Violeta Paunovska v The Commonwealth of Australia (Centrelink)
[2011] FWA 2505
•12 MAY 2011
Note: An appeal pursuant to s.604 (C2011/4389) was lodged against this decision - refer to Full Bench decision dated 13 April 2012 [[2012] FWAFB 2820] for result of appeal.
[2011] FWA 2505 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Violeta Paunovska
v
The Commonwealth of Australia (Centrelink)
(U2010/13631)
SENIOR DEPUTY PRESIDENT HAMBERGER | SYDNEY, 12 MAY 2011 |
Termination of Employment.
[1] The applicant, Ms Violeta Paunovska, was dismissed by her employer, the Commonwealth of Australia (Centrelink, the respondent) on 13 October 2010. Ms Paunovska applied for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) on 26 October 2010. The matter did not settle at conciliation and was referred to me for arbitration.
[2] Hearings were conducted in Sydney on 15 March and 10 May 2011. The applicant represented herself. She gave evidence on her own behalf, but called no other witnesses. The respondent was represented by Mr J Darams, of counsel. The following witnesses were called by the respondent:
- Ms Renee Kennett (formerly manager of the Bankstown Customer Service Centre);
- Ms Sally Grimsley-Ballard (Area Sydney East HR Manager);
- Ms Ann Bagnall (Professional Standards Manager); and
- Mr Brett Thompson (Sanctions Delegate).
The termination of the applicant’s employment
[3] On 13 October 2010, Mr Thompson sent a notice of termination to the applicant telling her that her employment with Centrelink was to be terminated with immediate effect. He sent with his letter a document entitled ‘Breach of the APS Code of Conduct. Record of Sanction Decision’ which in effect set out the reasons for her dismissal. This document stated that Ms Paunovka had failed to comply with lawful and reasonable directions given to her by someone who had the authority to give such a direction on 6, 13, 15, 22 and 28 October 2009. The document includes the following:
‘Ms Paunovska, having been provided with evidence of incorrect recording of attendance times, was directed to amend her record of attendance for the applicable dates, on each of these occasions by Centrelink Manager, Renee Kennett, and on each occasion she refused’. The document went on ‘On 17th November 2009, Ms Paunovska, while in the course of her employment, failed to comply with lawful and reasonable directions given to her by someone who had the authority to give such a direction and failed to treat everyone with respect and courtesy and without harassment. Ms Paunovska was directed to commence work or to leave the Bankstown CSC on several occasions, by Renee Kennett, Roseanna Arena (Area Business Manager Customer Service) and Sally-Grimsley Ballard (HR Manager) and she refused these directions on each occasion....Additionally, Ms Paunovska, in discussion with Ms Arena, became aggressive, raised her voice, and when asked to leave the office or commence duties, responded with discourtesy, stating that she would leave when she wanted to and not before, ignored Ms Arena’s directions and according to Ms Arena, became aggressive and angry, and made sarcastic comments, including commenting that if Ms Arena would stop interrupting her she would finish what she was doing sooner.’ 1
The evidence
[4] Having had the opportunity to see the applicant give evidence in the witness box, I have formed the view that she is an unreliable witness. She was often very emotional in the way she responded to questions, whether from myself or Mr Darams, and was highly selective and tendentious in what she claimed to recall. 2 By way of contrast the respondent’s witnesses gave their evidence in a calm, consistent and direct manner. Accordingly, where there is a conflict in the evidence, I prefer that of the respondent’s witnesses to that of the applicant. Consistent with this, the version of events set out below is largely based on the statement of Ms Kennet,3 except where it is made clear that another source is being used.
The applicant’s employment prior to October 2009
[5] The applicant commenced employment with Centrelink in December 1989, where she worked in the pensions section. She took two years leave after she gave birth to her daughter and returned to work as a part time Customer Service Adviser (CSA) at the Bankstown Customer Service Centre in 2006. According to the applicant:
‘Upon return to work in 2006 I was placed in the Newstart section where I had very little knowledge and no training in. I had previously been in the pensions section since 1989.
I firstly was expected to do very simple duties in the lodgements counter that didn’t require much training or knowledge, where I had no problem.
Very quickly things changed and I was expected to do other duties without training through various managers, I was expected to train myself on the job.’ 4
[6] Ms Kennett was the manager of the customer service centre where Ms Paunovska worked from November 2008. She gave evidence that from February 2009 Ms Paunovska worked on the reception in the ‘access’ team. Her sole duty was to attend to customers of the office and deal with the questions and requests that they had. She worked from the front reception desk. ‘Because her role was to serve customers, Ms Paunovka had no other responsibility when she commenced her shift other than to log on to her computer at the reception desk and begin serving customers.’
[7] From May/June 2009, Ms Kennett took over the day to day supervision and management of Ms Paunovska from her team leader. This was because management was concerned that a number of performance issues had developed, including an inability on the part of Ms Paunovska to start work at her scheduled time, general absences from work, non adherence to her allocated break time and general issues with the way in which she dealt with her team leaders. On 20 August 2009, Ms Kennett met with the applicant to discuss her annual performance assessment plan. She said the applicant needed to put in place a proposal to reduce her flex debit, which was around 17 or 18 hours. (The applicant was only allowed to accrue 9 hours and 25 minutes under Centrelink policy. I also note the applicant’s debt was in a context where she only worked around 15 hours a week.) Ms Kennett suggested that the applicant change her working hours to enable her to address her attendance issues. Ms Paunovska indicated that she did not want to change her commencement time from 9:30am.
[8] There was no change in the applicant’s ability to attend for work on time. As a result on 15 September 2009 she was handed a formal directive advising her that she had not been adhering to her agreed attendance pattern and that failure to commence work on time at 9:30am could be considered as a failure to follow a direction and result in disciplinary action. At the meeting where Ms Kennett handed Ms Paunovska the letter I am satisfied (despite the applicant’s denials) that she was told by Ms Kennet:
‘Your commencement time is the time you are logged on to your computer and ready to serve your first customer.’ 5
Ms Kennett agreed to allow the applicant to change her start time to 9:15am and to give her a paid 15 minute break at 11:30am each day (even though, according to Ms Kennet’s evidence she was not strictly entitled to this break under the terms of the Centrelink Workplace Agreement.) After Ms Kennett raised the issue of the applicant’s flex debt, the latter told Ms Kennett she would lodge a formal complaint of harassment. A further meeting occurred on 16 September 2009 where the applicant was given a revised letter from Ms Kennet reflecting her new start time of 9:15am. The letter included the following:
‘If you commence work after 09:15am and you have not sought prior approval from myself to commence later than 09:15am, that period between your agreed start time and your commencement time will be considered as unauthorised and a deduction will be made from your salary. In accordance with the People Handbook guidelines, employees must maintain a record of their times commencing and ceasing duty, and my expectation is the start time you enter on your Record of Attendance is the time you commence and perform duties on reception.’ 6
[9] The respondent was concerned that Ms Paunovska continued to be late for work. I note that Ms Paunovska appears to have a different definition of ‘late’ from the respondent. In particular she made it clear during the hearing that she did not consider that she was ‘late’ if she walked into the office by her commencement time - even if she was not at the reception desk and was not logged on, despite what was contained in the letter of 16 September. 7 Moreover, while the applicant conceded that she did sometimes arrive late for work she always rang the office beforehand. She appeared to consider that this meant her late arrival had been ‘approved’.8
[10] On 22 September Ms Kennett gave the applicant a formal notice of counselling to take place on 29 September 2009. The counselling session took around an hour and a half. Ms Paunovska was told to change her record of attendance to reflect her team leader’s observations of when she had actually commenced work. Ms Paunovska was told specifically that she needed to change her record of attendance for 16, 17 and 22 September 2009. Ms Paunovska responded:
‘This is all lies. I am not changing my times.’ 9
[11] On 6 October Ms Paunovska was given computer generated reports of the times she had logged on, which clearly indicated that she had logged on after her scheduled commencement time on 16, 17 and 22 of September. On each of those days the applicant had entered a start time of 9:10am on her attendance record. On 13 October it was agreed to change Ms Paunovska’s scheduled start time again, this time to 9:25am. She was again asked to change her record of attendance for 16, 17 and 22 of September. Again she refused to do so. She was then sent an email on 15 October repeating the direction and giving her until close of business 20 October to make the corrections. A further email was sent on 22 October repeating the direction, which was again ignored. On 2 November Ms Kennet informed Ms Paunovska that she referring Ms Paunovska’s behaviour refusing to amend her record of attendance to the relevant area manager, Ms Alison Frame, for her to determine whether there had been a breach of the APS Code of Conduct.
The events of 17 November 2009
[12] Ms Kennet’s version of events as to what happened on 17 November 2009 is as follows. At approximately 9:29am, the applicant arrived after telephoning Ms Kennet that she would be late to work. (According to Ms Grimsley-Ballard’s evidence this phone call had been made a few minutes before the applicant arrived.) 10 When the applicant was informed that she needed to put her correct attendance time in, she queried why this mattered. She said:
‘This is wrong, why are you docking me? I rang just like every other time....This is wrong! I am going home.’
[13] According to Ms Kennet’s evidence Ms Paunovska was acting aggressively. She left the conversation with Ms. Kennet, spoke to another employee who was dealing with a customer, and then went downstairs. At around 10:50am Ms Paunovska approached Ms Kennet, who was having a meeting with Ms Arena, wanting to speak about her pay being docked. Ms Kennet said:
‘I am currently in a meeting...I can’t meet with you to discuss this again, as this has already been discussed on a number of occasions now’.
[14] Ms Paunovska replied:
‘I don’t agree that it has and I want copies of the letters again. I’m not leaving the office till I get them.’
[15] The applicant was advised that she had been given the letters on several occasions and was told either to start work or access personal leave and leave the office. The applicant continued to act aggressively, speaking in a loud voice in front of other staff. Ms Kennet agreed that Ms Arena should give her the letters. This was then done. However Ms Paunovska still neither left the office nor commenced her duties. When Ms Arena asked her either to start work or leave the office, she responded:
‘I’ll leave when I’m good and ready. What are you going to do, call the police or something?’
[16] Ms Arena repeated the direction to either log on and commence duties or leave the office. Despite being warned that failing to follow a clear direction was in breach of the APS Code of Conduct she ignored Ms Arena. The applicant left the building just over half an hour later.
[17] Ms Bagnall conducted an investigation into whether the applicant had breached the code of conduct. Ms Bagnall wrote to the applicant on 3 December 2009 setting out the allegations against her and seeking a response within seven days. Ms Paunovska was subsequently given two extensions of time to respond. She eventually gave a response on 6 January 2010. Ms Bagnall formed the preliminary view that the applicant had breached the code of conduct. Her final report was delayed however because she was waiting for a ‘Fitness for Duty Assessment” and the results of an investigation into allegations by Ms Paunovska that she had been bullied and harassed. Having finally received this material, Ms Bagnall sent the applicant a letter on 17 May 2010 indicating her preliminary view that she had breached the code of conduct and her employment should be terminated. Ms Paunovska was given an opportunity to respond. As the letter was returned to Centrelink, a further letter was sent on 22 June 2010 with a further opportunity to respond. Ultimately she was given until 12 August 2010 to respond. Ms Bagnall ultimately received a one page handwritten response from Ms Paunovska. Ms Bagnall then made her report to the Sanction Delegate, Mr Thompson, which he received on or about 15 August 2010. 11
[18] Mr Thompson reviewed the report and reached a preliminary view that the termination of Ms Paunovska’s employment was appropriate. He wrote to the applicant on 31 August 2010 and advised her of this view. He indicated to her that:
‘I am considering this sanction as your actions as referred to by Ms Bagnall indicate an ongoing pattern of unacceptable behaviour, and I have significant reservations about your willingness to correct this behaviour.
In addition, Ms Bagnall’s report indicates to me that you do not accept the APS standards of conduct. You do not appear to have understood the seriousness of your behaviour or to have accepted that you are required to be at work on time and record the correct times. You also do not appear to be committed to preventing such behaviour in the future. In my view this calls into serious question your suitability for employment in the Australian Public Service.
I do not consider that a lesser sanction would be an adequate response to the gravity of your conduct.’
[19] Mr Thompson gave the applicant seven days to provide a response. She sent him a response by facsimile message on 21 September 2010. On 13 October Ms Paunovska’s employment was terminated. 12
Consideration
[20] In determining whether the applicant’s dismissal was harsh, unjust or unreasonable I am required to have regard to the factors set out in s.387 of the Act. These are:
‘(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 FWA considers relevant.’
[21] Did the respondent have a valid reason for terminating the applicant’s employment? The applicant was not terminated for her poor attendance record. Nevertheless her poor attitude to attending work on time is an important part of the context for her dismissal. It is quite clear from the evidence that the applicant was regularly late for work. She attached no importance to this, and when she was told to do something about the matter, she either refused to take it seriously or considered that she was being bullied. She took the view that it was up to her to decide what ‘late’ meant. Moreover as long as she rang before she arrived for work it was alright. This is not a case of occasional lateness due to extenuating circumstances. Rather this is a case of persistent lateness over a long period, where the applicant showed no indication that she took the matter seriously, and was quite defiant in the face of management’s attempts to get her to improve her attendance record. It is also in a context where the respondent had bent over backwards to accommodate the applicant’ preferences with regard to her start time. As well as attending for work on time, she was also required to maintain a record of her start times.
[22] In the face of objective evidence that she had failed to commence work at the required time, the applicant repeatedly and deliberately refused to comply with clear directions to correct her attendance record. In the circumstances, these directions were both lawful and reasonable. They were made in a context where the applicant had persistently defied management attempts to get her to improve her attendance at work. On 17 November, the applicant again came into work late. She repeatedly refused to comply with the reasonable direction that she either commence work or leave the premises.
[23] The applicant’s failure to comply with these lawful and reasonable directions constitutes a valid reason for the termination of the applicant’s employment.
[24] The outline of the evidence above makes clear that the applicant was told what the allegations were against her. She was given a number of opportunities to respond to those allegations, both by Ms Bagnall and Mr Thompson. There was no refusal by the respondent to allow the applicant to have a support person present to assist at any discussions.
[25] The applicant was terminated for misconduct rather than poor performance, and therefore s.387 (e) is not strictly relevant. Nevertheless I note that the respondent had given the applicant plenty of warnings about its concern with her poor attendance before disciplinary action was invoked. Subsections 387(f) and (g) have no particular bearing on the case. Finally, I do not consider that there are any mitigating factors which might otherwise render the dismissal harsh, or otherwise unfair.
[26] The applicant’s dismissal was not harsh, unjust or unreasonable. Her application is dismissed.
SENIOR DEPUTY PRESIDENT
Appearances:
Ms V Paunovska, on her own behalf
Mr J Darams, of counsel, for the Commonwealth of Australia
Hearing details:
SYDNEY
2011
15 March
10 May
1 Exhibit C3
2 For example, at PN419-423, 456, 496-519, 732, and 748 to 758
3 Exhibit C1
4 Exhibit P1
5 Exhibit C1, paragraph 17
6 Exhibit C1, attachment 2
7 For example, at PN631
8 PN448
9 Exhibit C1, paragraph 33
10 Exhibit C2
11 Exhibit C4
12 Exhibit C3
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