Wendy Blackford v Bamboo Direct Pty Ltd

[2011] FWA 7124

[2011] FWA 7124

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Wendy Blackford
v
Bamboo Direct Pty Ltd
(U2011/4286)

COMMISSIONER ROBERTS SYDNEY, 11 NOVEMBER 2011

Application for unfair dismissal remedy.

[1] This decision concerns an application lodged on 19 January 2011 by Ms Blackford pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the alleged unfair termination of her employment by Bamboo Direct Pty Ltd (the Company).

[2] The application was dealt with by a Fair Work Australia Conciliator on 14 February 2011 but the conciliation was unsuccessful.

[3] The arbitration came before me for hearing in Coffs Harbour on 30 June 2011. Directions had been issued on 4 March 2011 for the filing of submissions, witness statements and other documentary materials. That process was completed on or about 18 April 2011. During the proceedings Ms Blackford represented herself and Mr D Parish of Counsel represented the Company. Ms Blackford gave sworn evidence on her own behalf. Mr P McHeyzer (Managing Director), Ms J Lia (Administration Manager), Ms S Loh-Warman (Accountant), Mrs S McHeyzer and Mr C Scrimgeour (an employee of the Company) gave sworn evidence for the Company.

Background

[4] Ms Blackford was employed by the Company from on or about 27 July 2009 until her employment was terminated with effect from 11 January 2011. Ms Blackford was employed as the Administration Manager, reporting to the Accountant, until August 2010. She was then demoted to the position of ‘Cluster Leader’. According to the Company, Ms Blackford was dismissed “because she lost the trust and confidence of her employer” 1. Ms Blackford denies any wrongdoing and maintains there was no valid reason for her dismissal and the dismissal was harsh, unjust and unreasonable.

Evidence

Ms Blackford

[5] Ms Blackford gave sworn evidence and submitted a witness statement 2.

[6] In summary, it was Ms Blackford’s statement that:

• Mr McHeyzer was “prone to outbursts of foul and abusive language” and humiliated and bullied his staff.



• Mr McHeyzer “appeared to be genuinely proud” of reducing female staff to tears.



• Another staff member “had a complete psychotic breakdown”.



• Mr McHeyzer changed the pay week arrangements for staff without consultation.



• She suffered stress problems from Mr McHeyzer’s treatment of her but did not reveal this to him.



• Mr McHeyzer abolished the position of Administration Manager without consultation with her leading to her effective demotion. “I believe it was as a direct result of the advice I had offered staff at the end of July to call the Ombudsman’s office. I believe this because on several later occasions Pieter made derisive comments with reference of the Ombudsman’s Office.”



• “I suggested to Pieter that I move into a HR Management role as the business was of a size that would benefit from such a position and as I had successfully completed study in this area it seemed a good move for both myself and the business. Pieter was very dismissive of this suggestion.”



• Mr McHeyzer “removed my duties of staff supervision and training and dropped my pay by $20,000pa. He said, and I have it in writing, that if I didn’t accept this he would insist on my resignation. This was the first time he mentioned his desire for me to leave Bamboo Direct.”



• She was not responsible for the loss of any solar panels.



• She was overlooked for a management training program.



• In early January 2011 she increased her search for another job. “I had been looking for another job for many months and despite being interviewed and getting to the last 2 on several occasions had been unsuccessful to date. I stayed on, doing my job, but always looking for other work.”



• Ms Lia had asked her to telephone her.



• “Jo called again and we had a conversation about why, according to her, I wouldn’t want her job - her boss wasn’t very nice. I said that mine wasn’t either. I informed her that I wasn’t the first person he’d replaced without notification and I probably wouldn’t be that last. When I asked her what she would do in my shoes, she said that she would have called the boss and told him off. I said that you learn very quickly not to stand up for yourself against Pieter, he’s a bully and it never ends well for those who are brave enough to take a stand, and I explained my experiences with Pieter and Bamboo Direct.”



• “Jo told me that she really wanted me to stay on and teach her my job. I said that if she was capable enough to be hired to do my job then she shouldn’t need my help. I also told her that the files were labelled, organised and up to date and that she would have no difficulty picking up where I left off.”



• She denied bullying Ms Lia. “If anyone was ‘bullying’ anyone, she was trying to bully me into staying. However, I wouldn’t consider her insistence a bullying tactic, unlike the bullying Bamboo Direct employees are subjected to on a regular basis by Pieter McHeyzer.”



• “On 11th January Pieter sent me an email advising me that due to the conversation I had with Jo [Lia], my employment was terminated. He gave me three weeks notice but told me not to come back in - effectively dismissing me on the spot. The reasons he gave were another example of his bullying tactics - falsely accusing and threatening.”



• “At no time have I bullied anyone, nor did I suggest Jo not take the position nor that she was not capable of doing it. In fact I was supportive of her and assured her that she wasn’t responsible for me or anyone else being upset over her taking my position.”



• “The discussion between Jo and myself was simply a conversation between two people who each aired some grievances and expressed their own concerns and situations. It took place out of work hours in the relative privacy of our own homes.”



• “Although I was actively looking for employment elsewhere, it could be reasonably said that I would have left anyway so seeking compensation under unfair dismissal may seem unrealistic. However, prior to my official dismissal, I was already enquiring about my rights as I felt that I was being forced to resign through Pieter’s ongoing campaign to belittle and denigrate me. Additionally, prior evidence suggests that I would have stayed on until I found alternate employment. It is over 2 months since I was unfairly dismissed and I have not yet secured another position and I feel compelled to seek at least 8 weeks compensation.”

[7] In cross-examination, Ms Blackford said that:

• She did not like Mr McHeyzer when he interviewed her before she took up employment with the Company. 3



• She respected Mr McHeyzer when she commenced working with him. 4



• She remained as Administration Manager until August 2010. 5



• Her demotion from Administration Manager demotivated her. 6



• “I never stopped looking for other employment. From the day I started working for him, I was looking for other employment.” 7



• She enjoyed most of her time working at the Company. 8



• She discussed her dislike of Mr McHeyzer with other employees in mutual discussions of dislike for Mr McHeyzer. 9



• She believed Ms Lia was taking her job as Administration Manager although she did not hold that position at the time Ms Lia was appointed to it. 10



• She had three telephone conversations with Ms Lia. 11

[8] Ms Blackford’s cross-examination went on in some detail to examine the conversations the Applicant had with Ms Lia and I have paid regard to the detail of that cross-examination. Ms Blackford was then asked: “Do you believe it’s okay to denigrate your workplace as long as it happens outside work hours?” and replied: “Do I believe that it’s okay to do so? I believe I have the freedom to express my opinions anywhere.” 12

[9] Ms Blackford was then asked: “Including that your boss is a bully?” and replied: “It is my opinion, my firm belief, and I’ve sworn an oath to it, that he is a bully, and I will express that at work, at home or on the phone to someone I don’t know if it helps them and protects them so they can armour themselves to an incoming position.” 13

[10] Ms Blackford went on to agree that she expressed the view often at work that Mr McHeyzer was a bully. 14 The Applicant went on to say that she believed she had the right to say whatever she thought both at home and at work.15

Mr McHeyzer

[11] Mr McHeyzer gave sworn evidence and submitted a witness statement 16.

[12] Mr McHeyzer’s statement firstly dealt with changes in government policies and their effect on the Company and its workforce. This involved “a significant review of our expenses within our operation. This was done in response to a significant change implemented by the state government”.

[13] Mr McHeyzer became aware of Ms Blackford’s telephone contacts with Ms Lia and, after consulting with his management, came to the view that harmony in the workplace would require the dismissal of Ms Blackford.

[14] “To get a clearer picture of the events leading up to this point will require a bit of detail. In the last few months we have had a series of issues where Wendy’s professional results of her work have been very disappointing, and secondly her demeanour as the MYOB expert and trainer, thirdly as the pay mistress - some of the issues are very concerning, and finally with her apparent determination to actively work to undermine the business and ‘shitstir’ as much as possible as discussed with outsiders and staff in emails sent from work, all forced me to conclude that her ongoing involvement with our business must come to an end. Firstly her work as the senior clerical required her to manage the inter company contra accounts. In this role she was responsible for the inter company sale and subsequent purchase of stock between companies. She was also supposed to reconcile all the contra accounts. This work is so badly done that the external accountant doing a review in November was totally bemused as to how anyone producing these documents could be so far wrong and not ask for help. In her role as the MYOB expert and trainer of clerical staff, she managed to intimidate the bulk of the clerical staff, to the point that virtually no one would even go to her for help and most were using other staff to assist and would rather not get any help rather than go to Wendy - this again was highlighted by newer staff not even being aware that Wendy was supposed to be the MYOB trainer. As pay mistress, over the months of November and December we had an increase in overtime payments of over 700% with a corresponding decrease in travel time by almost 600%. This trend went totally unnoticed by my pay mistress who had been presiding over the same payroll for 18 months! At the same time one of my staff was about to be paid an extra $1000, she realized the problem early and very quickly rang Wendy to advise her - Wendy’s response was ‘am I bad?’ don’t worry about it. The staff member insisted that the payment not go through so finally Wendy agreed to reverse the payment. There is also an issue where Wendy after being demoted and advised in writing of her new pay rate continued to pay herself the higher rate and even wrote about it to an ex employee ‘done the pays kept my rate the same - Sophie (my wife who was doing the actual payments via netbank) did not pick it up, so far so good’.”

[15] “These incidents were what prompted me to finally move Wendy from payroll and the senior accounts position to one of cluster leader, this position would be a lot less technically challenging however would be at the same pay rate. Now, finally to the emails sent to outsiders and staff where she clearly states that she cannot stand working for me and will stay on only as long as it takes to get another job and continue to shitstir and undermine the business. There is also a [sic] email to the accountant where she has quite bluntly states she will be doing her job and no more - ‘don’t expect me to help with anything else’. Our business cannot afford to continue employing people like this, I am very comfortable that we will be able to justify her dismissal in court if needs be. I do not think there is an possibility of reinstatement, the groundswell of resentment towards her shocked me and I think it is best for all parties to move on.”

[16] In cross-examination, Mr McHeyzer said that he believed Ms Blackford contacted Ms Lia during Ms Blackford’s work hours. 17 He went on to agree that he did not hear the telephone discussions between the Applicant and Ms Lia.18

Ms Lia

[17] Ms Lia gave sworn evidence and submitted a witness statement 19.

[18] In her witness statement, Ms Lia said that she was contacted by Ms Blackford while Ms Lia was still working in a previous job before taking up her current position. Ms Blackford had complained about Ms Lia taking over her job and was highly critical of Mr McHeyzer, including making comments that Ms Lia considered very ‘racist’. Ms Lia went on to say: “Since taking on the position of admin manager it has been really surprising at all the comments from staff members that had to work closely with Wendy. ‘Like a dark cloud has been lifted’ ‘she was so unapproachable’. I have even had comments from other staff member stating that other people who worked closely with Wendy have been so much happier and more relaxed since she has gone as she bullied some of the staff members. Also since starting the job I have found a huge number of errors, whether they were intentional or not it is amazing to me and other members of staff how she managed to do her work and say it balances as I have had to go back 12 months to rectify Wendy’s mistakes. Wendy has admitted to me and others that she wasn’t happy and it shows in her work that she had lost interest a long time ago.”

[19] Attached to Ms Lia’s witness statement was a copy of an email from her to Mr McHeyzer dated 11 February 2011. That email sets out a number of issues related to payments to staff, workers compensation matters, superannuation and bank reconciliations in the context of matters requiring rectification after Ms Blackford’s departure from the Company.

[20] In cross-examination, Ms Lia disputed Ms Blackford’s version of their telephone discussions. Ms Lia went on to say that during a telephone conversation with Ms Blackford, the Applicant had said words to the effect: “He’s a dirty man; looks dirty and made me feel dirty” 20 in relation to Mr McHeyzer. Ms Lia went on to repeat her earlier evidence that Ms Blackford had told her that she should ‘feel guilty’ for taking Ms Blackford’s job.21

Ms Loh-Warman

[21] Ms Loh-Warman gave sworn evidence and submitted a witness statement 22.

[22] In her witness statement, Ms Loh-Warman said that when she joined the Company as the Accountant in February 2010, she gained the impression that Ms Blackford was angry with Mr McHeyzer for not appointing her firstly to the position of Accountant and later that of Purchasing Manager. Apart from that: “Wendy’s concern for Admin. Staff welfare; her suggestions on improving the processes and workflow in the company; her interest in HR (she was studying for a diploma) and computer systems, and intelligence were however commendable.”

[23] “She said that her thirty years of working experience and education were not appreciated by the company.” Ms Blackford made mistakes and was unhappy when those mistakes were pointed out to her, one of which resulted in some $70,000 excess overtime payments to staff. “Staff described or opined her as ‘sucking the air out of the room’. Her negative attitudes seemingly based on anger were evidence with her frequent criticism of the company and Pieter [Mr McHeyzer] within the organization. Wendy had little patience for some colleagues; this and her negativity intimidated them. She created enough disquiet with another colleague who confessed she was made to feel she should ‘hate her job’.”

[24] Ms Loh-Warman went on to say: “I have never come across a manager in charge of HR/Payroll who instead of being the intermediary between staff and management would deliberately encourage the staff to revolt. She had no respect for the Management team who she described as ‘gutless’, for ‘not having the courage to stand up to Pieter McHeyzer’.”

[25] “In my opinion, this whole episode is a clash of personalities. It is sad - Wendy had much to offer but because of her unhappiness at work, she did not rise to the occasion. A few of us, being aware of her unhappiness, were on the lookout for outside job opportunities for her.”

[26] In cross-examination, Ms Loh-Warman was asked if she considered Ms Blackford a friend when they worked together. Ms Loh-Warman said that she did and went on to say: “Friendship is friendship, but work is another thing. I mean, I’m friends with everyone at work but I’m considering the business and the professional role that we play as colleagues and workers in the same company.” 23

[27] Ms Loh-Warman said that she was still correcting mistakes made by Ms Blackford. 24 She disagreed that the mistakes made by Ms Blackford were minor in nature.25

Mrs McHeyzer

[28] Mrs McHeyzer (the wife of Mr P McHeyzer) gave sworn evidence and submitted a witness statement 26.

[29] Mrs McHeyzer said that Ms Blackford, as Administration Manager of the Company, was in charge of payroll and was able to put whatever systems she felt necessary in place to enable the smooth running of the payroll system. She was also required to assist in the MYOB training of new staff.

[30] “Within the first three (3) weeks I went to Pieter [McHeyzer] and advised him that I felt that Wendy’s manner was not on the same page as our company’s mission statement, and that it was affecting our staff’s morale. Pieter felt that as Wendy had informed him that she had struggled to secure employment in this high unemployment area at her age, and that she appreciated the start. Because of this Pieter insisted that we persist with Wendy and that she should be spoken to and retrained to work harmoniously within our office.”

[31] After Ms Blackford’s three month probation period, Mr McHeyzer decided to continue her employment and this caused Mrs McHeyzer and other staff some concern. However, Mr McHeyzer believed that Ms Blackford would improve in her attitude to other staff.

[32] In Mrs McHeyzer’s view, Ms Blackford created increasing difficulties in the workplace and the workplace mood has improved markedly since Ms Blackford’s dismissal.

[33] “For my own self, when Wendy was still in the office I would shirk away from contact with Wendy as much as possible, aside from the times where she spoke quite rudely to me, and treated my knowledge of accounting (I have a cert 4 in accounting, so actual training is beyond that of Wendy’s) and our business with scant regard, it was like being in a room with a dark cloud, joy was not an option.”

[34] Ms Blackford “made some crucial errors with the payroll and the way the files were sent to the banks, meant that many of our staff had to go through the whole weekend without their pay.”

[35] “I received a call from Jo Lia regarding Wendy’s call, she sounded very distressed, I have known Jo for a number of years and not much upsets her, so I knew she had been really abused verbally for her tobe acting this way. She asked if I thought that our office staff would hate her for being employed as Admin manager, and was considering what she should do. I tried to reassure her as best I could and advised Pieter of this development.”

[36] Nothing of significance to my determination of this matter arose in the cross-examination of Mrs McHeyzer.

Mr Scrimgeour

[37] Mr Scrimgeour gave sworn evidence and submitted a witness statement 27.

[38] Mr Scrimgeour said that he worked with Ms Blackford from July 2009 to January 2011. “During this time I had worked in a few different departments and had to deal with her on numerous occasions. On those occasions she was most difficult to deal with, I have never seen someone react in the way that Wendy did when I asked her to amend some ones pay (because she entered it wrong), and she swore and carried on calling this individual a liar and a cheat! She would on numerous occasions put individuals and the company down with her lack of care and poor attitude. In this time she would also put Pieter [McHeyzer] and Sophie [McHeyzer] down by calling them names and be belittling their directions.”

[39] Mr Scrimgeour went on to say: “She also said on a few occasions that Pieter was a ‘fucking arsehole’ and that he does not deserve what he has got … ‘I wish I never started here’ just came out of her mouth just about every time there was something hard to do that I asked her to do. Because at the time she was the only one that had access to certain parts of our computer system. Over all Wendy was very hard to deal with and if it was my business that she was working at I would have gotten rid of her a long time ago as the last 6-8 months of her employment she just cost the company money and a lot of heartache and pain.”

[40] In cross-examination, Mr Scrimgeour disagreed that most payroll errors were caused “due to a lack of care on the part of those signing off on the timesheets”. 28 Mr Scrimgeour went on to repeat that Ms Blackford was often critical of Mr McHeyzer and at least on one occasion called him ‘a fucking arsehole’.29

Submissions

[41] It was agreed that the hearing on 30 June 2011 that both parties would make their final submissions in writing. That process was completed on 12 August 2011.

Ms Blackford

[42] In her written submissions, Ms Blackford argued that there was no valid reason for her dismissal and that the reasons advanced by the Company were merely excuses concocted after the event. She went on, in summary, to argue that:

• She was never provided with any verbal or written warning prior to her dismissal.



• If her performance was deficient, Mr McHeyzer would have counselled her.



• She denied bullying Ms Lia.



• Ms Loh-Warman’s statement concerning errors in her work was incorrect and unjustified.



• Mrs McHeyzer was rarely in the Company’s office and “could not have been aware of any office issues from first hand experience ...”.



• Mr Scrimgeour’s evidence “was so full of holes as to be dismissible in total”.



• “In over 25 years working history I have never been subjected to such claims against me. I have always strived to behave professionally and with respect for my position and my colleagues. I am a typical ‘type A’ personality, a high achiever with high expectations of myself and my work output. This has been one of the main contributors to my management level work history spanning over 20 years. I also believe that anyone, outside of Bamboo Direct and the influence of Mr McHeyzer, would overwhelmingly confirm me to be an excellent manager, easy-going and amiable.”



• She only offered Ms Lia her opinion of Mr McHeyzer in the context that Ms Lia had offered her own opinion of her then current employer and had asked Ms Blackford what her opinion of Mr McHeyzer was.



• Ms Lia’s evidence was tainted by her friendship with Mr McHeyzer and her status as a current employee of the Company.



• She was not paid the three weeks’ notice which the Company claimed to have paid her.



• Since her dismissal, she has applied for 33 positions, registered with 5 employment agencies and sent 53 letters to perspective employers.



• She has attended 4 job interviews but without success.



• She now seeks the maximum compensation of 26 weeks available under the Act.

The Company

[43] The Company argues that:

“The applicant was dismissed because she lost the trust and confidence of her employer, [the Company] refers to and relies on the comments of Dixon and McTiernan JJ in Blyth Chemicals v Bushnell (1933) 49 CLR 66 at 81-82:

Conduct which in respect of important matters is incompatible with the fulfilment of an employee’s duty, or involves an opposition, or conflict between his interest and his duty to his employer, or impedes the faithful performance of his obligations, or is destructive of the necessary confidence between employer and employee, is a ground of dismissal ... But the conduct of the employee must itself involve the incompatibility, conflict, or impediment, or be destructive of confidence. An actual repugnance between his acts and his relationship must be found.”

[44] The Company’s written submissions go on, in summary, to argue that:

• There is no evidence of Mr McHeyzer being a bully.



• She criticised and belittled Mr McHeyzer in telephone conversation with Ms Lia.



• “Ms Lia’s evidence is that during her telephone conversation with the applicant on 6 January 2011, the applicant said to her that Mr McHeyzer ‘is a very sexist man. He gets enjoyment out of making women cry’. The applicant also told Ms Lia that she ‘should feel guilty for taking a job of a lady her age’. Ms Lia was intimidated and felt bullied by the applicant. Ms Lia was very forthright and gave consistently frank answers and should therefore be believed.”



• Ms Blackford was detrimental to the business and undermining the business.



• The Company’s email of 10 January 2011 notified Ms Blackford of the reason for her dismissal.



• Ms Blackford was invited to meet with Mr McHeyzer to discuss his email of 10 January but declined to do so.



• “There was no refusal by [the Company] for the applicant to have a support person present to assist in any discussions relating to dismissal. To the contrary, the applicant chose not to follow-up on the invitation to have discussions with [the Company] in relation to her dismissal.



• The dismissal was not related to unsatisfactory performance.



• “The applicant’s phone call to Ms Lia was on Thursday, 6 January 2011. Mr McHeyzer learned about the phone call Friday, 7 January 2011. Mr McHeyzer then consulted his management extensively over the weekend as to how to respond to the applicant’s behaviour. Management agreed that the last thing the business needed was someone actively working against it. Following consultation with management, Mr McHeyzer gave the applicant written notice of termination on Monday, 10 January 2011. [The Company] paid the applicant 3 weeks’ notice in lieu.”



• Ms Blackford was paid three weeks pay in lieu of notice upon dismissal where the statutory obligation was only two weeks.



• Ms Blackford was employed by the Company for less than 18 months.



• There is no evidence that Ms Blackford has attempted to mitigate her loss.



• Ms Blackford was seeking alternative employment from the first day she started work with the Company.

Conclusions and Findings

[45] It is common ground between the parties that Ms Blackford’s employment was terminated at the initiative of the Company by way of an email from Mr McHeyzer on 10 January 2011. That email read as follows:

“Hi Wendy

After discussions with Jo Pritchard [also know as Ms Joanne Lia] regarding your interesting phone conversations with her regarding our organisation, my management ethics, her credentials and your planned non cooperation.

I would like to formally advise you that I will be terminating your services with our organisation. I am giving you three weeks notice effective today. This will mean your employment will cease with our company on the 31st of January.

You will not be required in the office during this time and we will make alternate arrangements to do payroll.

I do not expect you to ring and attempt to bully any of our future or current employees. I am requesting that you do not communicate with my staff during work hours.

I am also going to take legal advice as to the level of slander or defamation that has been incurred in emails and verbally to ex-employees as well as future employees. There is also a possible instance of wage fraud that will be investigated in the next few weeks.

If you wish to discuss this in person I will be back in Coffs Harbour next Monday - the 17th and will be prepared to meet with you then.”

[46] The Company appears to have relied on an allegation of serious misconduct by Ms Blackford as a valid reason for the termination of her employment. It had earlier demoted her, apparently on the ground of performance issues.

[47] Much of the evidence from Company witnesses, particularly Ms Loh-Warman, went to the question of Ms Blackford’s performance in her time with the Company. However, I note from the Company’s written submissions that performance issues are not relied upon as a reason for the termination of Ms Blackford’s employment. I will therefore not consider the question of Ms Blackford’s work performance in determining her application for relief. However, if I were required to do so, it would be my finding that Ms Blackford’s work performance was certainly below that which the Company could reasonably have expected from her.

[48] As the Applicant’s conduct is the reason given by the Company for the termination, I have to determine for myself whether the impugned conduct occurred and, if so, whether it amounted to a valid reason for termination of employment. In this regard I respectfully agree with the following observations of the Full Bench in King v Freshmore (Vic) Pty Ltd 30:

“When a reason for a termination is based on the conduct of the employee, the Commission must, if it is an issue in the proceedings challenging the termination, determine whether the conduct occurred. The obligation to make such a determination flows from s.170CG(3)(a). The Commission must determine whether the alleged conduct took place and what it involved.

The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.”

[49] In Container Terminals Australia Limited v Toby 31, a Full Bench of the Australian Industrial Relations Commission said: “In our view, the consideration of whether there was a valid reason for termination is a separate issue from the determination of whether a termination was harsh, unjust or unreasonable…”32

[50] Northrop J in Selvachandran v Peteron Plastics Pty Ltd 33 said:

“In its context in s 170DE(1), the adjective "valid" should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the reason must be valid in the context of the employee's capacity or conduct or based upon the operational requirements of the employer's business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘be applied in a practical, commonsense way to ensure that’ the employer and employee are each treated fairly, ….”

[51] In Qantas Airways Ltd v Cornwall 34, the Full Court of the Federal Court said:

“The question is whether there was a valid reason. In general, conduct of that kind would plainly provide a valid reason. However, conduct is not committed in a vacuum, but in the course of the interaction of persons and circumstances, and the events which lead up to an action and those which accompany it may qualify or characterize the nature of the conduct involved.”

[52] In Edwards v Justice Giudice 35, Moore J said:

“The reason would be valid because the conduct occurred and justified termination. The reason might not be valid because the conduct did not occur or it did occur but did not justify termination.”

[53] I have formed the view that the Company witnesses were truthful in their evidence concerning the conduct of the Applicant. In particular, I prefer the evidence of Mr McHeyzer and Ms Lia to that of the Applicant where their evidence is in conflict. Ms Blackford took a personal dislike to Mr McHeyzer from the moment she was first interviewed by him for a position with the Company. Although she claims to have respected Mr McHeyzer on a professional level, her attitude to him and her denigration of him to fellow staff members was conduct which fell far below any reasonable expectation of loyal service which any employer is entitled to expect from an employee. It is clear to me that Ms Blackford was repelled by Mr McHeyzer in a way which was almost visceral.

[54] The Applicant appears to believe that she was entitled to express her views about anything and anyone at any time and that the expression of such views should not have any detrimental consequences. Her behaviour and comments during discussions with Ms Lia definitely amounted to misconduct and she had no reasonable expectation that her statements to Ms Lia would remain confidential. The dual purpose of her remarks to Ms Lia was to chide Ms Lia for taking the position of Administration Manager at the Company and to undermine Mr McHeyzer in his future dealings with Ms Lia.

[55] I therefore find that there was a valid reason for the termination of Ms Blackford’s employment based on Ms Blackford misconducting herself during her conversations with Ms Lia.

[56] I now turn to the question whether the dismissal of the Applicant was harsh, unjust or unreasonable. Section 387 of the Act sets out the criteria for considering harshness etc. It provides:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA 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 FWA considers relevant.”

[57] In Byrne v Australian Airlines 36, McHugh and Gummow JJ of the High Court said:

“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.”

[58] The question of valid reason is dealt with above.

[59] It is clear that Ms Blackford was notified of the reason(s) for the termination of her employment by way of Mr McHeyzer’s email of 10 January 2011 and I so find. It is further clear and I find that Ms Blackford was not given an opportunity to respond to any allegations against her as the dismissal email was presented to her as a fait accompli. Mr McHeyzer’s offer to the Applicant to discuss the termination of her employment on 17 January 2011 cannot constitute the provision of an opportunity to respond. Ms Blackford’s refusal to meet with Mr McHeyzer in such circumstances was reasonable.

[60] I also find that the manner in which the Company terminated Ms Blackford’s employment denied her the right to have a support person of her choice present during any discussion(s) with the Company prior to her dismissal.

[61] I am satisfied and find that Ms Blackford was not warned about her unsatisfactory conduct prior to the termination of her employment.

[62] The size of the employer’s enterprise is a factor which is likely to have impacted on the procedure followed in effecting the Applicant’s dismissal. On what is before me, I conclude that the Company is a medium sized operation with limited access to internal advice on industrial relations matters. This would have impacted significantly on the procedures followed in effecting the dismissal of the Applicant and I so find.

[63] As noted above, it is not in issue that the Company does not employ dedicated human resources management specialists or possess any particular expertise within the enterprise relating to human resources management and I so find. Apparently the position of Administration Manager included some human resources management duties but these were merely an adjunct to the role.

[64] Section 390 of the Act provides:

“390 When FWA may order remedy for unfair dismissal

(1) Subject to subsection (3), FWA may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) FWA is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) FWA may make the order only if the person has made an application under section 394.

(3) FWA must not order the payment of compensation to the person unless:

(a) FWA is satisfied that reinstatement of the person is inappropriate; and

(b) FWA considers an order for payment of compensation is appropriate in all the circumstances of the case.

Note: Division 5 deals with procedural matters such as applications for remedies.”

[65] In all the circumstances of this case, reinstatement would in my mind be impracticable and undesirable. The employment relationship between Ms Blackford and Mr McHeyzer could never be restored given the attitude of the Applicant and the fraught relationship between her and Mr McHeyzer. I therefore find that reinstatement is not an appropriate remedy in this case.

[66] Where reinstatement is not ordered, the Tribunal may order the payment of monetary compensation. Subsection 392(2) of the Act sets out the criteria for deciding a suitable level of compensation:

“(a) the effect of the order on the viability of the employer’s enterprise; and

(b) the length of the person’s service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

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

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

(g) any other matter that FWA considers relevant.”

[67] In relation to subparagraph (a), I find that the effect of the order I intend to make will not have any obvious effect on the viability of the Company. In relation to subparagraph (b), I have taken into account the duration of the Applicant’s employment with the Company. In relation to subparagraph (c), I am satisfied that the Applicant’s employment prospects with the Company were extremely limited at the time of her dismissal and that she would not have continued in the employ of the Company for any significant period. In relation to subparagraph (d), I am satisfied that the Applicant has made efforts to mitigate her loss. I have also paid regard to subparagraphs (e) and (f). In relation to subparagraph (g), I have considered Ms Blackford’s age, skills set, the financial effect on her arising from her dismissal and her limited prospects of obtaining other suitable employment in the short to medium term.

[68] Subsection 392(3) of the Act provides that:

“(3) If FWA is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, FWA must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.”

[69] In the case before me, I am satisfied and have found that misconduct by Ms Blackford occurred and this provision is therefore relevant to my consideration. My assessment of the contribution by the Applicant towards the Company’s decision to terminate her employment has been factored into the quantum of compensation that I have decided to award.

[70] All in all, I find that the termination of the Applicant’s employment was procedurally harsh and denied her natural justice and an order will be issued that the Company pay her a total of two weeks wages (less appropriate tax according to law) to be paid at the rate the Applicant was earning as at the date of the termination of employment. Should there be any dispute between the parties as to the monetary amount to be paid, the matter can be referred back to me for settlement within 14 days of the date of this decision. I have arrived at the figure of two weeks wages after applying a discount to the amount which I would otherwise have awarded had the Applicant’s conduct not contributed to her own dismissal to such an extent. The sum awarded is to be paid within 14 days of the date of this decision.

[71] I wish to make it clear to the parties that my finding as to harshness is solely derived from my assessment of the fundamentally unfair process followed by the Company in effecting the dismissal. Given the facts in this case, had the Company followed a fair and transparent process, it would have been highly unlikely that any award would have been made in the Applicant’s favour given my views as to her conduct during the employment relationship. Ms Blackford took up a position with a company whose Principal she disliked from the date of her employment interview. That dislike only increased over time and Ms Blackford only remained in the Company’s employ because she had no other job to go to. The result was a poisonous employment relationship which probably should never have been extended beyond the probation period. My view is that Ms McHeyzer treated Ms Blackford in a basically fair manner but every aspect of their dealings was coloured by Ms Blackford’s intense and increasing personal dislike for him. Such a situation is doomed to end unhappily and this case was no exception.

[72] In accordance with s.381(2) of the Act, I am further satisfied that each party has been accorded a ‘fair go all round’ in these proceedings.

[73] An order reflecting this decision is in PR515813.

COMMISSIONER

Appearances:

W Blackford, the Applicant.

D Parish of Counselfor Bamboo Direct Pty Ltd.

Hearing details:

2010.
Coffs Harbour:
June 30.

Final written submissions:

11 August 2011.

 1   See Respondent’s outline of submissions.

 2   Exhibit Blackford 1.

 3   Transcript PNs115-116.

 4   Transcript PNs118-119.

 5   Transcript PNs121-122.

 6   Transcript PNs128-130.

 7   Transcript PN132.

 8   Transcript PN157.

 9   Transcript PN162.

 10   Transcript PN202 and following.

 11   Transcript PN227.

 12   Transcript PN272.

 13   Transcript PN273.

 14   Transcript PNs274-275.

 15   Transcript PNs278-279.

 16   Exhibit Bamboo 2.

 17   Transcript PN351-356.

 18   Transcript PN367.

 19   Exhibit Bamboo 3.

 20   Transcript PN449.

 21   Transcript PN468.

 22   Exhibit Bamboo 4.

 23   Transcript PN550.

 24   Transcript PN581.

 25   Transcript PN597.

 26   Exhibit Bamboo 5.

 27   Exhibit Bamboo 6.

 28   Transcript PN739.

 29   Transcript PN740 and following.

 30   Print S4213, 17 March 2000.

 31   Print S8434, 24 July 2000.

 32   Ibid at para 15.

 33 (1995) 62 IR 371 at 373.

 34 [1998] FCA 865.

 35 [1999] FCA 1836.

 36 (1995) 185 CLR 410.

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<Price code C, PR515812>