1
[2013] FWC 3392
DECISION
Fair Work Act 2009
s.394—Unfair dismissal
Rebecca Jones
v
Brite Services
(U2013/6001)
DEPUTY PRESIDENT GOSTENCNIK BRISBANE, 29 MAY 2013
Termination of employment - harsh, unjust or unreasonable.
Introduction
[1] Rebecca Jones (Applicant) has made an application under s.394 of the Fair Work Act
2009 (Act) for a remedy for unfair dismissal in which she alleges that on 17 January 2013 she
was unfairly dismissed by her employer, Brite Services (Respondent). The Applicant was,
until the termination of her employment, employed by the Respondent as the Manager, People
and Culture.
[2] The Respondent is a registered company under the Corporations Act 2001 limited by
guarantee. The Respondent is located in Broadmeadows, Victoria. It is governed by a Board
of elected Directors. The Respondent provides training to and employment for people with a
disability and derives its income primarily through government funding and charitable
donations. 1 Approximately 150 of its employees have a disability and are the beneficiaries of
the Respondent’s employment program. A further 25 employees provide supervision and
assistance to the employees with a disability, or participate in the management of the
Respondent’s organisation.2 The Respondent is not, and was not at the time it dismissed the
Applicant, a “small business employer” to which the Small Business Fair Dismissal Code
applied.
Factual context
Commencement and terms of employment
[3] The Applicant’s association with the Respondent began in October 2011 when she was
assigned to provide human resources support services to the Respondent by a labour hire
agency3. Approximately four months into this assignment, the Applicant was offered direct
employment with the Respondent in the position of acting Manager, People and Culture. The
1 Exhibit R6 at [1]
2 Exhibit R6 at [1]
3 Transcript PN59
AUSTRALIA FAIR WORK COMMISSION
[2013] FWC 3392
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employment was for a fixed term of three months, with an option of a further three months
employment.4 The option was exercised, at the conclusion of which, the Applicant was
engaged as an on-going employee in the role of the Manager, People and Culture.5
[4] The terms of the Applicant’s on-going employment with the Respondent were not
contained in any written instrument, although a draft executive contract had been prepared but
not executed as the parties were awaiting the finalisation of the Respondent’s motor vehicle
policy.6 The hours of work for which the Applicant was employed increased from three days
to four shortly after the on-going employment commenced.7 On 16 February 2013, the
Respondent agreed to a request from the Applicant to alter her working days back to three
days per week.8
The Chief Executive Officer
[5] During the Applicant’s employment, the Applicant reported to Ms Julie McKay, the
Chief Executive Officer (CEO) of the Respondent.9 Commencing on 14 December 2012 and
during the whole of the period in which the events leading to the termination of the
Applicant’s employment occurred, and to which I will return shortly, Ms McKay was absent
from work because of ill health. Mr Paul Tant, the Manager of Finance and Corporate Service
of the Respondent was Acting CEO for most of this period.10
[6] There is a dispute about the precise date on which Mr Tant became Acting CEO. The
Applicant says that Mr Tant became Acting CEO on 21 December 2012.11 The Respondent’s
evidence is that Mr Tant was asked to act as CEO by Ms Beverley Lee, Vice Chairperson of
the Board in the company of Ms Helena Gillies, the Chairperson, on 21 December 201212,
however this was merely confirming an “unofficial understanding” that Mr Tant was acting
CEO during Ms McKay’s absence between 14 and 20 December 2012.13 The Respondent
relies upon the content of a document titled “Brite Services Position Description for Manager,
Corporate Services”14 (Position Description) to support this later contention.
[7] The Position Description is document relevantly provides that the “CEO delegate’s
(sic) appropriate and adequate authority to the Manager, Corporate Services to . . . Act in the
Chief Executive Officer capacity as required”.15 On a proper reading of the Position
Description, Mr Tant, as the present occupant of the Manager, Corporate Services position,
does not exercise delegated functions of the CEO whenever the CEO is absent. Rather, the
delegation becomes operative only when he is required to so act. This rather begs the issue,
4 Transcript PN61 - PN62
5 Transcript PN65 - PN66
6 Transcript PN64; A copy of the draft executive contract is attachment “PT3” to Exhibit R8.
7 Transcript PN67
8 Exhibit R8 at [9]
9 Transcript PN63, PN69
10 Transcript PN63 - PN64; Exhibit R8 [3(g)]
11 Transcript PN70
12 Exhibit R6 [5]; Transcript PN730; Exhibit R8 [6]
13 Transcript PN794
14 Exhibit R10
15 Exhibit R10, p5
[2013] FWC 3392
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required by whom? The answer must be, by either the Board or the CEO. So much is apparent
from clause 2.10 of the Respondent’s policy on delegation of authority16 (Delegation Policy)
which provides:
“In the event the Chief Executive Officer is not available for an extended period, an
alternative member of staff is to be authorised by the Board or the Chief Executive
Officer to exercise the same powers conferred to the Executive Officer.”17 (Emphasis
added)
[8] There is little by way of probative evidence to support a conclusion that Mr Tant
assumed the role of Acting CEO prior to being so appointed on 21 December 2012. Mr Tant’s
evidence is he “acquiesced to taking on the role” during his meeting with Ms Gillies and
Ms Lee on 21 December 2012.18 The Respondent also relies on an email dated 18 December
2012 from Ms McKay to a number of staff of the Respondent including Mr Tant and the
Applicant.19 The email advises the recipients of Ms McKay’s absence on sick leave and that if
“there are pressing matters, please refer these to Paul Tant (thanks Paul) and if you need me to
approve cheque runs, payroll, etc, please drop me an sms and I will do whatever I can.”.20
[9] The email is an indication that Mr Tant will be available to deal with pressing matters
that might arise during Ms McKay’s sick leave absence. This is at best, a delegation of
particular matters by the CEO to Mr Tant. It is clear that Ms McKay intended to carry out
some of her duties and functions from home. The email is not authorisation by the CEO for
Mr Tant to act as CEO as required by clause 2.10 of the Respondent’s Delegation Policy, nor
was it a requirement that he act as CEO within the meaning of the Position Description.
[10] The Respondent’s suggestion, noted earlier above, that there was an “unofficial
understanding” that Mr Tant was Acting CEO during Ms McKay’s absence between 14 and
20 December 2012, seems to run counter to the written procedures the Respondent had in
place to deal with such an appointment. There is no evidence about how widely this
“unofficial understanding” was communicated or understood. The “unofficial understanding”
as described, is more consistent with Ms McKay’s email advising that Mr Tant is available to
deal with pressing matters in the CEO’s absence, than with Mr Tant’s appointment as, or of
him assuming the role of, Acting CEO. The relevant decision appointing Mr Tant as Acting
CEO with effect from 21 December 2012 was not endorsed by the Board until 16 January
2013.21 In the circumstances I am satisfied that Mr Tant became Acting CEO of the
Respondent on 21 December 2012 and not before. Although the parties spent some time in
evidence about this matter, in the context of the Applicant’s dismissal, this application and the
matters that I am required to decide, I am not persuaded that anything material turns on this
point.
16 Exhibit A5
17 Exhibit A5, cl 2.10
18 Exhibit R8 [6]
19 Exhibit R11
20 Exhibit R11, p2
21 Exhibit R9
[2013] FWC 3392
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The Board
[11] A newly elected board of directors of the Respondent met for the first time on
13 December 2012.22 One of the items of business conducted at this meeting was the
establishment of a sub-committee of the Board for the purpose of reviewing the performance
of the CEO.23 The Board authorised the sub-committee to be given access to any information
it required and directed the Respondent’s employees to co-operate in providing such
information.24
[12] Two members of the sub-committee, Ms Gillies and Ms Lee visited the
Broadmeadows workplace on 21 December 2012 for the purpose of obtaining employment
contract related documents as part of the CEO’s performance review, to speak with Mr Tant
about the CEO’s absence from work, and to speak with Mr Ben Kelly, a Nursery Manager
employed by the Respondent.25
[13] As noted above, Mr Tant was appointed Acting CEO during this visit.
Telephone conversation between the Applicant and Mr Kelly on 21 December 2012
[14] It is now not in dispute that sometime during the morning of 21 December 2012, the
Applicant initiated a telephone call to, and spoke with Mr Kelly.26 I use the word ‘now’,
because it appears that until cross-examination of the Applicant by Ms Dastan, for the
Respondent on 10 May 2013, the Applicant maintained that she had not spoken with Mr Kelly
at all on 21 December 2012. This is evident from the Applicant’s own file note dated
15 January 2013 recording the Applicant’s version of her response to the Respondent when
confronted with an allegation that she had telephoned Mr Kelly on 21 December 2012.27
[15] Moreover the fact that a conversation between Mr Kelly and the Applicant occurred at
all on 21 December 2012 was certainly not part of the Applicant’s evidence in chief. The
content of the telephone conversation remained in dispute.
[16] The substance of the allegation was that during the telephone discussion the Applicant
told Mr Kelly that:
Beverley (Lee) and Helena (Gillies) were on the property asking questions about
employment contracts and other matters the detail of which Mr Kelly could not
recall;
She had spoken with Julie (McKay); and
Julie told her to call Ben (Kelly) straight away and let Ben know to tell them
nothing.28
22 Exhibit R6 [3]
23 Exhibit R6 [3]
24 Exhibit R6 [3]
25 Exhibit R6 [5]; Exhibit R7 [2]
26 Exhibit R1 [2]; Transcript PN122 - PN124; PN134
27 Exhibit A2
28 Exhibit R1 [3] and attachment BK1 thereto
[2013] FWC 3392
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[17] The Applicant gave evidence that on the morning of 21 December 2012 during the
visit to the workplace by Ms Gillies and Ms Lee, she telephoned Mr Kelly. The Applicant’s
version of the conversion is recorded in transcript as follows:
“You did ring Ben Kelly?---I rang Ben Kelly. I said that, “I’ve noticed that Helena and
Beverley are in with Paula. When they’ve finished you might want to see if Paula is
okay and offer her some support.”
So, “I noticed Helena and Beverley are in with Paula”?---“Once they’ve finished you
might just want to see if she’s okay and offer some support.” I did not say to Ben, “Do
not cooperate or speak to the board.” So I feel there has been some confusion around
all of this.”29
[18] The Applicant’s explanation of the inconsistency between her responses to the
Respondent and her file note of 15 January 2013 on the one hand and her evidence on the
other was that:
“I didn’t make the correlation or the link. I didn’t think it was relevant to the context of
the conversation. I was put on the spot. I was quite upset. I was quite anxious. I wasn’t
sure why I was questioned on something that I felt I had not said.”30
[19] In his oral evidence Mr Kelly agreed that during the telephone conversation with the
Applicant on 21 December 2012, the Applicant had said to him that Helena and Bev were in
the office with Paula, but did not recall the Applicant mentioning about support for Paula.31
Mr Kelly’s evidence about the conversation and its immediate aftermath is that he received a
telephone call in the morning of 21 December 2012 from the Applicant.32 At the time that he
answered the telephone he was in the central work area of the nursery office building in the
company of two other employees of the Respondent, James Clare and Stephanie Gravina.33
[20] During the telephone call, Mr Kelly says the follow was exchange occurred:
“Rebecca said “Beverley and Helena were on the property asking questions about
employment contracts.” Rebecca mentioned other things they had been asking about as
well but I cannot recall precisely what those other things were.
I said: “So what?”
She said: “I spoke to Julie about it and she said to call you straight away and let you
know to tell them nothing.”
I said: “Why?”
She said: “Julie said tell them nothing.”
29 Transcript PN123 - PN124
30 Transcript PN135
31 Transcript PN537 - PN541; PN548 - PN553
32 Exhibit R1 at [2] - [3]
33 Exhibit R1 at [3]
[2013] FWC 3392
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I said: “Thanks for that!” and ended the call.”34
[21] The Applicant did not challenge Mr Kelly on his version of events during cross-
examination of him. She did not put to him that he was not being truthful, or that he was
mistaken, or that he had some ulterior motive for maintaining his version of the conversation.
The Applicant did not put to Mr Kelly her version of the conversation, or that her version was
more accurate than his. This was despite prompting and assistance from me.35 However as the
Applicant was unrepresented at the hearing I am prepared to accept that the Applicant
sufficiently joined issue with Mr Kelly’s version of the telephone conversation by the totality
of her evidence, and that the Respondent was on notice of this before Mr Kelly was called to
give evidence. Therefore I do not draw any inference adverse to the Applicant’s case because
of her failure to directly put such matters to Mr Kelly.
[22] Mr Kelly gave evidence that immediately after the conclusion of the telephone
conversation he said to his colleagues, Mr Clark and Ms Gravina: “You will not believe that
straight after Helena and Bev were here that Rebecca has called me and told me she has
spoken to Julie and was (sic) to tell them nothing.”36
[23] Ms Gravina and Mr Clark both gave evidence confirming that each had observed
Mr Kelly answer the telephone on the morning of 21 December 2012, participate in a
conversation with the caller and that at the end of the call, Mr Kelly relayed to them the
message that he had received from the Applicant.37 Whilst the words used by each witness to
describe Mr Kelly’s recounting of his conversation with the Applicant differ from each other
and from Mr Kelly’s own account, the substance of the conversation as disclosed by their
evidence is consistent with Mr Kelly’s evidence. Neither Ms Gravina nor Mr Clark was
challenged about the substance of their evidence by the Applicant.38 I accept their evidence as
credible. I find that on 21 December 2012, shortly after concluding a telephone conversation
with the applicant, Mr Kelly told Ms Gravina and Mr Clark that he had just received a call
from that Applicant and that the substance of the conversation was that the Applicant had told
him that Ms McKay had asked her to tell him to tell Helena and Bev nothing.
[24] The following facts are not disputed by the Applicant. After speaking to his
colleagues, Mr Kelly proceeded to call Ms Lee, then Ms Gillies, and informed each of them
about the conversation he said he had with the Applicant.39 Later on 21 December 2012,
Ms Gillies and Ms Lee returned to the workplace and informed Mr Tate of the information
received by them from Mr Kelly.40 Subsequently, but still on 21 December 2012, Mr Kelly
was asked to prepare a note about his conversation with the Applicant.41 On 21 December
2012 Mr Kelly prepared, signed and dated a note of his version of the conversation with the
34 Exhibit R1 at [3]; Attachment BK1 to Exhibit R1
35 Transcript PN537 - PN566
36 Exhibit R1 at [4]
37 Exhibit R2 at [2] - [3]; Exhibit R3 at [2] - [5]
38 See Transcript PN588 - PN592; PN619 - PN620
39 Exhibit R1 at [5] - [7]; Exhibit R6 at [6] - [7]; Exhibit R7 at [5]
40 Exhibit R6 at [9]; Exhibit R7 at [7]
41 Exhibit R7 at [7]; Exhibit R1 at [7]; Transcript PN561 - PN562
[2013] FWC 3392
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Applicant and gave it to Ms Gillies.42 A copy of the note appears as attachment BK1 to the
statement of Ben Kelly.43
[25] The dispute about the substance of the telephone conversation between the Applicant
and Mr Kelly on 21 December 2012 remains. I accept Mr Kelly’s version of events and reject
the Applicant’s oral evidence about the conversation. I do so for the following reasons:
Mr Kelly presented as a credible witness;
Mr Kelly had no apparent reason to lie or to make up the substance of the
conversation;
Mr Kelly told his two colleagues, Mr Clark and Ms Gravina of the substance of the
telephone conversation. This was a contemporaneous communication about the
substance of the telephone discussion with the Applicant;
Mr Kelly told Ms Lee and Ms Gillies about the substance of the conversation. These
were also contemporaneous communications about the substance of the telephone
discussion with the Applicant;
Mr Kelly made a note of the conversation while its content was still fresh in his
mind;
The Applicant maintained initially that she had neither spoken to nor seen Mr Kelly
on 21 December 2012 and only conceded that she had spoken to Mr Kelly during
cross-examination;
The Applicant’s version of her conversation, namely that she asked Mr Kelly to offer
support to Paula, is difficult to accept and is unlikely when one considers the
Applicant’s concession that as Manager, People and Culture, she did not offer any
support to Paula;44
The Applicant’s explanation for the inconsistency between her oral evidence and her
file note of 15 January 2013, particularly relating to her view of its relevance, being
put on the spot and not being sure of why she was being questioned, is difficult to
accept and is also unlikely when one take into account the following:
the Applicant’s file note was written almost four weeks after the alleged
conversation with Mr Kelly;
the meeting on 15 January 2013 was the second occasion that she had been
spoken to by Ms Gillies about the alleged conversation with Mr Kelly;
the meeting with Ms Gillies and Mr Richard Duffy, another Director,
occurred at approximately 1.15 pm on 15 January 2013. The note was
completed at some time after 4.45 pm that day since it records that the
Applicant “Phoned Paul Tant acting CEO 4.45pm to advise as to what
happened”.45 The note was sent to Mr Tant by email at 5.07 pm.46 The
Applicant therefore had time to consider the content of the note, and was not
“put on the spot” while she wrote it.
Ms Kelly did not call Ms McKay to give evidence although she was given every
opportunity to do so.47 Ms McKay was relevant to the Applicant’s case in as much as
42 Transcript PN563; Exhibit R6 at [11]
43 Exhibit R1
44 Transcript PN244 - PN248
45 Exhibit A2
46 Exhibit A2
47 Transcript PN438 - PN446
[2013] FWC 3392
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she could have given evidence that she did not have a conversation with the
Applicant on 21 December 2012.
Respondent’s ‘investigation’
[26] Ms Gillies gave evidence that after receiving the telephone call from Mr Kelly on
21 December 2012 during which Mr Kelly communicated the substance of the conversation
he had had with the Applicant, Ms Gillies contacted the Respondent’s solicitors and was
advised to obtain a written statement from Mr Kelly about the telephone conversation.48
Ms Gillies, in the company of Ms Lee, then returned to the workplace at which time
Ms Gillies informed Mr Tant of Mr Kelly’s allegations and asked Ms Lee to locate Mr Kelly
so that a written statement might be obtained.49 None of this evidence is disputed by the
Applicant.
[27] It is not disputed that shortly after Ms Gillies returned to the workplace, Ms Gillies
initiated a discussion with the Applicant about Mr Kelly’s allegations, although Mr Kelly was
not identified.50 The discussion occurred in the staff lunchroom which also contains a
photocopier, and the Applicant was not given notice of the discussion nor its proposed
content.51
[28] Whilst the Applicant and Ms Gillies gave differing accounts of the precise words used
during the discussion52, the substance of the discussion is consistent. The Applicant made a
file note of the conversation at some later point which she emailed to Mr Tant on 10 January
2013.53 Having regard to the totality of the evidence, I am satisfied that:
During this conversation Ms Gillies asked whether, or alleged that, the Applicant
had telephoned a member of staff and instructed him to tell Ms Gillies and Ms Lee
nothing;
Ms Gillies also told the Applicant that a staff member had alleged that the Applicant
had made such a statement by telephone;
The Applicant said that she did not know what Ms Gillies was talking about and she
denied the allegation;
The allegation as communicated by Ms Gillies to the Applicant was not precisely
what Mr Kelly had told Ms Gillies. Mr Kelly told Ms Gillies that the Applicant had
told him that Ms McKay had asked the Applicant to call Mr Kelly to tell him to “tell
them nothing”54 Ms Gillies said that she asked the Applicant: “Did you telephone
any member of staff and tell them to ‘say nothing’ to me or Beverley.”55 No mention
is made of Ms McKay’s instruction to the Applicant. This is understandable given
the flurry of telephone calls and conversation to which Ms Gillies was a party on that
day and the absence of a written statement from Mr Kelly at the time the
conversation occurred;
48 Exhibit R6 at [8]
49 Exhibit R6 at [9]
50 Exhibit R6 at [10]; Exhibit A4 at [1]; Transcript PN67 - PN70
51 Exhibit R6 at [10]; Exhibit A4 at [1]; Transcript PN70
52 Exhibit R6 at [10]; c/f Transcript PN70 - PN71 and Exhibit A4 at [1]
53 Exhibit A1; Transcript PN73 - PN75
54 Exhibit R1 at [3] and attachment BK1 thereto
55 Exhibit R6 at [10]
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The substance of the allegation was clearly communicated by Ms Gillies to the
Applicant;
The Applicant was unprepared for the discussion and was caught by surprise;
The Applicant sought to mislead the Respondent by her denial.
[29] I am also satisfied that the Applicant sought to mislead the Respondent when on
10 January 2013 she sent Mr Tant her file note of the conversation with Ms Gillies of
21 December 2012 in so far as the file note contained a denial of the allegation.
[30] As indicated earlier above, pursuant to a request from his employer, Mr Kelly
prepared, signed and dated a note recording his recollection of the conversation with the
Applicant.56 The note was given to Ms Gillies.57 By this time, the Applicant had left the
workplace, and as it was the final day of work before the Christmas break, Ms Gillies could
not discuss the allegation further with the Applicant and decided to leave the matter until the
business re-opened in January 2013.58
[31] Although the business re-opened on 7 January 2013, the Applicant was not spoken to
until 15 January 2013 as Ms Gillies seemed to be under the impression that the Applicant had
been away from work until that date.59 After lunch on 15 January 2013, Ms Gillies
approached the Applicant in the Applicant’s office and asked to meet with her in the
lunchroom.60 Mr Duffy was already in the lunchroom.61
[32] The Applicant and Ms Gillies both gave evidence about what was said during this
meeting. As with the earlier meeting, their accounts of the precise words used during the
meeting differ, but the substance of their recollections of the discussion is consistent.62 The
Applicant says that she was denied a support person at this meeting, by which she means that
as she did not receive notice of the meeting and she did not have an opportunity to arrange a
support person to attend.63 It is clear however that the Applicant did not request a support
person.64 Sometime after 4.30 pm on 15 January 2013 the Applicant made a note of the
meeting and provided a copy to Mr Tant by email.65 Having regard to the totality of the
evidence, I am satisfied that at the meeting on 15 January 2013:
The Applicant did not request a support person either before or during the meeting;
The allegation containing the substance of the telephone conversation with Mr Kelly
on 21 December 2012 was put to the Applicant;
Mr Kelly was identified as the employee who informed Ms Gillies of the substance
of the telephone conversation;
Ms Gillies told the Applicant that she had a written statement from Mr Kelly which
contained the “tell them nothing” allegation;
56 Exhibit R1 at [7]; Attachment BK1 to Exhibit R1
57 Exhibit R6 at [11]
58 Exhibit R6 at [11]
59 Exhibit R6 at [13]
60 Exhibit R6 at [14]; Exhibit A4 at [3]; Transcript PN81
61 Exhibit R6 at [14] - [15]
62 Exhibit R6 at [15]; Transcript PN81 - PN83
63 Transcript PN82
64 Transcript PN280
65 Exhibit A2; Transcript PN438 - PN446
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The Applicant denied making the statements as alleged;
Ms Gillies offered Mr Kelly’s note to the Applicant to read, but the Applicant did
not take up the opportunity;
Mr Duffy told the Applicant that the allegation was a serious matter and if proven
could have serious consequences for the Applicant’s employment;66
Mr Duffy asked the Applicant whether some other person had instructed the
Applicant to issue the ‘instructions’ to Mr Kelly, as this would be a mitigating
factor;67
Mr Duffy told the Applicant that she might wish to reconsider her denial, perhaps
overnight, however the Applicant said she did not need to reconsider as the
conversation as alleged by Mr Kelly did not happen.68
The Applicant sought to mislead the Respondent by her denial.
[33] I am also satisfied that the Applicant sought to mislead the Respondent when she sent
Mr Tant her file note of the conversation with Ms Gillies and Mr Duffy on 15 January 2013
which recorded, amongst other things, that she “did not speak or see Ben on 21st Dec . . .”
[34] After meeting with the Applicant, Mr Duffy and Ms Gillies met with Mr Kelly to
advise him of the Applicant’s denial. Mr Kelly said that “there were people there when I got
the call from her.”69 Statements from Mr Clark and Ms Gravina confirming Mr Kelly’s
contemporaneous communication to them were given to the Respondent on 16 January 2013
and 17 January 2013 respectively.70 These statements were not shown to the Applicant.
[35] Ms McKay was not contacted by the Respondent about the matter because Ms McKay
was on sick leave, the likely duration of which was then uncertain.71
Respondent’s dismissal of the Applicant.
[36] The Respondent’s Board met on 16 January 2013. During the meeting the Board
considered the allegation made against the Applicant. It was given copies of Mr Kelly’s
note72, the two file notes prepared by the Applicant73 and Mr Clark’s statement.74 The
Applicant was not aware that the Board was considering the matter and she was not given an
opportunity to address the Board. The Board determined that the Applicant’s employment
should be terminated with effect from 17 January 2013.75
[37] On 17 January 2013, Mr Duffy and Ms Gillies met with Mr Tant. They informed him
of the Board’s decision made the previous evening and requested him to prepare a termination
66 Exhibit R6 at [15]; Exhibit A2
67 Exhibit R6 at [15]; Exhibit A2
68 Exhibit R6 at [15]; Exhibit A2
69 Exhibit R6 at [16]
70 Exhibit R6 at [17] and [19] and Attachment HG3 thereto; Exhibit R3 and [6] - [7]; Exhibit R2 at [5] and Attachment SG1
thereto
71 Transcript PN803 - PN805
72 Attachment BK1 to Exhibit R1
73 Exhibits A1 and A2
74 Attachment JC1 to Exhibit R3
75 Exhibit R9
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of employment letter.76 Mr Tant was invited to attend a meeting with the Applicant to inform
her of the decision but he declined as he had not been involved in the decision.77
[38] Once the letter of termination78 had been prepared, Ms Gillies met with the Applicant
and told the Applicant that the Board had reviewed her actions of 21 December 2012 and that
after careful consideration, it had decided to end her employment.79 Ms Gillies gave the
termination letter to the Applicant and then gave her instructions about the return of company
property.80 The letter of termination advised the Applicant that her employment was
terminated with immediate effect and that she would be paid her entitlements and a further
four weeks’ pay. The reason for the termination, as set out in the letter, was that “you
unlawfully instructed another staff member to not cooperate with the Board and that this
constitutes serious misconduct.”81
Information about the Applicant’s conduct acquired after the dismissal
[39] The Respondent led some evidence and made submissions about matters relating to
the Applicant’s conduct during employment, which came to the Board’s attention after
17 January 2013. These matters concerned, amongst other things, unauthorised expenditure
on a redundancy payment to a former employee and failing to keep proper records of
grievances in order to meet one of the Applicant’s key performance indicators. For reasons
that will become apparent, I have found it unnecessary to make findings about these matters.
Protection from Unfair Dismissal
[40] An order for reinstatement or compensation may only be made if I am satisfied the
Applicant was, at the date of her dismissal, protected from unfair dismissal under the Act.
[41] Section 382 sets out the circumstances that must exist for the Applicant to be protected
from unfair dismissal:
“382 When a person is protected from unfair dismissal
A person is protected from unfair dismissal at a time if, at that time:
(a) the person is an employee who has completed a period of employment
with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the
employment;
76 Exhibit R6 at [20]
77 Exhibit R8 at [10]
78 Exhibit A3
79 Exhibit R6 at [22]
80 Exhibit R6 at [22]
81 Exhibit A3
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(iii) the sum of the person’s annual rate of earnings, and such other
amounts (if any) worked out in relation to the person in accordance with
the regulations, is less than the high income threshold.
Note: High income threshold indexed to $123,300 from 1 July 2012.”
[42] There is no dispute, and I am satisfied, the Applicant was, on 17 January 2013,
protected from unfair dismissal within the meaning of s.382.
Was the dismissal unfair?
[43] The Applicant’s dismissal will have been unfair if I am satisfied, on the evidence, that
all of the circumstances set out at s.385 of the Act existed. Section 385 provides:
“385 What is an unfair dismissal
A person has been unfairly dismissed if the 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.”
[44] There is no dispute that the Applicant was dismissed at the Respondent’s initiative
within the meaning of s.386 of the Act, that the Small Business Fair Dismissal Code did not
apply to the Respondent or that the dismissal of the Applicant was not for reasons of
redundancy and I am satisfied of these matters.
Harsh, unjust or unreasonable
[45] It remains therefore, for me to consider whether I am satisfied the Applicant’s
dismissal was harsh, unjust or unreasonable. The matters I must take into account when
assessing whether the dismissal was harsh, unjust or unreasonable are set out at s.387 of the
Act:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or
unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the
person’s capacity or conduct (including its effect on the safety and welfare of
other employees); and
[2013] FWC 3392
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(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason
related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a
support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—
whether the person had been warned about that unsatisfactory performance
before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be
likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource
management specialists or expertise in the enterprise would be likely to impact
on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
[46] The ambit of the conduct that may fall within the words ‘harsh, unjust or
unreasonable’ was explained in Byrne v Australian Airlines Ltd82 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.”
[47] I am obliged to consider each of these matters in reaching my conclusion and I do so
below.83
[48] The substance of the Applicant’s argument that her dismissal was harsh, unjust or
unreasonable is as follows:
There was no valid reason for the termination of her employment by the Respondent,
because she did not have a conversation with Mr Kelly as alleged;
The Respondent did not make clear to the Applicant:
whether there was a grievance or complaint against her;
whether an investigation was taking place;
which policy of the Respondent, the Applicant had allegedly breached.
82 [1995] HCA 24; (1995) 185 CLR 410 at 465
83 Sayer v Melsteel [2011] FWAFB 7498
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The Respondent denied the Applicant procedural fairness because:
it did not provide the Applicant with an opportunity to have a representative
or support person present during the meetings on 21 December 2012, 15 and
17 January 2013;
it did not provide notice of any of the meetings or the subject matter of the
meetings and therefore did not provide the Applicant with an opportunity to
prepare for those meetings;
the allegation was not put to the Applicant in writing, nor was she notified of
the allegation in advance of the meetings of 21 December 2012 and
15 January 2013.
Mr Kelly did not follow the grievance procedure of the Respondent and did not
report the incident of 21 December 2012 to Mr Tant, the Acting CEO;
The Respondent did not clearly notify the Applicant of the reason because the
allegations were not put to her in writing and the communication about them was
“done verbally”;
The Respondent did not follow its performance counselling policy which provides
for the termination of employment of an employee to be approved or endorsed by the
Executive and this did not occur. Further the Delegation of Authority policy requires
the termination of employment of an employee to be approved by the CEO and this
did not happen;
The Applicant was never instructed about what she could or could not say to staff or
members of the executive team;
The reason given for the termination of the Applicant’s employment was not ‘serious
misconduct’ and did not justify summary dismissal.
[49] The Respondent submits the dismissal was not harsh, unjust or unreasonable. It’s
argument is summarised below:
There was a valid reason related to the Applicant’s conduct, namely:
the Applicant’s conversation with Mr Kelly on 21 December 2012 was
inappropriate and amounted to serious misconduct; and
the Applicant’s failure to honestly answer questions on 21 December 2012
and 15 January 2013 from the Respondent about the conversation with
Mr Kelly.
The Applicant was told about the allegation made by Mr Kelly and given two
opportunities to comment on the allegation. On each occasion the Applicant chose to
deny the allegation. Each denial was dishonest. The Applicant compounded the
dishonesty by forwarding two file notes to Mr Tant, the acting CEO, each containing
the denial, and one suggesting that no contact at all occurred with Mr Kelly on
21 December 2012;
The seriousness of the Applicant’s conduct must be judged against the senior
position that she occupied in the Respondent’s organisation. Given this, it would
have been inappropriate to deal with the Applicant’s conduct by issuing a warning;
The Respondent conducted a fair process in the circumstances and gave the
Applicant an appropriate opportunity to answer the allegations. The Respondent’s
handing of the termination of employment must also be judged by taking into
account that the Respondent could not access its human resources function as its
Manager, People and Culture was the subject of the conduct under ‘investigation’;
[2013] FWC 3392
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The Applicant did not ask for a support person and given her position as Manager,
People and Culture, she would have been aware of her right to request that a support
person be present at meetings with the Respondent;
Given the Applicant’s conduct and dishonesty the Respondent was entitled to
conclude that the relationship of trust and confidence has broken down and to bring
the employment to an end.
After the termination of the Applicant’s employment the Respondent became aware
of further misconduct of the Applicant, upon which it is now entitled to rely to
justify the termination of the Applicant’s employment.
[50] I deal with the competing submissions in my consideration of each of the criteria at
s.387 of the Act below.
Valid reason - s.387(a)
[51] There must have been a valid reason for the dismissal of the Applicant related to the
Applicant’s capacity of conduct, although it need not be the reason given to the Applicant at
the time of the dismissal.84 The reason should be “sound, defensible and well founded”85 and
should not be “capricious, fanciful, spiteful or prejudiced.”86 Where, as in the present case, the
Respondent relies upon conduct of the Applicant to justify its decision to terminate her
employment, I must be satisfied that the conduct as alleged by the Respondent occurred.87 A
mere suspicion of conduct does not amount to a valid reason.88
[52] Earlier in this decision I concluded that I accept Mr Kelly’s version of events and
reject the Applicant’s oral evidence about the conversation between the Applicant and
Mr Kelly on 21 December 2012 and I outlined my reasons for doing so. It follows that I am
satisfied that on 21 December 2012 the Applicant telephoned Mr Kelly and during the
telephone discussion the Applicant told Mr Kelly that:
Beverley (Lee) and Helena (Gillies) were on the property asking questions about
employment contracts and other matters the detail of which Mr Kelly could not
recall;
She had spoken with Julie (McKay); and
Julie told her to call Ben (Kelly) straight away and let Ben know to tell them
nothing.89
[53] This conduct, engaged in by a senior member of the Respondent’s organisation,
occupying as she did the position of Manager, People and Culture, is doubtless misconduct
and a valid reason for dismissal. However as the Respondent summarily dismissed the
Applicant for ‘serious misconduct’, a finding that the conduct was not serious misconduct
may render a dismissal for valid reason, harsh. I will return to this issue later in these reasons.
84 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-378
85 Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373
86 Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373
87 King v Freshmore (Vic) Pty Ltd, Full Bench AIRC, 17 March 2000, (Print S4213)
88 Australia Meat Holdings Pty Ltd v McLauchlan (1998) IR 1
89 Exhibit R1 at [3] and attachment BK1 thereto
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[54] The Respondent also relies on the Applicant’s dishonesty during the course of the
investigation as a reason for dismissal. During oral submissions, Ms Dastan for the
Respondent put the argument this way:
“Where the question put to Ms Jones was in the form of telling Mr Kelly not to
cooperate or whether it was telling him not to talk is, in our submission, largely
irrelevant. The substance of the question was to ask Ms Jones whether she had said
anything to Mr Kelly to the effect that he ought not to provide information to the board
members. The obligation that Ms Jones then had was to respond to that question in an
informative manner due to her position as an executive officer of the company. In our
submission, it’s obvious. If Ms Jones had said to Mr Kelly, “You ought not talk to the
board,” then her response should have been to correct the questioner and indicate what
it is she did in fact say. A broad denial is both misleading and, in our view,
disingenuous.”90
[55] The Respondent further submitted that as the Applicant’s dishonesty struck at the heart
of the relationship of trust and confidence, the Respondent was entitled to conclude that that
relationship had broken down and to bring the employment to an end.
[56] Earlier in this decision I concluded that the Applicant sought to mislead the
Respondent by her denials at meetings with the Respondent on 21 December 2012 and
15 January 2013 and by her file notes sent to Mr Tant on 10 and 15 January 2013. The
Respondent was entitled to ask the questions that it did of the Applicant. The Applicant was,
in the circumstances, obliged to answer the questions honestly. I am satisfied that she did not.
[57] A failure by an employee to honestly answer reasonable questions put to the employee
by the employer about alleged workplace or work related conduct will be a valid reason for
dismissal if the failure to answer honestly destroys the relationship of trust and confidence
between the employer and employee.91
[58] The Applicant was given ample opportunity to give an honest response but chose not
to do so. The Applicant compounded the dishonesty through her file notes sent to Mr Tant.
The Applicant was a senior employee holding an important position in the organisation. The
Board was entitled to expect honesty from the Applicant. The Applicant should have
responded honestly, even though this may have placed her in a difficult position. In the
circumstances the Applicant’s dishonesty meant that the Respondent could not be confident
that the Applicant would be honest in the future. The important relationship of trust and
confidence between the Respondent and the Applicant was therefore destroyed. I am satisfied
that the Applicant’s dishonesty and its impact of the relationship of trust and confidence was a
valid reason for dismissal of the Applicant.
Notification of the valid reason - s.387(b)
[59] Notification of a valid reason for termination should be given to an employee
protected from unfair dismissal before the decision is made,92 in explicit terms93 and in plain
90 Transcript PN1105
91 Streeter v Telstra Corporation Ltd (2007-2008) 170 IR 1 at 11
92 Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41]
93 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at 151
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and clear terms.94 In Crozier v Palazzo Corporation Pty Ltd95 a Full Bench of the Australian
Industrial Relations Commission dealing with a similar provision of the Workplace Relations
Act 1996 stated the following:
“As a matter of logic procedural fairness would require that an employee be notified of
a valid reason for their termination before any decision is taken to terminate their
employment in order to provide them with an opportunity to respond to the reason
identified. Section 170CG(3)(b) and (c) would have very little (if any) practical effect
if it was sufficient to notify employees and give them an opportunity to respond after a
decision had been taken to terminate their employment. Much like shutting the stable
door after the horse has bolted.”96
[60] The requirement to notify of the reason together with the requirement to provide an
opportunity to respond to the reason in s.387(c), involves consideration of whether procedural
fairness was afforded the Applicant before her dismissal was effected.
[61] Satisfaction of the notification requirement will usually require a straightforward
factual inquiry to be made, namely: what was the Applicant told about the reason for the
dismissal, before the dismissal took place? As I have earlier concluded, at both the meetings
on 21 December 2012 and 15 January 2013 the substance of the allegation made by Mr Kelly
was clearly communicated to the Applicant. The Applicant’s own version of events and her
file notes given to Mr Tant confirm this. The termination of employment letter given to the
Applicant on 17 January 2013 confirms the reason. I am satisfied the Applicant was notified
of this valid reason.
[62] It is also clear from the evidence and accepted by the Respondent,97 that the Applicant
was not notified of the reasons related to her failure to honestly answer questions from the
Respondent, and I am so satisfied. However, it will likely have been clear to the Applicant, by
the act of terminating her employment, that the Respondent did not believe her denials of the
allegation.
Opportunity to respond - s.387(c)
[63] An employee protected from unfair dismissal should be given an opportunity to
respond to any reason for dismissal relating to the conduct or capacity of the person. The
consideration of whether and to what extent that opportunity was given is to be applied in a
common sense way to ensure the employee is treated fairly and should not be burdened with
formality.98
[64] The Applicant argued that she was not notified in writing of the allegations and was
not given notice of the meetings of 21 December 2012 or 15 January 2013, or the subject
matter of the meetings. I accept this to be the case. The Applicant suggests this affected her
capacity to be represented and to properly respond to the allegations. I disagree.
94 Previsic v Australian Quarantine Inspection Services Print Q3730
95 (2000) 98 IR 137
96 (2000) 98 IR 137 at 151
97 Transcript PN1168 - PN1186
98 RMIT v Asher (2010) 194 IR 1 at 14-15
[2013] FWC 3392
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[65] First, absent some express term under her employment contract, an applicable modern
award or enterprise agreement, there is no general right for an employee to be “represented”
in a meeting with an employer to discuss allegations of misconduct. The Applicant does not
allege such a term exists. The Respondent’s policy on performance management and
disciplinary procedure does not confer such a right.99
[66] Secondly, as I concluded earlier, at both the meetings on 21 December 2012 and
15 January 2013, the substance of the allegation made by Mr Kelly was clearly communicated
to the Applicant, and the Applicant denied the allegation on both occasions. At the meeting on
15 January 2013, the Applicant was given an opportunity to reconsider her response, perhaps
overnight, but declined to do so and said she did not need to reconsider because the
conversation as alleged by Mr Kelly did not happen.100 The Applicant’s own version of events
and her file notes given to Mr Tant confirm the fact that the Applicant was given
opportunities to respond and took those opportunities to deny the allegation. I am satisfied
that the Applicant was given an opportunity to respond to this valid reason.
[67] As the Applicant was not notified of the reasons that related to her failure to honestly
answer questions from the Respondent, it would be difficult to conclude that the Respondent
gave the Applicant an opportunity to respond to that reason. Nevertheless, as is clear from the
exchange reproduced from transcript below, the Respondent argues that the opportunity given
to the Applicant during the meeting on 15 January 2013 to reconsider her denial, was
implicitly such an opportunity:
“THE DEPUTY PRESIDENT: Of course. While you’re doing that and since I’ve
already interrupted you, I might raise a couple of other matters with you, if I may.
Ms Dastan, do you accept that your client did not notify Ms Jones that one of the
reasons that it was dismissing her was because she had been dishonest with them in the
conduct of their investigation? Unless there’s some evidence that that was orally
communicated to her, certainly in the letter of termination there's no indication of that -
- -
MS DASTAN: That’s right. However, it was communicated to her in her evidence.
The file note which she made and gave to Mr Tant, Mr Duffy had warned her to
reconsider her answer because this could lead to disciplinary process, including and up
to termination.
THE DEPUTY PRESIDENT: I do understand that, but as a reason for termination.
MS DASTAN: No.
THE DEPUTY PRESIDENT: Which is what is required.
MS DASTAN: Yes.
THE DEPUTY PRESIDENT: Whether the person was notified of that reason being
the valid reason. You’d have to accept, wouldn’t you, that Ms Jones wasn’t advised of
that?
99 See Exhibits A6 and A7
100 Exhibit R6 at [15]; Exhibit A2
[2013] FWC 3392
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MS DASTAN: No. That’s right.
THE DEPUTY PRESIDENT: Where I am required to take into account whether the
employee was given an opportunity to respond to any reason relating to the person’s
conduct or performance, even if I accept that in the course of the various discussions
that Ms Jones had with the board members she was given an opportunity to comment
about the instruction or conversation that she had with Mr Kelly, isn’t it the case that
she wasn’t given an opportunity to comment on the reason relied upon by the
employer that she had lied to the board? I accept that you say she was given an
opportunity the day before the dismissal was effected to reconsider her answer.
MS DASTAN: Yes.
THE DEPUTY PRESIDENT: But that, on one view, doesn’t go so far as to say,
“Well, we think that you’re lying to us. What do you say about that?” or, “We think
you’re lying to us and that’s a ground for dismissal.”
MS DASTAN: In Ms Gillies’ statement, she tried to give Mr Kelly’s written
statement. She did not take it and Ms Jones’s own evidence was that she felt that it
was a fait accompli, anyway; that they were out to get her and she didn’t feel like there
was any use in responding. My submission is that she felt she wouldn’t be given an
opportunity and didn’t want to respond, anyway. I make the point further that in any
event we rely on termination on common law grounds for dishonesty.
THE DEPUTY PRESIDENT: Yes, I accept that that’s relied upon.
MS DASTAN: Yes.
THE DEPUTY PRESIDENT: The point is that a factor I have to weigh up amongst all
the factors is whether or not she was notified of that reason and whether or not she was
given an opportunity respond to that reason which related to her conduct. It seems to
me that she certainly wasn’t notified of the dishonesty to the board point as a reason
for termination.
MS DASTAN: Yes.
THE DEPUTY PRESIDENT: And it’s probably the case that she wasn’t given an
opportunity to respond to that reason in that sense.
MS DASTAN: No, that’s right.
THE DEPUTY PRESIDENT: I accept that she was given an opportunity to reconsider
her position.
MS DASTAN: That’s right.
THE DEPUTY PRESIDENT: And implicit in that was that the board member,
Mr Duffy, was saying, “Well, we have a different view.” I accept that.
[2013] FWC 3392
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MS DASTAN: And implicit in that also was the evidence seemed to suggest that a
phone call may have occurred.
THE DEPUTY PRESIDENT: Yes.
MS DASTAN: She didn’t then take it upon herself to explain that a phone call had
been made. In fact she had not said that a phone call had been made until the
commencement of this hearing last Friday.
THE DEPUTY PRESIDENT: Yes.
MS DASTAN: The implication is that the board suspected that her version of events
may not have been correct and gave her the opportunity to correct that and, by not
doing so, she then committed a further lie.”101
[68] Whilst the proposition advanced by the Respondent is not without merit, I have great
difficulty accepting it in this case. In my view, as a valid reason must be communicated in
explicit terms102 and in plain and clear terms,103 so too must the opportunity to respond to that
reason. Logically one follows the other. A reason that is not clearly put does not clearly invite
a response. In circumstances that might very well lead to the termination of employment an
employee should not be left to read between the lines trying to discern whether in those
spaces lurks the opportunity to respond. The opportunity to respond must be clear and not left
to implication. I am satisfied that an opportunity to respond to this valid reason was not given.
In many cases, this will be a serious omission. However, as this reason is closely linked to the
allegation itself, and the investigation of the allegation, I do not regard the failure to give the
Applicant an opportunity to respond to this reason as rendering the Respondent’s dismissal of
the Applicant harsh, unjust or unreasonable.
Unreasonable refusal by the employer to allow a support person - s.387(d)
[69] If an employee protected from unfair dismissal has requested a support person be
present to assist in discussions relating to the dismissal, the employer should not unreasonably
refuse to allow that person to be present.
[70] The Applicant submits that she was not offered the opportunity to have a support
person present. This submission is put on two bases. First, the Respondent made no such
offer. Secondly, given the lack of notice of the meetings on 12 December 2012, 15 and
17 January 2013 and the subject matter of those meeting, the Applicant was effectively denied
the opportunity to have a support person present.
[71] It is clear from the plain language of s.387(d) that this consideration is directed to an
employer’s unreasonable refusal to allow a support person to be present. It is not concerned
with whether an employer offered the employee such an opportunity. In most cases, the
section will be engaged if the employee asks for a support person to be present and the
employer refuses the request.104 It may well be appropriate in some cases to consider the
101 Transcript PN1162 - PN1187
102 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at151
103 Previsic v Australian Quarantine Inspection Services Print Q3730
104 See also Explanatory Memorandum to the Fair Work Bill 2008 at [1542]
[2013] FWC 3392
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overall circumstances in which meetings to discuss an employee’s conduct and dismissal
occurred to properly determine whether there was an unreasonable refusal by the employer to
allow the employee to have a support person present. This is not such a case.
[72] The Applicant did not at any stage ask to have a support person present. The Applicant
was the Manager, People and Culture. She was responsible for the Respondent’s human
resources function and for maintaining its policy on performance management and
disciplinary procedure. That policy deals with the issue of a support person. The Applicant
was aware of her right to ask for a support person to be present. She did not ask for one.
Given the Applicant’s position and knowledge, the circumstances in which the meetings
occurred did not, in my view, impede her capacity to ask for a support person to be present. I
am satisfied that the Respondent did not refuse to allow the Applicant to have a support
person present at any of the meetings that occurred on 12 December 2012, 15 and 17 January
2013.
Warnings regarding unsatisfactory performance - s.387(e)
[73] If an employee protected from unfair dismissal is dismissed for the reason of
unsatisfactory performance, the employer should warn the employer about the unsatisfactory
performance before the dismissal. As the Applicant was dismissed for conduct rather than
performance reasons, this matter does not arise for consideration. To the extent that it is
relevant, it was not disputed, and I am satisfied that the Applicant was not given any previous
warning relating to either her performance or her conduct.
Impact of the size of the Respondent on procedures followed - s.387(f)
[74] The size of the Respondent’s enterprise may impact on the procedures followed by the
Respondent in effecting the dismissal. The Respondent is not a small business employer, nor a
‘small employer’ having regard to the size of its workforce. It had policies to deal with human
resources related matters.105 Although the Respondent did not refer to these policies in
inquiring into the allegation made by Mr Kelly or in effecting the Applicant’s dismissal, it
acted (with one exception) consistently with its policy on performance management and
discipline.
[75] In the circumstances, I am satisfied the size of the employer’s enterprise did not
impact on the procedures followed in effecting the dismissal or to the detriment of the
Applicant.
Absence of dedicated human resources management specialist/expertise on procedures
followed - s.387(g)
[76] The absence of dedicated human resource management or expertise in the
Respondent’s enterprise may have impacted on the procedures followed by the Respondent in
effecting the dismissal.
[77] The Respondent had a dedicated human resources function. Its difficulty was that the
person responsible for administering that function was the subject of the allegation and the
person to whom the Respondent’s procedures were to be applied. The CEO was also absent
105 See for example Exhibits A6 and A7
[2013] FWC 3392
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for the entire period. The Acting CEO was not consulted, but in evidence Mr Tant expressed
the view that, in his opinion based on his knowledge of the facts now, the termination of the
Applicant’s employment was warranted.106
[78] The Applicant did not, during any of the meetings, raise the procedural concerns she
now alleges occurred. As the Manager, People and Culture, she was better placed than most
employees to do so.
[79] I find the absence of any such management and expertise did impact on the procedures
followed by the Respondent in effecting the dismissal. No doubt a human resources
professional would have advised that the Respondent should give notice of the various
meetings and the general subject matter to be discussed at the meetings. This did not occur.
However, given the Applicant’s position and experience I do not regard this matter as
prejudicing the Applicant in any material way.
[80] No doubt also, had the Respondent had access to a human resources function, it would
have been advised to put the content of the two corroborating statements to the Applicant and
to seek a response. This might have caused the Applicant to admit the allegation. However by
this stage, the damage to the relationship of trust and confidence had been done. In any event,
the Applicant is now aware of the two statements, but maintains her denial. I therefore do not
regard this matter as prejudicing the Applicant in any material way.
Other relevant matters - s.387(h)
[81] Section 387(h) provides the Commission with broad scope to consider any other
matters it considers relevant. The following matters are relevant to the determination of
whether the dismissal of the Applicant was harsh, unjust or unreasonable:
(a) Respondent’s policy on performance management and discipline107
The Applicant submits that the Respondent did not adhere to its policy because it did
not offer the Applicant a support person. This seems correct. In contrast to s.387(d) of
the Act, the policy is couched in terms of an “opportunity of having a support person
present.”108 This suggests some obligation on the Respondent’s part to either offer to
an employee the opportunity to have a support person present, or to give notice of a
meeting or proposed discussion (and of the subject matter) so that an employee has the
opportunity to arrange for a support person to be present. This did not occur. I am
satisfied that the Respondent did not comply with its policy in this regard. However
given the Applicant’s position in the organisation and her familiarity with the policy,
the Applicant could have, but did not ask for a support person. The Applicant could
have, but did not point out to the Respondent its obligation under the policy.
The Respondent’s failure to comply in the circumstances did not render the dismissal
harsh, unjust or unreasonable.
106 Transcript PN890 - PN891
107 Exhibits A6 and A7
108 Exhibit A7, p3
[2013] FWC 3392
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(b) Summary dismissal
The Respondent summarily dismissed the Applicant for serious misconduct.
Relevantly, conduct will be ‘serious misconduct’ if it is such a serious breach of the
contract of employment that it is in effect a repudiation, so that the employer is no
longer bound to employ the employee.109 In other words, it involves conduct that is
inconsistent with the continuation of the contract of employment.
The Applicant instructed or at least encouraged another employee, Mr Kelly, not to
speak with particular Board members who were at the workplace on 21 December
2012. The Board members were entitled to be on site and were carrying out functions
assigned to them by the Board. The Applicant’s conduct was akin to encouraging
another employee to act dishonestly or to mislead members of the Board who had
every right to engage with and expect cooperation and assistance from that employee.
The Applicant was a senior member of the Respondent’s organisation and in a position
of trust. A person in the position of the Manager, People and Culture would or should
have known better. In my view, the conduct viewed in the circumstances of the
Applicant’s position and seniority, was inconsistent with the continuation her contract
of employment.
If I am wrong in that conclusion, then the subsequent dishonest denials by the
Applicant coupled with the earlier conduct involving Mr Kelly were together
inconsistent with the continuation of the Applicant’s contract of employment. I am
therefore satisfied that the Applicant engaged in serious misconduct and the
Respondent was justified in summarily dismissing the Applicant.
(c) Authority to dismiss
The Applicant submits that the Board did not have authority to terminate the
Applicant’s employment without prior approval by the CEO. This, it was submitted, is
what is required as a consequence of the Respondent’s Delegation Policy.110 It is not
in dispute that the Acting CEO did not approve the termination of the Applicant’s
employment. There are two answers to this submission. First, a delegation of power by
the Board to the CEO does not remove the Board’s power to itself exercise the power
of employment termination. Secondly, to the extent that the delegated power might
otherwise be exercised by the CEO, that delegation (along with many others) was
rescinded by resolution of the Board on 16 January 2013111, the day before the
termination of the Applicant’s employment was effected.
109 North v Television Corporation Ltd (1976) 11 ALR 599
110 Exhibit A5
111 Exhibit R9
[2013] FWC 3392
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Conclusion
[82] Having considered each of the matters specified in s.387, and taking into account the
all of the evidence and submissions before me, I am satisfied the dismissal of the Applicant
was not harsh, unjust or unreasonable. The application is dismissed.
DEPUTY PRESIDENT
Appearances:
R. Jones on her own behalf.
N. Dastan for Brite Services.
Hearing details:
2013.
Melbourne:
May 10, 17.
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