Vaska Petreska v Bayton No. 04/Bayton Cleaning Pty Ltd
[2020] FWC 541
•4 FEBRUARY 2020
| [2020] FWC 541 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Vaska Petreska
v
Bayton No. 04/Bayton Cleaning Pty Ltd
(U2018/12876)
DEPUTY PRESIDENT KOVACIC | CANBERRA, 4 FEBRUARY 2020 |
Application for Relief of Unfair Dismissal – dismissal not harsh, unjust and unreasonable – application dismissed.
[1] Ms Vaska Petreska (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 12 December 2018 under s.394 of the Fair Work Act 2009 (the Act) alleging that the termination of her employment by Bayton No. 04/Bayton Cleaning Pty Ltd (Bayton – the Respondent) on 7 June 2018 was unfair.
[2] The application was heard on 30 May 2019. At the hearing, Ms Petreska represented herself while Mr David Rydon appeared with permission for the Respondent. Ms Petreska led no evidence in support of her application. Evidence for the Respondent was given by Mr Michal Drag, the Respondent’s General Manager of Operations in New South Wales.
[3] For the reasons set out below, I find that Ms Petreska’s dismissal was not harsh, unjust or unreasonable. Accordingly, Ms Petreska’s application is dismissed.
Background
[4] By way of background, the Respondent is a cleaning services company which provides commercial cleaning services to a number of commercial clients in various states and territories including the Commonwealth Law Courts Canberra (CLCC). The Respondent is contracted by Broadspectrum Property (Broadspectrum) to provide cleaning services at the CLCC.
[5] Ms Petreska commenced employment with the Respondent as a cleaner in 2006 and at the time of her dismissal was employed on a part-time basis.
[6] From June 2018 Ms Petreska took personal leave for hip surgery unrelated to her employment. Prior to going on leave Ms Petreska had been working at the CLCC site. On 17 September 2018, the Respondent received a medical certificate advising that Ms Petreska would be fit to return to her duties on 23 September 2018.
[7] On 18 September 2018, the Respondent informed Broadspectrum’s Facilities Manager at CLCC, Mr Monch Miladinovic, of Ms Petreska’s imminent return to work, that Ms Petreska’s replacement had advised the Respondent that he was unable to continue to clean for it at the CLCC site and asking whether it would be ideal to replace that person with Ms Petreska. 1
[8] That same day Mr Miladinovic informed the Respondent that the CLCC had expressed a preference that Ms Petreska be relocated to another site as they were finding her too disruptive. Broadspectrum formalised this request on 19 September 2018, with Mr Miladinovic’s email including the following:
“The news of Vaska’s potential return to CLCC has raised quite a bit of negative talk and a bit of anxiety among staff numbers with in [sic] the building, I initially wasn’t aware that the issue was this extensive until the news got out that Vaska is returning.
In light of that I am formally requesting that Bayton relocate Vaska to another site and find a replacement cleaner for CLCC.” 2
[9] On 20 September 2018, Mr Drag called Ms Petreska to advise her of Broadspectrum’s request and that the Respondent would try and identify alternative options. Ms Petreska foreshadowed that she would be contacting her union, United Voice (UV).
[10] Also on 20 September 2018 Mr Drag received an email from Mr Tom Whiteside, an Industrial Officer with the ACT Branch of UV, regarding Ms Petreska. Later that day Mr Drag sent an email to Mr Miladinovic in the following terms:
“I have discussed this with our HR department and due to the fact she has a standing employment contract we need to give her a valid reason for removing her from this site.
Are you able to disclose any information that is grounds for Vaska’s transfer request, this can be situational, statements from staff or something similar.
We have communicated to Vaska that our client has requested that she be transferred to another facility and she is very upset. She believes that she was doing a good job in terms of cleaning and that there were no complaints.
She has asked if there is any chance that we can give her a final chance, I have to pass this on to you on her behalf. Please let me know if there is something that we are able to do to leave her on site or is the request to leave her off site final?
I am happy to discuss terms and condition if we are able to facilitate her to stay.” 3 (Formatting as per original)
[11] Mr Miladinovic responded to Mr Drag’s email on 21 September 2018. His response included the following:
“Attached is an email from the courts registry staff team leader Kim Jovanovic on behalf of the Registry manager Melissa Buhagiar …
Also reading some of the comments in attached email there seems to have been an ongoing issue with Vaska for some time which has been brought to her attention on a number of occasions without it being resolved, therefore I am left with limited options.
As previously requested in my email on 19th September please make necessary arrangements to relocate Vaska to another site as the court staff have requested in the attached email. Unfortunately this is at short notice but we were only made aware that Vaska was due to return on Tuesday 18th September.
Below are some interactions that I have had with Vaska in the brief time that I was here at same time as Vaska.
I started at CLCC on 4th June Vaska went on sick leave shortly after that, in the short time I spent here while Vaska was on site I have experienced her need to speak to me every morning about her previous issues with court staff, guards and other Facilities Managers on each occasion this was approximately 30 minutes and most of her conversation was repetitive and in some instances trying to impose/impress her rules on me, Some of the mornings I was able to cut he [sic] conversation short but it wasn't easy.
On one occasion she wanted to show me something in one of the judge's chambers, as we walked in the judge saw Vaska, he quickly gathered his file and briskly proceeded to go to another room and closed the door behind himself, upon Vaska leaving I went back to apologise to his honour for the uninvited interruption, he advised me that he took off before Vaska had the chance to make eye contact with him as he didn't want or had the time to get stuck with her talking to him.
Vaska also has a habit of speaking quite loudly as well which does come across a bit intimidating to some of the younger female staff and disruptive to others.
As I have the responsibility to ensure that the building is maintained to a safe and compliant standard which also includes the comfort of tenants and their staff this also includes clean, safe and comfortable working environment therefore I am again formally requesting on behalf of our tenants as requested in attached email that Vaska does not returned to Commonwealth Law Courts Canberra as a cleaner effective immediately.” 4
[12] The email attached to Mr Miladonvic’s correspondence included the following:
As you may be aware we have raised a number of concerns with Vaska in the past. Some of the concerns raised :-
“• Areas not cleaned to standard
“• Staff observing cloths used to clean the bathroom also used to clean the kitchen
“• Harassing staff upon their arrival at work for long periods of time (in some instances almost 1 hour) about issues that do not concern them
“• Following staff into the bathroom and having to be asked to leave so the staff member could go to the bathroom in privacy.
“• Advising staff of personal issues between herself and other spotless employees
“• Observed to be bulling [sic] and speaking inappropriately to other spotless employees.
There is no doubt Vaska has her heart in the right place, however the above behaviour seems to be ongoing even when raised time after time. Unfortunately, there have been a number of ongoing complaints raised by staff across the court which we have also raised a number of times. These issues have also been raised with Vaska but there is rarely very little improvement. As this has been the case, management needs to ensure our staffs concerns are being dealt with. We have given her many opportunities to address the issues raised. We therefore are requesting Vaska does not return to her normal duties.” 5
[13] On 21 September 2018 Mr Drag sent an email to Mr Whiteside updating him on the matter. Among other things the email indicated that Broadspectrum had rejected his overtures directed at Ms Petreska continuing to work at the CLCC, adding that in accordance with the Respondent’s terms of agreement with Broadspectrum the latter could “give notice requiring the Contractor to remove any person from work in respect of the Services.” 6 Mr Drag also foreshadowed the Respondent’s intention to look to move Ms Petreska to another site. Specifically, Mr Drag said in his email that:
“… We currently have a site that we can offer Vaska which is closer to her home. The contract is for 3.5 hours daily but to ensure she is not worse off Bayton are willing to increase the contract to 4.5 hours (absorbing the cost of the extra 1 hour per night) to ensure it matches her employment contract. This would mean that Vaska if she accepts the new position would not be any worse off being transferred to this site, in fact she would be closer to home and would save on commute.
We believe this is the best way forward and would appreciate your help to facilitate this resolution.” 7
[14] After discussing the matter with Mr Whiteside, Mr Drag contacted Ms Petreska and put the proposed transfer to her. Ms Petreska was not happy with the offer.
[15] On 24 September 2018 Mr Whiteside sent an email to Mr Drag requesting that a telephone conference be arranged involving Mr Drag, Mr Miladinovic, Ms Buhagiar and himself to discuss the request to have Ms Petreska removed from the CLCC. Mr Drag conveyed Mr Whiteside’s request to Mr Miladinovic on 25 September 2018, with Mr Miladinovic responding the next day. Mr Miladinovic’s response was as follows:
“I had a discussion with the registry manager this morning regarding your below request, the registry manager has reiterated to me that they are extremely happy with the two current cleaners that are cleaning the site and have confirmed to me that they do not want Vaska back on site as a cleaner, as such they do not see any reason to have the proposed meeting and prolong this issue any further.
I have also been made aware by the tenants management that the issues with Vaska are not new, they have been ongoing for quite some time which Bayton were also aware off [sic] but failed to adequately address their concerns in previous instances therefore for the third time on behalf of registry management Vaska is not welcome back on this site as a cleaner.” 8
[16] Mr Drag informed Mr Whiteside of Mr Miladinovic’s response shortly after he received it and that evening forwarded to Mr Whiteside some of the comments he had received as to why CLCC did not want to have Ms Petreska return to the site. 9
[17] On 27 September 2018 the Respondent provided Ms Petreska with written notice that effective 10 October 2018 she was to commence work at a different work site and that all her employment conditions would remain the same. 10
[18] In subsequent developments Mr Whiteside wrote to Ms Buhagiar on 2 October 2018 exploring whether Ms Petreska might be allowed to return to work at the CLCC site if she agreed to attend counselling sessions for a period of time. Mr Miladinovic was asked by the CLCC to respond to Mr Whiteside given that Ms Petreska was not contracted through it. Mr Miladinovic responded as follows on 3 October 2018:
“The Commonwealth Law Courts Canberra tenants management have made the decision to inform me that they do not want Vaska back on this site as a cleaner and have reiterated this on at least four or so occasions.
…
As you might be aware this has now been at least fourth occasion that I have Mr Whiteside had to respond and reiterate to Bayton and United voice [sic] via Bayton on behalf of the Commonwealth Law Courts Canberra tenants that they do not want Vaska back on their site as a cleaner.
I do not know how else to clarify their decision, please refer to attached email I sent to Bayton on 26th Sep 2018 with Michael Drag’s reply to me on 28th Sep.
It would be appreciated if you and or any other representative from United Voice would refrain from approaching and or contacting the Commonealth Law Courts Tenants directly regarding Vaska’s desire to return to this site as a cleaner.” 11
[19] Ms Buhagiar also wrote to Mr Whiteside on 12 October 2018 stating among other things:
“The Court is very happy with the current cleaning arrangement in place (Vaska’s replacement).
Unfortunately it became more apparent during Vaska’s absence of how easy things had become without Vaska here, without constant interruptions and complaints from other staff members.
…
Counselling may assist Vaska to recognise her shortcomings in this regard, to learn to accept responsibility and not blame others, however in saying this, returning to the Court will not be an option.” 12
[20] Mr Whitside responded to Ms Buhagiar later that day advising that he would communicate what she had said to Ms Petreska.
[21] On 27 November 2018, the Respondent met with Ms Petreska and presented her with a termination letter. The termination letter included the following:
“I am writing to you about the termination of your employment with Bayton (No.4) Pty Limited effective 2nd December 2018.
As you are aware our Client requested that you are transferred to another site from 19th September 2018. The client has justified this request stating behavioral [sic] issues. As you are aware we asked the client to reconsider on 5 different occasions, United Voice Union also reached out to the client to persuade them to allow you to return with no success.
We offered you an alternative site in Barton which is closer to your home with very similar conditions; in fact you would have received a better rate at this site. On September 28th we sent a transfer notification via registered mail to your home address which was received and signed for on 2nd October 2018. In addition to this both Bayton and United Voice Union recommended for you to accept the transfer offer which you refused on numerous occasions.
This position has since been filled and is no longer available.
On the basis of your refusal, Bayton wishes to advice that your employment will be terminated effective 2nd December 2018.” 13
[22] As previously mentioned, Ms Petreska lodged her unfair dismissal application on 12 December 2018.
The Applicant’s case
[23] Ms Petreska submitted that she had been unfairly dismissed, adding that prior to her absence on sick leave she was on good terms with CLCC and had received positive feedback from the Facilities Manager. More particularly, Ms Petreska contended that her sick leave had been used to enable her dismissal and that she had not been made aware of complaints about her before going on leave.
[24] Beyond that, key aspects of Ms Petreska’s submissions included that:
• she had always cleaned all areas to a high standard and had been told the results were excellent;
• she was unable to accept the offer of work at another site due to other part-time work commitments;
• the complaints about her were false, positing that Ms Buhagiar was “lying”;
• she had been bullied at work and had been “set up”;
• the Respondent did not try hard enough to convince Broadspectrum to reinstate her to her former role at CLCC;
• management had never supported her; and
• Mr Drag did not support her, adding that he did not want to make the effort to go and talk to Ms Buhagiar.
[25] Ms Petreska led no evidence in support of her application.
The Respondent’s case
[26] The Respondent in its submissions acknowledged that Ms Petreska had been dismissed but contended that the dismissal was not harsh, unjust or unreasonable in circumstances where it had no alternative but to terminate Ms Petreska’s employment as it was unable to keep her gainfully employed in circumstances where she would not accept being relocated to another site. The Respondent further submitted that the circumstances in this case were not of its own making, highlighting it was unable to have Ms Pereska reinstated to the CLCC site as it did not control entry to the premises and the CLCC had made it clear that it did not want Ms Petreska back as a cleaner. The Respondent also contended that despite the commercial risk to its contract it had gone out of its way to try and facilitate Ms Petreska’s return to the CLCC site, adding that it had made every effort to try and accommodate Ms Petreska’s desire to return to the CLCC site. In addition, the Respondent highlighted that when it became clear that Ms Petreska could not return to the CLCC that it looked for work for her at another site and was prepared to wear the additional cost involved to ensure that Ms Petreska was not financially disadvantaged by the relocation. The Respondent rejected Ms Petreska’s contention that she had been “set up” or that her dismissal was a “fix”.
[27] In response to a question from the Commission, the Respondent stated that Ms Petreska’s dismissal could not be characterised as a redundancy as there was work available for her at another site. Also at the hearing, the Respondent stated that it did not contend that it was a small business employer for the purposes of the Act.
[28] Mr Drag in his statutory declaration 14 provided a chronology of events leading up to the termination of Ms Petreska’s employment drawing on the various email correspondence between himself, Mr Whiteside, Mr Miladinovic and CLCC attached to his statutory declaration (some of that email correspondence is cited at paragraphs [7] to [21] above). Key aspects of Mr Drag’s oral evidence included that:
• neither he nor the Respondent had anything to do with Ms Buhagiar’s email of 12 October 2018 to Mr Whiteside;
• with regard to the termination letter, he had on numerous occasions tried to convince Ms Petreska that there was no going back to the CLCC site and that in circumstances where it was clear that she would not accept a transfer to another site the Respondent was left with no other alternative but to terminate her employment;
• there was one other site which could have been offered to Ms Petreska beyond the site she had been moved to, however the client in that case advised the Respondent that it should make alternative arrangements for Ms Petreska as a result of some prior issues with employees of the clients 15;
• the Respondent had two other sites in the ACT but cleaning was only required at those sites for 2 or 3 days each week;
• the Respondent had no power to force CLCC to accept Ms Petreska back;
• Ms Buhagiar was not a client of the Respondent, adding that in those circumstances it would have been unethical for him to “go around” Mr Miladinovic particularly as he had no prior dealings with Ms Buhagiar;
• the Respondent had asked the client at the site which Ms Petreska had been moved if it was willing to have the cleaning roster changed so that cleaning would occur in the morning as opposed to the afternoon, adding that the client was unwilling to agree to the proposed change;
• he had tried to set up a four-way discussion involving Ms Buhagiar, UV, Mr Miladinovic and himself to discuss the possibility of Ms Petreska returning to the CLCC site but Ms Buhagiar declined to be involved; and
• continued attempts to have Ms Petreska return to the CLCC site risked damaging the Respondent’s relationship with the client (i.e. Broadspectrum).
The Statutory framework
[29] The Commission exercises its discretion in relation to an application for an unfair dismissal remedy pursuant to Part 3-2 of the Act. In this case there is no contest that Ms Petreska is a person who was protected from unfair dismissal pursuant to s.382 of the Act. In the context of this matter, the relevant provisions of the Act are ss.385 and 387 which provide as follows:
“385 What is an unfair dismissal
A person has been unfairly dismissed if FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.
387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, 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 FWC considers relevant.”
[30] There is no dispute that Ms Petreska was dismissed, so s.385(a) of the Act is satisfied. Ms Petreska contended that her termination was harsh, unjust or unreasonable, so s.385(b) is relevant. The Respondent is not a small business employer therefore s.385(c) is not relevant. The termination was not a case of redundancy so s.385(d) does not apply. Therefore, in determining whether Ms Petreska was unfairly dismissed, I must consider whether her dismissal was harsh, unjust or unreasonable as per s.385(b) having regard to the considerations set out in s.387 of the Act.
Was the dismissal harsh, unjust or unreasonable?
Valid reason – s.387(a)
[31] The Respondent must have a valid reason for Ms Petreska’s dismissal, although it need not be the reason given to her at the time of the dismissal. 16 The reason should be “sound, defensible and well founded”17 and should not be “capricious, fanciful, spiteful or prejudiced.”18
[32] Ms Petreska contended among other things that her sick leave had been used to enable her dismissal, that she had not been made aware of complaints about her before going on leave and that the Respondent did not try hard enough to convince Broadspectrum to reinstate her to her former role at CLCC. The Respondent on the other hand submitted inter alia that it had no alternative but to terminate Ms Petreska’s employment as it was unable to keep her gainfully employed in circumstances where she would not accept a transfer to another site.
[33] With regard to Ms Petreska’s contentions, on any fair reading of the chronology of events as outlined in the Background section above it is clear that the Respondent went to great lengths to try and have Ms Petreska returned to the CLCC site. Further, the Respondent was also willing to wear the additional cost associated with Ms Petreska working at the different site to ensure that she was not financially disadvantaged. The Respondent is to be commended for its commitment to doing the right thing by Ms Petreska. Further, it appears from the emails setting out the reasons as to why the CLCC did not want to allow Ms Petreska to return to the site that concerns had previously been raised with her but did not result in any enduring change in her behaviour. More particularly, it is clear from the chronology of events set out above that the circumstances which ultimately resulted in the termination of Ms Petreska’s employment were not of the Respondent’s making. In this case the Respondent was being dictated to by its client as opposed to orchestrating events or “setting up” Ms Petreska as she contended.
[34] More broadly, I note that clause 8 of the Cleaning Services Award 2010 (the Award) 19 which concerns consultation about major workplace change implicitly contemplates the need for employees to be transferred to other work locations (see clause 8.5(f) of the Award) and sets out the consultation requirements which apply in those circumstances. Mr Drag’s evidence was that on 20 September 2018 he contacted Ms Petreska to advise her of Broadspectrum’s request and that the Respondent would try and identify alternative options. Mr Drag contacted Ms Petreska again on 21 September 2018 to advise her of the proposed relocation, deposing that Ms Petreska was not happy with the proposal. On 27 September 2018 Ms Petreska was formally advised that effective 10 October 2018 she was to commence work at a different location/work site. There is nothing before the Commission indicating that Ms Petreska performed work at the site or that either she or her representative, Mr Whiteside, outlined to the Respondent the reasons why she was unable to do so. While the consultation process might have been undertaken in a more discursive way, it appears that at no stage did Ms Petreska engage in that process in any meaningful way. Put another way, Ms Petreska effectively failed to comply with what in the circumstances was an entirely reasonable direction from her employer. As per the termination letter which stated “[o]n the basis of your refusal” to work at the new location, Ms Petreskas’ employment was ultimately terminated as a result.
[35] The above analysis supports a finding that there was a valid reason for Ms Petreska’s dismissal related to her conduct in refusing to commence work at a different location/work site.
Notification of the valid reason – s.387(b)
[36] Ms Petreska submitted that she had not been provided with a reason for the termination of her employment. The Respondent did not address this consideration in its submissions.
[37] It is not clear from the material before the Commission as to whether Ms Petreska was informed that her employment was at risk if she did not attend work at the different location/work site. If not, I think it would have been prudent for the Respondent to have done so. Having said that, given Ms Petreska’s steadfast unwillingness to return to work elsewhere but the CLCC site, informing Ms Petreska of the possibility that her employment may be terminated may not have made any difference whatsoever.
[38] On balance, this consideration points to Ms Petreska’s dismissal being unfair.
Opportunity to respond related to the capacity or conduct of the person – s.387(c)
[39] Ms Petreska submitted that she was not given the opportunity to discuss the concerns raised by CLCC. The Respondent did not address this consideration in its submissions.
[40] Ms Petreska was not dismissed because of her capacity. As to whether Ms Petreska’ was given an opportunity to respond in respect of her conduct (i.e. her refusal to attend work at the different location/work site), the material before the Commission points to Ms Petreska being unwilling to contemplate anything but a return to the CLCC site in circumstances where both Mr Drag and Mr Whiteside would have made clear to her that this was not possible given the views of the CLCC. In my view, Ms Petreska had ample opportunity to discuss with the Respondent the implications of CLCC’s decision that she not return to that site and her consequent relocation to another site. I would however reiterate the view expressed above that I think it would have been prudent for the Respondent to have informed Ms Petreska that her employment was at risk if she did not attend work at the different location/work site.
[41] Again, on balance, this consideration points to Ms Petreska’s dismissal being unfair.
Unreasonable refusal by the employer to allow a support person – s.387(d)
[42] Ms Petreska acknowledged that she did not seek to have a support person attend the meeting she had with Mr Drag and Mr Joseph Sapio, the Respondent’s Senior Account Manager – NSW. The Respondent did not address this consideration in its submissions.
[43] Given Ms Petreska’s submission, I do not consider this consideration relevant in this case.
Warnings regarding unsatisfactory performance – s.387(e)
[44] Ms Petreska submitted that she had been given no warning about unsatisfactory performance. The Respondent stated that it did not have any dissatisfaction with Ms Petreska.
[45] Ms Petreska was not dismissed due to unsatisfactory performance. Accordingly, this consideration is not relevant in this case.
Impact of the size of the employer on the procedures followed – s.387(f)
Absence of dedicated human resources management specialist/expertise on the procedures followed – s.387(g)
[46] Ms Petreska stated that she did not know if these factors impacted on the procedures followed in effecting her dismissal. The Respondent did not address these considerations in its submissions.
[47] There is nothing suggesting that the size of the Respondent in any way impacted on its approach in this case. Beyond that, Mr Drag’s email of 20 September 2018 to Mr Miladinovic (see paragraph [13] above) refers to him having discussed the matter with the Respondent’s “HR department”. This does not point to either of these considerations being relevant in this case.
Other relevant matters – s.387(h)
[48] Ms Petreska submitted that Mr Drag did not want to support her or make the effort to discuss the matter with Ms Buhagiar. The Respondent did not address this consideration in its submissions.
[49] As previously mentioned, I consider that the Respondent went to great lengths to try and have Ms Petreska returned to the CLCC site. In other words, the material before the Commission does not support Ms Petreska’s contention. As such, it is not a relevant consideration.
[50] Beyond that I note that Ms Petreska is a mature aged person who worked for the Respondent for more than 12 years. While not argued by Ms Petreska, I assume that the termination of her employment is likely to have had an economic impact on her. However, I also note that Ms Petreska had another part-time job as a school cleaner. In the absence of any submissions on the issue I am therefore unable to form a view as to whether the dismissal was harsh in terms of “its consequences for the personal and economic situation” 20 of Ms Petreska. As to Ms Petreska’s length of service, I think it likely that the Respondent’s efforts to try and have her returned to the CLCC site and to find work for her elsewhere with the Respondent are reflective of both her longstanding employment and her age.U
[51] Against that background, I do not consider that there are any other relevant matters.
Conclusion
[52] Drawing on the above analysis, I find that there was a valid reason for Ms Petreska’s dismissal related to her conduct, that Ms Petreska was not notified of that reason prior to her dismissal or given the opportunity to respond to that reason and that the remaining criteria in s.387 of the Act are not relevant in this case.
[53] The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd 21 by McHugh and Gummow JJ 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.”
[54] In this case I have decided that the procedural fairness flaws in Mr Petreska’s dismissal, i.e. the Respondent’s failure to forewarn Ms Petreska that her employment was at risk unless she commenced work at the other site, are not sufficient to support a finding that her dismissal was either harsh, unjust or unreasonable. In coming to that view I have had regard not only to my finding that there was a valid reason for Ms Petreska’s dismissal related to her conduct but also Ms Petreska’s intransigence in face of clear evidence that CLCC would not accept her return, her failure at any stage to engage meaningfully with the Respondent as to an acceptable alternative and the Respondent’s efforts to “look after” Ms Petreska.
[55] Against that background and having considered all the criteria in s.387 of the Act, I find that Ms Petreska’s dismissal was not harsh, unjust or unreasonable. Accordingly, her application is dismissed. An order to that effect will be issued in conjunction with this decision.
Appearances:
V. Petreska on her own behalf.
D. Rydon for the Respondent.
Hearing Details:
Canberra
2019
30 May
Printed by authority of the Commonwealth Government Printer
<PR716364>
1 Exhibit 1 at page 2 of Attachment A
2 Ibid at page 1 of Attachment A
3 Ibid at page 7 of Attachment A
4 Ibid at page 6 of Attachment A
5 Ibid at page 9 of Attachment A
6 Ibid at page 11 of Attachment A
7 Ibid
8 Ibid at page 15 of Attachment A
9 Ibid at pages 16-18 of Attachment A
10 Ibid at page 27 of Attachment A
11 Ibid at page 22 of Attachment A
12 Ibid at page 25 of Attachment A
13 Ibid at page 28 of Attachment A
14 Exhibit 1
15 Refer Exhibit 2
16 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-378
17 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373
18 Ibid
19 MA000022
20 Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 465-466 as per McHugh and Gummow JJ
21 Ibid
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