied. Though the employer’s request that the allegation be responded to was reasonable, neither the absence of a denial at that meeting nor an unconvincing denial in the witness box permit an inference to be drawn on a serious allegation, absent direct evidence.

Whilst Ms Stodart’s failure to respond to the allegation in the disciplinary meeting was unreasonable, I make no finding that she called Ms Noordhoek a “fucking bitch”.

Engaging in a disruptive outburst towards Ms Campbell in the presence of customers on 27 September 2021

This alleged post-warning conduct on 27 September 2021.

I have found that Ms Stodart whilst on the shop floor and in the presence of her line manager Ms Campbell, and whilst in the vicinity of customers, raised her voice and said in an aggressive and frustrated tone that “lunch was a waste of time now I have all this to pick” and that she continued for a short time even after Ms Campbell had told her to calm down, and continued to express frustration in the presence of staff later that day.

Ms Stodart accepted that she had been a “a bit cranky” and “a bit shirty” to on-line staff that day but had apologised the next day.

I am satisfied that Ms Stodart’s conduct was a breach of duty to act in a courteous and professional manner. It was misconduct borne of frustration.

I do not accept Ms Stodart’s submission that the conduct was trivial. It was at the moderate end of the scale. Whilst the words used were not abusive, the outburst was angry and demonstrative (despite Ms Stodart’s denials[54], which I have not accepted; I prefer Ms Campbell’s evidence that the outburst was “pretty loud” and “very loud” and “very aggressive”[55]). Its seriousness also lies in the fact that it was on the shop floor during trading hours, in the presence of customers, was unprovoked (being directed to take a rest break is not provocation), continued after a manager (Ms Campbell) had asked her to calm down, and the “cranky” and “shirty” attitude (to use Ms Stodart’s description) continued into the afternoon (including elsewhere on the shop floor where Ms Stodart was “still venting”[56] but no longer rude or disruptive). There is no evidence before me that equipment being used that day was faulty (as claimed by Ms Stodart at the subsequent disciplinary meeting), and I make no such finding.

Although Ms Campbell had been asked (not unreasonably) by Mr Wilson and Ms Vaughan to “keep a close watch”[57] on Ms Stodart (given her earlier outbursts), Ms Campbell neither provoked nor overreacted to the incident. Indeed, she tried to defuse the volatility. Nor do I consider that Ms Campbell embellished her evidence to the Commission about that day’s events.

In its own right and had it been a one-off, it was at a level of seriousness to warrant counselling or other disciplinary action but not dismissal. However, considered in context (the earlier first and final warning) and considered collectively with other like behaviours it was a material act of misconduct and one capable of triggering a valid reason for dismissal.

Being rude or uncooperative in exchanges with other employees including [name redacted], [name redacted], [name redacted], [name redacted]and [name redacted]

This is alleged pre and post-warning conduct.

The allegations of pre-warning conduct are contained in the handwritten complaints by three employees ([name redacted], [name redacted] [name redacted]) provided to Ms Campbell (and then Ms Noordhoek) on 28 September 2021.

I do not make specific findings of misconduct. Neither [name redacted], [name redacted] [name redacted] were called. The handwritten notes are not evidence of the truth of what is alleged therein. Ms Stodart’s evidence was that “I may have been short with some of my colleagues and apologised”.[58] Whilst I find that Ms Stodart apologised for speaking rudely to employees on and around 27 September 2021 (and thus draw an inference that she had in some general sense been rude), I only make findings about specific rudeness to Ms Campbell that day. I do not make findings to the requisite standard of proof concerning specific rudeness to [name redacted], [name redacted] or a contractor.

For similar reasons, I make no findings concerning alleged rudeness referred to in employee statements earlier supplied to the employer by [name redacted] [name redacted].

Breaching duties under the employer’s Discrimination, Harassment, Bullying or Intimidation Policy

This is alleged as both pre and post-warning conduct.

Ms Noordhoek formed the view that Ms Stodart’s conduct in her final three months of employment evidenced a lack of respect for management and that she failed in her duty “to treat everyone with dignity, courtesy and respect” as required by the employer’s Discrimination, Harassment, Bullying or Intimidation Policy.[59] Ms Stodart was aware of the policy and had received it when first employed.

For this to be a valid reason it needs to be supported by more than Ms Noordhoek’s subjective belief. A valid reason must be objectively supportable; anything less would fail to give effect to the ‘fair go all round’ principle that governs the operation of Part 3-2 of the FW Act.

Having regard to the findings of misconduct that have been made, considered overall, the evidence supports this conclusion. I conclude that Ms Stodart exhibited an attitude and pattern of behaviour that caused unease in the workplace and failed to show respect and courtesy to employees and managers from 9 August 2021 until her dismissal on 30 September 2021 and that this was a breach of her employment obligations.

Conclusion on valid reason

To fairly assess whether a valid reason existed, Ms Stodart’s conduct needs to be objectively assessed against her contractual obligations as a whole and considered in the context of surrounding circumstances applicable at the time of relevant conduct.

An assessment of valid reason must be made in context. One important contextual matter is that Ms Stodart raised genuine issues of concern about Person A on 4 and 5 July 2021, had advised on 10 July that she felt unsafe working alongside Person A and that she wanted the employer to make changes to the working arrangements of both her and Person A to accommodate her concerns about her well-being, that of staff she supervised and his continued employment.

Whilst Ms Stodart was entitled to disagree (even unreasonably) with the manner in which her employer handled the issues raised, her views about Person A and her views about the changed roster did not vitiate her contractual obligations. These included the duty to act professionally, courteously and respectfully.

I have found separate instances of misconduct over a two-month period whereby Ms Stodart acted in breach of those duties.

I note that I have not found that Ms Stodart had described Ms Noordhoek a “fucking bitch” yet the conduct relied upon by the employer when making its decision to dismiss included its view that this had occurred.[60] However, this does not materially impact the assessment I make of valid reason. The Commission’s decision is based on my findings alone. It is not an assessment of whether the employer believed on reasonable grounds that particular conduct had occurred.

Considered collectively, there was a valid reason for dismissal. The breaches I have found collectively establish a pattern of behaviour in which Ms Stodart failed to show respect and courtesy to employees and managers from 9 August 2021 until dismissed on 30 September 2021. Whilst my conclusion is based on a collective pattern of conduct, some instances of rudeness and insubordination were valid reasons for dismissal in their own right.

Objectively considered, there was a sound, defensible and well-founded reason. The employer did not manufacture or unreasonably provoke the misconduct nor act capriciously or for prejudicial reasons.

A valid reason weighs against a finding of unfair dismissal.[61]

Notification of reason for dismissal

Notification of a valid reason for dismissal should be given to an employee protected from unfair dismissal before a decision is made to terminate their employment[62] and in plain and clear terms.[63]

Ms Stodart was advised at the conclusion of the dismissal meeting that she was being dismissed for misconduct in that she had failed to treat fellow employees and managers with dignity, courtesy and respect.

A dismissal letter sent later that day advised Ms Stodart of the reason (failure to meet “behavioural expectations”) and also advised that her dismissal was on notice with payment in lieu.

Whilst Ms Stodart considered the reason for dismissal to be unjustified, she was informed in those broad terms.

This is a neutral consideration.

Opportunity to respond

An employee protected from unfair dismissal should be provided an opportunity to respond to a reason for dismissal relating to their conduct or capacity. An opportunity to respond should be provided before a decision is taken to terminate an employee’s employment.[64]

The opportunity to respond is an element of procedural fairness but does not require formality. This consideration is to be applied in a common-sense way to ensure the employee is treated fairly.[65] Where an 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, that is enough to satisfy this consideration.[66]

Ms Stodart had full opportunity to respond to the first set of allegations at the first disciplinary meeting.

In respect of the allegations put at the second disciplinary (dismissal) meeting, an opportunity to respond was provided prior to a concluded decision to dismiss being made.

I take into account that an in-principle decision to dismiss had been made in advance of the second disciplinary meeting, Ms Noordhoek having discussed with matter with store manager Mr Blanton. Ms Noordhoek had formed a view that unless some exceptional mitigating circumstance or explanation was provided by Ms Stodart, she was to be dismissed.

I am satisfied that, despite Ms Noordhoek approaching the meeting in this manner and with a view disposed towards dismissal, that Ms Stodart was notified of relevant allegations and was provided an opportunity to respond in advance of a concluded decision being made.

I am also satisfied that her response was considered and that had her response provided significant new insights the in-principle decision was not set in stone. Dismissal was advised and in the hours that followed a dismissal letter was prepared (after the employer obtained legal advice on the terms of dismissal).

Considered overall, I do not conclude that Ms Stodart was denied procedural fairness.

This consideration does not weigh in favour of a finding of unfairness.

Opportunity for support person

Where an employee protected from unfair dismissal has requested a support person to assist in discussions relating to dismissal, an employer should not unreasonably refuse that person being present.

Ms Stodart had advance notice of disciplinary meetings and was advised of opportunities to be accompanied by a support person if she wished. No requests were made.

The employer did not unreasonably refuse Ms Stodart a support person; indeed the contrary, it informed Ms Stodart of her right to do so.

This is a neutral consideration.

Warnings concerning performance

Ms Stodart was given a first and final warning following the first disciplinary meeting on 30 August 2021.

This warning was given formally and in circumstances where written notice had been given of the first disciplinary meeting and an opportunity had been given to respond to the allegations on which the warning was based.

The warning, coming as it did after the employer had assessed Ms Stodart’s conduct as having “got worse over the last month”[67] was expressed in clear terms:[68]

“The way you have spoken to and about other staff members is unacceptable and is considered serious misconduct. Your behaviour affects other staff members as they are put in a position of having to decide whether to report it or ignore it.
……
We have recorded a First and Final Formal Warning against you. Any further behaviour similar to that outlined in the letter dated 26^th August 2021 that was the subject of this meeting, will result in the termination of your employment.”

That Ms Stodart received a formal warning concerning misconduct in unambiguous terms one month prior to being dismissed and after two earlier meetings to discuss her concerns, including a caution in one of those meetings not to describe other staff in a belittling manner (a caution she ignored), weighs against a finding of unfair dismissal.

Size of enterprise and human resource capability

The employer is a medium sized business with a dedicated human resource capacity. It is not a small business within the meaning of the FW Act.

There is no sense in which the size of the employer or its internal human resources capacity mitigate any shortcomings in managing workplace or disciplinary matters.

This is a neutral consideration.

Other matters

Ms Stodart submits that the dismissal, even if for a valid reason, was unfair because it was harsh. The grounds on which harshness is asserted are considered below.

Harsh because Ms Stodart was acting in good faith and felt isolated and physically and mentally unwell by the employer’s response

Ms Stodart raised concerns about Person A’s background in good faith. She was concerned about the welfare of younger female staff members working alongside Person A, and her wellbeing. She raised concerns in the context of the employer’s duty of care.

However, having legitimately raised concerns it was incumbent on Ms Stodart to maintain her professional obligations in the workplace even in the face of disagreement with the employer’s response. She was advised that the employer had taken professional advice on the issue and was informed why the employer was not taking action to terminate Person A or move him to another store. [Part sentence redacted], she was advised to either report specific problems or provide names to enable an investigation (which she did not do) and ensure staff she supervised were aware of internal complaint processes.

Not having persuaded the employer to terminate or relocate Person A, the workplace became an unhappy environment for Ms Stodart. Convinced by the righteousness of her cause (identifying an historic sex offender and wanting him removed from her place of work), Ms Stodart felt physically and emotionally exhausted. She had drawn a serious matter to the attention of management in circumstances where they appeared to have not known about Person A’s history. She took short periods of personal leave but upon return faced the same stressful realities. Continuing stress when at work in the face of disagreement with the employer’s response ought to have been reasonably foreseeable to Ms Stodart.

Given this, dismissal was not harsh on the ground that Ms Stodart had raised issues about Person A in good faith and had become frustrated at the employer’s response.

Harsh because Ms Stodart apologised for misconduct

Ms Stodart apologised after some instances of misconduct (for example after telling Ms Vaughan in the presence of Mr Wilson on 23 August that she was “a shit front-end manager and you do nothing all day” and after the outburst to Ms Campbell in the fruit and vegetable department on 27 September). That she did so is to her credit:

“I must apologise for my atrocious behaviour on Monday. I am happy to work wherever I’m needed…” (text to Ms Vaughan 25 August 2021)[69]; and

“I’m feeling particularly remorseful for my words to you the other day…” (text to Ms Vaughan 31 August 2021)[70].

However, an apology made after an act of misconduct followed by a subsequent act of misconduct of a similar type is indicative of a pattern of behaviour whereby Ms Stodart allowed her frustrations to override her obligation to act in a professional, courteous and respectful manner. The observation made by Ms Noordhoek at the first disciplinary meeting and repeated in the warning letter is supported by the evidence:[71]

“The fact that you sent a text message to Brooke apologizing for your behaviour does not change anything. This appears to be a pattern of behaviour where, if you don't get your own way, you throw a tantrum, walk out, then apologise and think that everything is OK again. This is not professional and is not acceptable.”

This pattern of behaviour diminishes the weight to be attached to the apologies. Further, the apology of 25 August 2021 in which Ms Stodart said that she was “happy to work wherever I’m needed” was not reflected in her subsequent conduct towards Ms Campbell on the shop floor on 27 September 2021 which clearly suggested continued unhappiness with working in the on-line department.

Given the pattern of disrespectful conduct, the fact apologies were made does not materially mitigate the breaches of duty so as to render the dismissal harsh.

Harsh because dismissal was a disproportionate response especially in regard to the conduct that triggered dismissal

There are three limbs to this submission.

Firstly, Ms Stodart submits that the conduct of 27 September 2021 which triggered dismissal was trivial.

I do not agree. Whilst not serious misconduct, it was misconduct. I have characterised the conduct at the moderate end of the spectrum. Considered alone, disciplinary action short of dismissal would have been reasonable but, given the events of the previous three months and the warning four weeks prior, there was a rational basis for that conduct to trigger the decision to dismiss.

The submission by Ms Stodart that the sanction of dismissal was disproportionate to the misconduct of 27 September 2021 fails to recognise that a valid reason for dismissal existed by reference to a pattern of misconduct, not a sole incident.

I do not consider that, in the circumstances of this matter, the fact of the warning letter reduces the weight to be given to the pre-warning acts of misconduct or the weight they are to be accorded in considering harshness. Whilst the conduct of 27 September 2021 was the only specific disrespectful conduct I have found in the four weeks following 30 August 2021, that warning letter put Ms Stodart on clear notice:

“Any further behaviour similar to that outlined in the letter dated 26th August 2021 that was the subject of this meeting, will result in the termination of your employment.”

In this matter, where the dismissal was rationally based on a pattern of misconduct, dismissal is not rendered harsh simply because serious acts of earlier misconduct were the subject of warning and not dismissal.

I take into account that those earlier acts of misconduct were not stale or historic. They occurred two and three months prior to dismissal.

I also take into account that those earlier acts of misconduct were of a broadly comparable character to the misconduct that triggered dismissal. They were rude and unsettling behaviours in which Ms Stodart allowed frustration to override her duty to act with professional respect to others.

I further take into account that, when given the warning, nothing was said or done by the employer to objectively expunge the relevance of Ms Stodart’s earlier misconduct. Ms Noorbroek’s evidence, which I accept, was that at the first disciplinary meeting she decided on a warning (and not dismissal) simply due to the evident stress Ms Stodart was under. The warning letter told Ms Stodart that her conduct was viewed as “serious misconduct”. It would be perverse if an employer, acting to give an employee a second chance to maintain their job despite wrongdoing, is subsequently prejudiced for having done so. Such an approach could discourage leniency in managing disciplinary issues resulting in the blunt axe of dismissal being more readily applied.

Secondly, Ms Stodart submits that her conduct overall did not warrant dismissal.

I do not agree. The conduct comprised acts of disrespect and insubordination at both the serious and moderate ends of the spectrum and was in breach of duties to act with professional courtesy and respect to managers, supervisors and other employees. Occurring over a period of months, Ms Stodart had time to reflect on her conduct and manage her frustrations yet repeated the disrespectful behaviour. Her conduct became unsettling, intimidating and destructive of trust and confidence.

Thirdly, Ms Stodart submits that the misconduct was not serious misconduct.

This submission fails on three grounds. Firstly, the Commission’s role is to consider (amongst other matters) whether there was a valid reason for dismissal, not to find serious misconduct. I have found a valid reason existed. Secondly, even if Ms Stodart’s conduct on 27 September 2021 (triggering dismissal) fell short of serious misconduct, she was not summarily dismissed. She was dismissed on notice – paid four weeks in lieu. Thirdly, the termination letter did not assert dismissal for serious misconduct; it used that descriptor for the pre-warning conduct only.

Neither the characterisation of the dismissal by the employer not its terms render the dismissal harsh.

There are no other relevant matters that arise or were advanced.

Conclusion

In considering whether Ms Stodart’s dismissal was “harsh, unjust or unreasonable” the Commission is required to consider each of the matters in section 387 of the FW Act to the extent relevant.[72] Those matters must be considered as part of an overall assessment. Each assessment must be made on its merits. That assessment is to be based on the ordinary meaning of the words, in their statutory context. Context includes the object stated in section 381(2) of the FW Act that:

“…the manner of deciding on and working out such remedies are intended to ensure that a “fair go all round” is accorded to both the employer and the employee concerned.”

In arriving at an overall assessment, the statutory considerations must be applied in a practical, common sense way to ensure that the employer and employee are each treated fairly.[73]

The ambit of the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd[74] as 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.”

In reaching my conclusion, I adopt the approach set out by a Full Bench of this Commission in B, C and D v Australian Postal Corporation T/A Australia Post:[75]

“[58] Reaching an overall determination of whether a given dismissal was “harsh, unjust or unreasonable” notwithstanding the existence of a “valid reason” involves a weighing process. The Commission is required to consider all of the circumstances of the case, having particular regard to the matters specified in s.387, and then weigh:

(i) the gravity of the misconduct and other circumstances weighing in favour of the dismissal not being harsh, unjust or unreasonable;

against

(ii) the mitigating circumstances and other relevant matters that may properly be brought to account as weighing against a finding that dismissal was a fair and proportionate response to the particular misconduct.

[59] It is in that weighing that the Commission gives effect to a ‘fair go all round’.”

Unfair dismissal matters are multifactorial.[76]

I take into account the observations of a Full Bench of the Commission in Parmalat Food Products Pty Ltd v Wililo:[77]

“The existence of a valid reason is a very important consideration in any unfair dismissal case. The absence of a valid reason will almost invariably render the termination unfair. The finding of a valid reason is a very important consideration in establishing the fairness of a termination. Having found a valid reason for termination amounting to serious misconduct and compliance with the statutory requirements for procedural fairness it would only be if significant mitigating factors are present that a conclusion of harshness is open.”

In this passage both the importance of a valid reason and procedural fairness are emphasised.

I have found a valid reason for dismissal based upon a pattern of behaviour that included rudeness and insubordination at both the serious and moderate ends of the spectrum.

I have found that whilst factors exist which mitigate the misconduct somewhat (such as Ms Stodart having initially acted in good faith; the health and emotional impacts of the issue on her; and her two apologies) the dismissal was not, considered overall, harsh by reference to those factors.

I have found that the dismissal was not procedurally unfair. Ms Stodart’s concerns had been responded to with options and explanations. She had been given notice of disciplinary meetings. She had received a first and final warning. She was provided an opportunity to respond to allegations of misconduct including those that triggered dismissal.

This matter is ultimately about Ms Stodart’s conduct, her duties as an employee and her dismissal. It is not about Person A.

I take into full account that the issues which arose between July and September 2021 were unexpected and challenging for both Ms Stodart and the employer. I also take fully into account that Ms Stodart had acted in good faith in first reporting information unearthed about Person A, and had been a competent and valued supervisor until her attitude and motivation spiralled downwards once it became apparent that senior management had not responded in the manner she saw fit.

No doubt Ms Stodart’s misconduct was a product of frustration. Each day (especially when working in the on-line department) she saw herself as penalised (not working on the front-end), but not Person A. After being directed not to discuss the matter on the shop floor (which, to her credit she did not), she felt isolated and found the obligation to be silent and not confront Person A stifling.

[Paragraph redacted]
[Paragraph redacted]
[paragraph redacted]
[paragraph redacted]
[paragraph redacted]
[paragraph redacted]
[Paragraph redacted].[78]

However, [part sentence redacted]; she was advocating for his termination or at least his relocation to another store and prohibition from working with younger female staff. Months later, in her evidence, she maintained this view.[79] Whilst the employer could have done more (such as giving prior notice of the two roster meetings; not having presented the permanent roster change as non-negotiable; [part
sentence redacted], the employer had not sat on its hands. It had advised Ms Stodart at least three times (8 July, 9 August and 30 August), in general terms, that legal advice precluded sanctioning Person A. Further, the employer had advised Ms Stodart as early as 8 July 2021 that staff she supervised should be advised of relevant internal complaint processes, of her right to report any specific conduct of concern, and of the employer’s willingness to investigate further if specific details (names or incidents) were provided. Between then and the date of dismissal, no specific concerns about Person A’s workplace conduct were reported to management by either Ms Stodart or others. [Part sentence redacted][80], [remaining part sentence redacted].[81]

In any event, Ms Stodart lacked insight into the fact that it was her who asked the employer to make roster adjustments to accommodate her discomfort working alongside Person A. She lacked insight into the fact that responsibility for the management of Person A was a more complex task than she simplistically portrayed. She lacked insight into the reality of the employer’s position that, after taking legal advice, it did not consider that grounds existed to sanction Person A absent workplace misconduct on his part. She lacked insight into the fact that whilst the employer was obliged to consider her wellbeing and that of those she supervised, she had not presented more than a generalised concern. In short, her sense of righteous cause and objection to a person convicted of an historic sex offence working alongside her and other female staff obscured the legal, industrial and ethical minefield of competing rights and obligations faced by management when a person with a past criminal record is working in a business.

In her evidence, given months later, she continued to exhibit this approach:

“I felt justified in that I said it [describing Ms Vaughan as “a shit front-end manager and you do nothing all day”] because I felt they were not doing their due diligence...”[82]

“What was needed was the business to not have him [redacted] young staff...”[83]

“They were moving me because he [Person A] had that [redacted] work and I couldn’t do that work.”[84]

The issue for determination by the Commission is not whether the employer should have dismissed Ms Stodart or could have done things differently. As noted, the Commission does not stand in the shoes of an employer in deciding which course it ought to take in managing difficult workplace issues. The Commission’s role is simply to conduct an overall assessment and objectively assess whether the course taken (dismissal) was harsh, unjust or unreasonable. Departure from that task would be error.

Applying that principle and considered overall, Ms Stodart’s dismissal was not in an objective sense unfair. Her strong sense of right and wrong led her to lack insight into what she was being told by managers via the warning letter and in meetings that preceded it. She failed to control her frustrations and allowed them to boil over into rude and insubordinate outbursts which damaged relationships with supervisors and managers. She became indifferent to the impacts of her conduct on others. Her duty to act in a professional and respectful manner was materially breached on more than one occasion. Only after the breaches did she express remorse but then, overcome again by frustration, repeated rude and disrespectful conduct. Her misconduct was not one-off, but a pattern.

In these circumstances, given that the loss of trust and confidence was reasonably based and that an unambiguous warning of potential termination had been issued a month prior should misconduct be repeated (and it was), dismissal was not unfair.

Dismissal was a sad and regrettable end to a relationship between a motivated supervisor and a business that had been mutually harmonious and productive for four years. Regrettable as it was, these were events between adults who were unable to navigate a resolution to workplace differences arising from somewhat unique and challenging circumstances. The unfair dismissal jurisdiction is not a forum for judgement about broader public policy issues that concern re-entry into the workforce of persons with a criminal record (including those who have served custodial sentences for sex offences) or practices employers could adopt when employing such persons. I pass no observation on those matters.

Disposition

Having not found the dismissal harsh, unjust or unreasonable, no issue of remedy arises.

Ms Stodart’s application is dismissed. An order[85] giving effect to this decision is issued in conjunction with its publication.

DEPUTY PRESIDENT

Appearances:

Mr A Wright and Ms R Lee, with permission on behalf of, Ms Tiffany Stodart

Mr W Snow and Ms M Shanahan, with permission on behalf of, The Employer

Hearing details:

2022
Adelaide (by video conference)
7 and 8 February

[1] Directions 8 December 2021

[2] PR7381006 7 February 2022

[3] Amended Order 4 March 2022

[4] Section 601(4) FW Act

[5] A1 Statement Tiffany Louise Stodart 23 December 2021

[6] R1 Statement Brooke Rebecca Vaughan 19 January 2022

[7] R4 Statement Leah Anne Campbell 20 January 2022

[8] R3 Statement Kathryn Joy Noordhoek 19 January 2022

[9] (1959) 101 CLR 298

[10] Tamayo v Alsco Linen Service Pty Ltd (1997) Print P1859 as cited in Hyde v Serco Australia Pty Limited[2018] FWCFB 3989 at [102]

[11] Audio 7 February 2022 12.10pm and 1.06pm

[12] R3 paragraph 34; audio 8 February 2022 10.38am

[13] Audio 8 February 2022 10.42am

[14] Audio 8 February 2022 10.47am

[15] Audio 8 February 2022 10.52 am to 10.54am

[16] R1 paragraph 25

[17] TS-3

[18] TS-4

[19] KN-D

[20] BV-B

[21] Audio 7 February 2022 1.20pm

[22] R1 Attachment B

[23] R1 paragraph 44

[24] R1 paragraph 57 to 58

[25] A1 paragraph 49

[26] BV-F

[27] Audio 7 February 2022 12.21pm (AEDST)

[28] KN-H

[29] R3 Attachment I paragraph 3

[30] KN-I

[31] KN-I handwritten meeting note page 2

[32] R3 paragraph 99

[33] KN-J

[34] R2 paragraph 17

[35] R2 paragraphs 13 to 21; LC-A Campbell handwritten notes

[36] R2 paragraph 22

[37] LC-A [names redacted] handwritten statements

[38] KN-L

[39] Audio 7 February 2022 12.54pm

[40] R3 Attachment M

[41] KN-M

[42] KN-N

[43] Sydney Trains v Hilder[2020] FWCFB 1373 at [26]

[44] Small Business Fair Dismissal Code: section 388(2) FW Act

[45] see Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1; King v Freshmore (Vic) Pty Ltd AIRCFB Print S4213; Edwards v Giudice (1999) 94 FCR 561; Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport AIRCFB Print S5897 and Rode v Burwood Mitsubishi AIRCFB Print R4471

[46] Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359, 373, 377‒378; Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1, 14. See also Dundovich v P & O Ports AIRC PR923358 at [79]; Lane v Arrowcrest (1990) 27 FCR 427, 456; cited with approval in Byrne & Frew v Australian Airlines Ltd (1995) 185 CLR 410, 467 and 468

[47] Sydney Trains v Hilder[2020] FWCFB 1373 at [26] principle (6)

[48] Audio 8 February 2022 10.52am to 10.54am

[49] Audio 7 February 2022 1.06pm

[50] R3 Attachment D

[51] R1 Attachment C

[52] Briginshaw v Briginshaw (1938) 60 CLR 336

[53] Audio 7 February 2022 12.28pm

[54] Audio 7 February 2022 12.46pm

[55] Audio 7 February 2022 4.06pm

[56] Audio 7 February 2022 4.32pm

[57] Audio 7 February 2022 3.26pm (Ms Vaughan) and 4.02pm (Ms Campbell); R1 paragraph 69

[58] R1 paragraph 63

[59] KN-A section 3

[60] Audio 8 February 2022 12.02pm

[61] Parmalat Food Products Pty Ltd v Wililo[2011] FWAFB 7498 at 20

[62] Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 at [73]

[63] Previsic v Australian Quarantine Inspection Services Print Q 3730 (AIRC, 6 October 1998)

[64] Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 at [75]

[65] RMIT v Asher (2010) 194 IR 1 at 14-15

[66] Gibson v Bosmac Pty Ltd (1995) 60 IR 1 at 7

[67] Meeting notes Ms Noordhoek R3 KN-I

[68] R3 KN-J

[69] R1 BV-C

[70] R1 BV-D

[71] R3 KN-J

[72] Sayer v Melsteel Pty Ltd[2011] FWAFB 7498 at [14]; Smith v Moore Paragon Australia Ltd PR 915674 at [69] (AIRC, 21 March 2002)

[73] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 as cited in Potter v WorkCover Corporation (2004) 133 IR 458 per Ross VP, Williams SDP, Foggo C and endorsed by the Full Bench in Industrial Automation Group Pty Ltd T/A Industrial Automation [2010] FWAFB 8868, 2 December 2010 per Kaufman SDP, Richards SDP and Hampton C at [36]

[74] [1995] HCA 24; (1995) 185 CLR 410 at 465 per McHugh and Gummow JJ

[75] [2013] FWCFB 6191

[76] Jones v Brite Services[2013] FWC 4280 at [24]

[77] [2011] FWAFB 1166 at 24

[78] Audio 8 February 2022 10.52am

[79] Audio 7 February 2022 1.22pm

[80] R3 Attachment M paragraph 14

[81] R3 Attachment N

[82] Audio 7 February 2022 12.12pm

[83] Audio 7 February 2022 12.14pm

[84] Audio 7 February 2022 12.15pm

[85] PR738262

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