1
Fair Work Act 2009
s.604 - Appeal of decisions
Jacqueline Lumley
v
Bremick Pty Ltd Australia t/a Bremick Fasteners
(C2014/5516)
VICE PRESIDENT HATCHER
DEPUTY PRESIDENT GOSTENCNIK
COMMISSIONER RYAN SYDNEY, 5 DECEMBER 2014
Appeal against decision in transcript [PR553108] of Vice President Watson at Melbourne on
4 July 2014 in matter number U2014/5867.
Introduction and factual background
[1] This is an appeal, for which permission is required, against a decision of Vice
President Watson issued ex tempore on 4 July 2014 (Decision). In that decision, his Honour
dismissed an application by Ms Jacqueline Lumley for an unfair dismissal remedy under
s.394 of the Fair Work Act 2009 (the Act) in respect of her former employment with Bremick
Pty Ltd Australia t/a Bremick Fasteners (Bremick). A formal order dismissing the application
was issued on 14 July 2014.1
[2] Ms Lumley was dismissed by Bremick on 3 March 2014 arising from interpersonal
workplace conflict between her and another employee, Ms Nikki Cook, which had begun
about a year before. Ms Lumley and Ms Cook worked in a small office together, and the
breakdown in their relationship had a direct impact upon the efficient and appropriate
performance of their work functions including their relations with Bremick’s clients. Ms
Lumley made a formal complaint alleging bullying on the part of Ms Cook in July 2013, but
after an investigation the complaint was concluded to be unsubstantiated. Mr Jamieson, the
manager responsible for Ms Lumley and Ms Cook, conducted a mediation to try to resolve the
conflict between them after the completion of the bullying investigation. This led to Mr
Jamieson setting out work procedures which he expected Ms Lumley and Ms Cook to follow
in order to avoid any conflict. One of these procedures was that if either of the two employees
encountered any difficulty with the other, it was to be referred to Mr Jamieson in the first
instance for him to deal with rather than being taken up directly with the other employee. The
procedures were accompanied by written warnings to both Ms Lumley and Ms Cook that any
failure to comply might lead to disciplinary action being taken including dismissal.
1 PR553108
[2014] FWCFB 8278
DECISION
E AUSTRALIA FairWork Commission
[2014] FWCFB 8278
2
[3] This did not succeed in resolving the conflict. Further issues arose between them, and
Ms Lumley was given a further and verbal warning in August 2013. In September 2013, after
yet another workplace altercation between Ms Lumley and Ms Cook, Ms Lumley was issued
with a final written warning. The warning letter, dated 27 September 2013, stated among
other things that:
“This is a final warning letter. If significant improvement in your conduct is not
achieved your employment may be terminated. To reiterate, our expectation is that you
comply with the mediation work practices as set out at the last mediation meeting 5th
July 2013. Copy of these work practices attached.”
[4] On 26 February 2014 there was a further altercation between Ms Lumley and Ms
Cook. On Ms Cook’s own version of events, she was aggrieved because she believed Ms
Lumley had performed a work function which was within her (Ms Cook’s) province. Ms
Cook then directly challenged Ms Lumley about this, and an altercation followed which was
then reported by a third party to Mr Jamieson. Ms Cook subsequently also went to Mr
Jamieson and said that she thought she had no option but to resign, but Mr Jamieson
dissuaded her from this course.
[5] Mr Jamieson met with Ms Lumley about the incident on 3 March 2014. It is clear that
when the meeting commenced, Mr Jamieson had no intention of dismissing Ms Lumley
because of the incident. However, during the meeting, Ms Lumley said something which
altered this position. On Mr Jamieson’s evidence, when the matter was raised with her she
said “Well John what are you going to do about it, you should just go ahead and sack me
then”, and later in response to Mr Jamieson suggesting that the situation would eventually
lead to either her or Ms Cook losing her job, she said “Go ahead then sack me now, just sack
me now”, and later “Just do it, sack me”. Ms Lumley’s version was that Mr Jamieson said that
he had to sack someone today, to which her response was “go ahead and do it”, not expecting
that it would be her and not Ms Cook who would be dismissed.
[6] Mr Jamieson then called a witness into the meeting, and proceeded to dismiss Ms
Lumley with immediate effect. Bremick paid her one month’s salary in lieu of notice together
with her accrued leave entitlements. Ms Lumley was successful in obtaining new employment
within a few days, albeit at a somewhat lower rate of pay.
The Decision
[7] In the Decision his Honour summarised the facts of the matter in a manner broadly
consistent with our summary above. His Honour then deal with the matters required to be
taken into account under s.387 of the Act. In relation to the question of whether there was a
valid reason for the dismissal, the conclusion was as follows:
“In my view, the reason for the dismissal was a valid reason and was soundly based on
the conduct of Ms Lumley. The interpersonal relationships and the tension between the
two employees and the comments they made to each other, if they were isolated one-
off events, would not warrant termination of employment. However, as there was a
course of conduct, repeated conduct, of a similar nature that arose from the friction
[2014] FWCFB 8278
3
between them, and clearly involved inappropriate conduct by Ms Lumley towards Ms
Cook, in my view there was a valid reason for the dismissal.”2
[8] The other matters in s.387 were dealt with in the Decision, with his Honour finding
that Ms Lumley had been afforded procedural fairness. In relation to s.387(h), and the overall
question of whether the dismissal was harsh, unjust or unreasonable, the conclusions were as
follows:
“The allegations of harshness go to the work environment, allegations of bullying, an
allegation that the decision was made in part because of allegations of bullying, that
the work environment was not adequately established such that it complied with the
standards of health and safety, that there was no procedural fairness in relation to the
matter, and in an overall sense that given that there was likely to be fault in the case of
more than one person, that termination of employment was not the appropriate remedy
to take in relation to the situation which had developed at the workplace.
These submissions and the overall submission raises the issue of whether the reason
for termination, which I found to be a valid reason, is nevertheless sufficient to
terminate the employment in all circumstances of the case. In my view, it was open to
the employer to take the decision to terminate Ms Lumley's employment because of
the view that Mr Jamieson took that the interpersonal situation was not improving as
he had hoped and which his efforts were directed to achieving, and appeared to be
likely to get worse. He was also particularly concerned that there appeared to be
problems when he was absent from the office and the duty of his role required him to
be absent from the office on a regular basis.
I do not consider that the decision to terminate Ms Lumley's employment was
disproportionate to the situation which Mr Jamieson faced. I considered him to be
balanced in his evidence, giving due credit to Ms Lumley's work performance, but
expressing significant frustration that the interpersonal relationships had deteriorated
to the extent that something needed to be done for the benefit of the business. It is
clear he found this to be an unfortunate position, but one which required him to take
appropriate action. In all of the circumstances, I do not consider that the termination of
employment was harsh, unjust, or unreasonable. In the light of that conclusion, I
dismiss the application.”3
[9] It may be noted that the conclusions above were based, at least in part, on an
acceptance of the evidence of Mr Jamieson.
Appellant’s submissions
[10] The appellant raised a large range of propositions in her appeal notice and in the
written and oral submissions, many of which were not focused upon the demonstration of
error in the Decision. The principal propositions raised appear to us to be as follows:
2 PN 447
3 PNs 453-455
[2014] FWCFB 8278
4
Ms Cook was the person at fault in the conflict between her and Ms Lumley, and
her conduct amounted to persistent bullying behaviour. This bullying had caused
distress and illness to Ms Lumley.
Mr Jamieson was at fault for not recognising that Ms Cook was engaged in
bullying behaviour towards Ms Lumley.
There was no fault on Ms Lumley’s part and her work performance was and had
always been considered to be of a high standard.
For the above reasons, there was no valid reason for Ms Lumley’s dismissal, and
her dismissal was unfair. The Decision was in error because findings to this effect
were not made.
Vice President Watson failed to afford Ms Lumley procedural fairness at the
determinative conference, in that her evidence was “cut short”, and he had
indicated a predisposition against her case from commencement of the conference.
[11] In relation to the requirement for permission to appeal, it was submitted that the issue
of allegation of bullying on the part of Ms Cook attracted the public interest, given that
Parliament had recently legislated on the subject of workplace bullying and had thus indicated
that it was regarded as a subject of public importance.
Consideration
[12] Under s.400(1) of the Act, we are required not to grant permission to appeal unless we
consider it to be in the public interest to do so. This is a stringent test.4 Additionally, s.400(2)
requires that an appeal from a decision concerning an application for an unfair dismissal
remedy on a question of fact must be made on the ground that the decision involved a
significant error of fact.
[13] We are not satisfied that the appellant has demonstrated that it is in the public interest
that permission to appeal be granted. We do not consider that the appellant has demonstrated
any arguable case of error in the Decision under appeal. We cannot identify any error of fact,
let alone a significant error of fact. The appellant’s case can fairly be characterised as a plea
for a different result to pertain rather than a genuine attempt to identify error in the Decision.
We consider that the conclusions in the Decision that there was a valid reason for the
dismissal, that Ms Lumley was afforded procedural fairness, and that her dismissal was not
harsh, unjust or unreasonable were all reasonably available on the evidence. Further, they are
conclusions with which we agree.
[14] It is reasonably apparent that the appellant’s sense of grievance concerning the
Decision was to a substantial degree based upon the perception that she had been found to be
the one at fault in the conflict with Ms Cook and that this formed the valid reason for her
dismissal. However we consider this to be a misconception of the way in which Ms Lumley’s
case was decided. Although Bremick ran its case at first instance on the basis that it was Ms
Lumley and not Ms Cook who was primarily responsible for the conflict, his Honour did not
4 Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54 at [43] per Buchanan J, with whom Marshall and
Cowdroy JJ agreed.
[2014] FWCFB 8278
5
make any finding to that effect. Both the Decision, and the evidence, made clear that the valid
reason for the dismissal was not Ms Lumley’s conduct as such, but rather the existence of an
interpersonal conflict in a small workplace which had reached the point where it had become
incapable of any resolution and was affecting the performance of work and Bremick’s
relationships with its customers.
[15] This proposition is best illustrated by reference to the immediate circumstances which
caused the dismissal. The incident which occurred on 26 February 2014 was not, on the
evidence, Ms Lumley’s fault, nor was it found to be her fault in the Decision. In fact the
evidence tends to indicate that Ms Cook was significantly at fault in that, being aggrieved by
something on Ms Lumley’s part, she chose to challenge Ms Lumley about it directly rather
than referring it to Mr Jamieson for resolution in accordance with the work procedures
established by Mr Jamieson. It is further clear that Mr Jamieson himself did not regard
anything in that incident as justifying dismissal. What caused the dismissal was Mr
Jamieson’s realisation in his discussion with Ms Lumley on 3 March 2014 that the conflict
between Ms Lumley and Ms Cook not only remained unresolved but was likely to worsen and
cause continuing problems in the workplace. Mr Jamieson’s evidence, which his Honour
accepted, was that he was brought to this realisation by Ms Lumley goading him to dismiss
her. Even Ms Lumley’s version of this meeting involved an effective acknowledgement on
her part that only a dismissal of either her or Ms Cook could resolve the problem. Although
Mr Jamieson perhaps acted unwisely in acting to dismiss Ms Lumley in the heat of the
moment, nonetheless the continuance of the conflict between Ms Lumley and Ms Cook left
him in an impossible position, irrespective of who was at fault. The dismissal of Ms Lumley
was a valid response to that situation. The fact that the situation might equally have been
resolved by the dismissal of Ms Cook could not by itself render Ms Lumley’s dismissal
unfair.
[16] The finding in the Decision that Ms Lumley had been involved in inappropriate
conduct towards Ms Cook is, we consider, to be understood as a reference to the fact that she,
like Ms Cook, had previously been warned in relation to her involvement in the interpersonal
conflict between them. It is not to be read as an attribution of sole responsibility for the
conflict, since his Honour made it clear elsewhere in the Decision that this was a situation in
which both Ms Lumley and Ms Cook were at fault, including by reference to Mr Jamieson’s
conclusion (upon which reliance was placed) that “both Ms Lumley and Ms Cook were at
fault to an extent in the way in which they related to each other”.5
[17] It is clear that the appellant would have preferred for there to have been a finding that
Ms Cook was principally at fault in the conflict. However that was never on the cards
because, firstly, the evidence adduced by both sides was far too superficial such as to permit
the kind of micro-analysis of events that would have been necessary to make a finding of that
nature, and secondly, the making of a finding attributing primary responsibility for the
conflict was simply not required in order to determine whether there was a valid reason for
the dismissal and whether the dismissal was unfair, for the reasons we have explained.
[18] We reject the submission that his Honour denied Ms Lumley procedural fairness at the
determinative conference. The appellant pointed to a passage in the transcript where, shortly
after the commencement of the conference, his Honour pointed out that Ms Lumley had to
establish that the termination was harsh, unjust or unreasonable and that this was contested by
5 PN 445
[2014] FWCFB 8278
6
Bremick.6 Those observations were made in response to a proposition advanced on behalf of
Ms Lumley that the only thing that needed to be decided was whether any compensation
should be awarded.7 His Honour’s remarks in that respect were unremarkable and represented
appropriate guidance to a litigant who was not legally represented. The appellant further
pointed to the fact that, when Ms Lumley had begun to give evidence and her representative
had proceeded to adduce from her in evidence-in-chief the whole history of the matter, his
Honour gave a reminder that the parties had been directed to and had filed witness statements,
and that it was not necessary or appropriate in those circumstances to “go over the material
and give further evidence”.8 This again was unremarkable and in accordance with the
procedures usually adopted by the Commission in unfair dismissal cases. Ms Lumley was not
inappropriately “cut short”, and in any event we note that his Honour invited Ms Lumley’s
representative to ask “anything of a critical nature that you wish to ask this witness” - an
invitation which was not taken up.9
[19] The fact that Ms Lumley has made the allegation that she was bullied by Ms Cook is
not sufficient to attract the public interest, given that as earlier stated there was simply
insufficient evidence to support a finding of that nature being made.
Conclusion
[20] Permission to appeal is refused.
VICE PRESIDENT
Appearances:
T. Pumpa representative for J. Lumley
S. Williams and E. Grant from Ai Group on behalf of Bremick Pty Ltd Australia t/a Bremick
Fasteners
Hearing details:
2014.
Melbourne:
16 October.
Printed by authority of the Commonwealth Government Printer
Price code C, PR557994
6 PNs 8, 10
7 PN 7
8 PNs 52, 54
9 PNs 54-55
OF THE FAIR WORK MISSION THE
