1
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Rebecca Meyers
v
2evolve Pty Limited
(U2015/12237)
COMMISSIONER CAMBRIDGE SYDNEY, 13 MAY 2016
Application for unfair dismissal remedy - alleged serious misconduct involving disclosure of
confidential information - conduct of applicant not serious misconduct - no valid reason for
dismissal - significant procedural deficiencies - dismissal harsh, unjust and unreasonable -
compensation Ordered.
[1] This matter involves an application for unfair dismissal remedy made pursuant to
section 394 of the Fair Work Act 2009 (the Act). The application was lodged at Sydney on 11
October 2015. The application was made by Rebecca Meyers (the applicant) and the
respondent employer is 2evolve Pty Limited (ACN: 081 031 290) (the employer or 2evolve).
[2] The application indicated that the date that the applicant’s dismissal took effect was 30
September 2015. Consequently, the application was made within the 21 day time limit
prescribed by subsection 394 (2) of the Act.
[3] The matter was not resolved at conciliation, and it has proceeded to arbitration before
the Fair Work Commission (the Commission) in a Hearing conducted in Sydney on 29
January 2016.
[4] Prior to the Hearing, the Parties filed written submissions in respect to the question of
whether the Commission should, pursuant to s. 596 of the Act, grant permission for the
employer to be represented by lawyers or paid agents (the representation question). The
Commission examined and considered the respective submissions made on the representation
question. On 27 January 2016, the Commission advised the Parties that permission for the
employer to be represented by lawyers or paid agents had been refused.
[5] In this instance, the representation question was determined primarily upon that aspect
of s. 596 of the Act going to the issue of fairness between the Parties. In particular, the
Commission determined that an imbalance of the nature contemplated in the (incorrectly
named) Judgement of Warrell v Walton1 (paragraph 25 in particular), would arise if the
employer was permitted legal representation while the applicant represented herself.
[2016] FWC 2921
DECISION
E AUSTRALIA FairWork Commission
[2016] FWC 2921
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[6] At the Hearing, the applicant represented herself and provided evidence as the only
witness in support of the claim. The employer was represented by its Director, Mr C Powell.
Mr Powell called a total of three witnesses who provided evidence on behalf of the employer.
Factual Background
[7] The applicant had been employed for about four years and eight months. The
applicant was initially engaged in a position described as a “Telefundraiser” and she was
progressively promoted through the positions of; “Telefundraising Team Leader”, “Data
Support and Training Officer”, and eventually, at the time of her dismissal, the applicant was
engaged in a position described as “Operations Coordinator”.
[8] The employer conducts a business as fundraising consultants, specialising in
fundraising for charitable organisations. As part of the activities associated with the
employer’s fundraising consultancy role, it operates a Call Centre for telefundraising
purposes. The employer has approximately 150 to 180 employees in total.
[9] Employees engaged in the Call Centre as telefundraisers work in teams which have
appointed Team Leaders. At the time of the applicant’s dismissal, the Call Centre had 11
Team Leaders who reported to a Call Centre Manager. In September 2015, a number of Team
Leaders raised complaint about the conduct of the Call Centre Manager. The employer
investigated these complaints, interviewed the Call Centre Manager, and then decided to
dismiss him for serious misconduct. The Call Centre Manager was dismissed on Friday, 18
September 2015. At around this time, several other Call Centre staff were also dismissed from
employment.
[10] After the dismissal of the Call Centre Manager, the employer’s Managing Director,
Ms Jenkins, moved into the role of Call Centre Manager. On 28 September 2015, one of the
Team Leaders, Mr Majeedy, told Ms Jenkins that he and the other Team Leaders that had
made complaints about the Call Centre Manager (the complainant Team Leaders), were
“being picked on by other staff and isolated.”2 Mr Majeedy said that he and the three others
that had come forward with complaints about the Call Centre Manager were regretting their
actions. Mr Majeedy told Ms Jenkins that another Team Leader, Ms Clarke, who had not
made a complaint about the Call Centre Manager, had been told the identities of the
complainant Team Leaders and that that information had come from “HR”.
[11] Ms Jenkins was concerned that the identities of the complainant Team Leaders had
been disclosed in circumstances where the Team Leaders were encouraged to come forward
on the basis that the employer would not reveal their identities. The identities of the four
complainant Team Leaders was seen by the employer to be a matter of strict confidentiality.
[12] On the evening of 28 September 2015, Ms Jenkins called Ms Clarke into her office
and questioned her about her knowledge of the identities of the four complainant Team
Leaders. Ms Clarke confirmed that she knew the identities of the complainant Team Leaders,
and upon further questioning, she said that she had been provided with this information by
another employee, Ms Salinas. Further, Ms Clarke told Ms Jenkins that when she asked Ms
Salinas how she knew of the identities of the complainant Team Leaders, she said that the
applicant had disclosed that information to her, (Salinas). In addition, Ms Clarke admitted to
Ms Jenkins that she had told other employees of the identities of the complainant Team
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Leaders. Ms Jenkins gave Ms Clarke a verbal warning in respect to her dissemination of the
identities of the complainant Team Leaders.
[13] Later on the evening of 28 September, Ms Jenkins discussed her concerns about the
disclosure of confidential information with the employer’s General Manager (Operations), Ms
Sarkissian. Ms Jenkins told Ms Sarkissian that she had spoken with Ms Clarke, who had
found out the identities of the complainant Team Leaders from Ms Salinas, who had been told
by the applicant. Ms Jenkins and Ms Sarkissian agreed that the matter needed to be pursued
further on the following day.
[14] On the following morning, 29 September, Ms Jenkins met with Ms Salinas and
questioned her about the source of her knowledge of the identities of the complainant Team
Leaders. Ms Salinas confirmed that she knew the identities of the complainant Team Leaders,
but she said that she did not get that information from the applicant, but rather from another
employee, Mr Blakeman. Mr Blakeman had been dismissed from employment at around the
same time as the Call Centre Manager. Ms Jenkins gave Ms Salinas a verbal warning in
respect to her dissemination of the identities of the complainant Team Leaders.
[15] At about 10 am on 29 September, Ms Jenkins called the applicant into a meeting. The
applicant was not advised of the purpose of the meeting, which was also attended by Ms
Sarkissian. Ms Sarkissian invited the applicant to indicate if she had disclosed anything of a
confidential HR nature. The applicant responded with mention of Christmas party
arrangements, performance concerns about the receptionists, confirmation that incorrect call
outcomes represented the basis for an employee’s dismissal, and that she had been pursued
about details of a particular employee’s redundancy package. During the meeting the
disclosure of the identities of the complainant Team Leaders was traversed and the applicant
denied that she had revealed that information.
[16] The meeting between the three women became difficult and tense. The employer
asserted that the identities of the complainant Team Leaders was confidential information
known only by three individuals, namely, themselves. Consequently, the employer pressed
the applicant as being the only potential source of the disclosure of the confidential
information. The applicant maintained that she had not disclosed the information, and that
each of the complainant Team Leaders also knew the identity of at least themselves, as an
individual complainant. The meeting concluded with the employer suspending the applicant
from duty on pay, confiscating her notepad and pen, and requiring her to attend work on the
following day for a further meeting at 9 am.
[17] After the applicant had been suspended from work, Ms Jenkins initiated discussions
with three of the four complainant Team Leaders (the fourth had apparently resigned in the
intervening period). The three remaining complainant Team Leaders told Ms Jenkins that they
had not revealed their identity to any other employees. Ms Jenkins and Ms Sarkissian
discussed the matter further. They concluded that the applicant was responsible for disclosing
confidential information including the identities of the four complainant Team Leaders, and
further, they held serious concern regarding the other disclosures that the applicant had
volunteered during the first part of the meeting held earlier that day.
[18] At approximately 9 am on the following day, 30 September 2015, the applicant
attended a second meeting with Ms Jenkins and Ms Sarkissian. The applicant was asked if she
wanted to make any further comment about the issues that had led to her suspension from
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duty on the previous day. The applicant said that she stood by everything she had said on the
previous day. The employer then advised the applicant that it believed that it had lost trust and
confidence in the applicant, and her employment was summarily terminated due to gross
misconduct. The applicant requested that she be provided with the details of the reason for her
dismissal, and the employer confirmed that it would subsequently provide the reasons for
dismissal in writing.
[19] In accordance with her summary termination, the applicant was not paid in respect of
any notice period, nor did she subsequently receive any written advice or other information
which provided indication of the reasons for her summary dismissal.
[20] On 9 November 2015, the applicant obtained alternative employment. The alternative
employment has provided lower remuneration than that provided to the applicant in
employment with 2evolve.
The Case for the Applicant
[21] The applicant represented herself at the Hearing and she made oral submissions in
amplification of a written outline of submissions.
[22] The submissions made by the applicant referred to the various factors set out in
paragraphs (a) to (h) of s. 387 of the Act. The applicant submitted that there was no valid
reason for the termination of her employment, and she was never given particulars of the
reason for dismissal.
[23] The applicant submitted that the evidence established that she had been subjected to a
gross denial of procedural fairness in relation to her dismissal from employment. The
applicant said that she had been called into the meeting with the employer on 29 September
with no idea about the purpose of the meeting. The applicant described the arrangements for
the meeting on 29 September as the employer’s deliberate, absolute ambush.
[24] It was further submitted by the applicant that the manner in which the meeting was
arranged ensured that the applicant had no opportunity to bring a support person, and without
any particularisation of the allegations that the employer had developed, she was unable to
provide responses in any meaningful way. The applicant further complained that during the
meeting no proper notes or minutes were taken, and the employer even took her notepad and
pen at the conclusion of the meeting.
[25] The applicant also submitted that the absence of a valid reason for dismissal was
reflected by her having to ask, at least three times, for the reason for her dismissal, and then,
in the absence of even an act of courtesy, she has never been provided with a termination
letter explaining why she had been dismissed. The applicant said that the proposition that she
had been dismissed for disclosing confidential HR information, without actually specifying
the exact actions that constituted the alleged misconduct, represented an entirely insufficient
and unacceptable basis for dismissal.
[26] In further submissions, the applicant repeated her firm denial that she had not
disclosed any confidential information as had been suggested by the employer. The applicant
said that she had offered suggestions about matters that may have represented inappropriate
disclosures, such as the Christmas party arrangements, or dissatisfaction with the performance
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of the receptionists. However, the applicant said these were matters where she believed that
she had not done anything wrong, but had arisen during her attempts to satisfy the non-
specific inquiries of the employer.
[27] The applicant submitted that in the absence of any particulars of the allegations, she
had been unable to provide specific responses. The applicant submitted that the employer had
failed to provide any semblance of natural justice or procedural fairness, and the subsequent
termination of an employee with an impeccable work record was harsh and unfair. The
applicant sought monetary compensation as remedy for her unfair dismissal.
The Case for the Employer
[28] The employer was represented by Mr Powell, who relied upon a written outline of
submissions which he supplemented by further oral submissions.
[29] Mr Powell submitted that the employer genuinely believed that the applicant was fully
aware of the confidential nature of her role and the trust that the employer vested in her in this
position. Mr Powell said that it was clear that the applicant demonstrated a willingness to
disclose confidential information in a manner which was inconsistent with her important HR
role. According to the submissions made by Mr Powell, the applicant’s misconduct posed a
risk to the employer’s business, and to the health and safety of its employees.
[30] In further submissions, Mr Powell said that the employer rejected the applicant’s
version of the meetings that were held on 29 and 30 September 2015. Mr Powell said that the
first meeting held on 29 September was investigatory in nature, and as such would not
ordinarily contemplate the issue of the presence of a support person. Mr Powell
acknowledged that the employer did not offer the applicant a support person but that was
because of the investigatory nature of the meeting. Further, Mr Powell stressed that at no time
did the employer refuse a support person, but as the applicant and her partner were
knowledgeable in employment related matters, she would have been well aware of her rights
to have a support person if requested.
[31] Mr Powell also submitted that the termination of the applicant’s employment was the
only appropriate response given her gross misconduct involving the disclosure of confidential
information. It was submitted by Mr Powell that the employer had lost trust and confidence in
the applicant, and her demonstrated pattern of reckless disregard for the impact of her actions
and her negligent inactions represented a risk to health and safety.
[32] The submissions made by Mr Powell also asserted that the employer’s position was
that procedural fairness was provided to the applicant at all times. Mr Powell said that the
applicant had been provided with sufficient particulars verbally which enabled her to respond.
Mr Powell conceded that there was an omission in not sending the written letter of dismissal
as had been indicated. However, according to Mr Powell, this did not mean that the applicant
was not provided with the reasons for her dismissal which occurred verbally during the
meeting held on 30 September 2015.
[33] Further, according to the submissions made by Mr Powell, the applicant had not made
her case with respect to unfair dismissal. Mr Powell submitted that the applicant had not
established that her dismissal contained the elements of being harsh, unjust and unreasonable.
Mr Powell submitted that the applicant had instead focused on issues which he said were
[2016] FWC 2921
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independent or irrelevant to procedural fairness. The employer submitted that the claim for
unfair dismissal should be dismissed.
Consideration
[34] Section 385 of the Act stipulates that the Commission must be satisfied that 4
cumulative elements are met in order to establish an unfair dismissal. These elements are:
(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.
[35] In this instance, there was no dispute that the matter was confined to a determination
of that element contained in subsection 385 (b) of the Act, specifically whether the dismissal
of the applicant was harsh, unjust or unreasonable. Section 387 of the Act contains criteria
that the Commission must take into account in any determination of whether a dismissal is
harsh, unjust or unreasonable. These criteria are:
(a) whether there was a valid reason for the dismissal related to the person’s capacity
or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to
the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support
person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the
person had been warned about that unsatisfactory performance before the dismissal;
and
(f) the degree to which the size of the employer’s enterprise would be likely to impact
on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management
specialists or expertise in the enterprise would be likely to impact on the procedures
followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.
387 (a) - Valid reason for the dismissal related to capacity or conduct
[36] The reason for dismissal of the applicant was not committed to writing, but instead
was conveyed verbally during the termination meeting held on 30 September 2015, as being
gross misconduct involving the disclosure of confidential HR information.
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[37] Notwithstanding the inadequate specification of the stated reason for dismissal, the
Commission is required to examine the evidence presented so as to ascertain whether valid
reason existed to justify the dismissal, albeit not properly stated by the employer with
sufficient specificity. Therefore, the Commission has been required to “go behind” the flimsy
description stated by the employer as the reason for dismissal, so as to determine whether the
conduct (or capacity) of the applicant represented valid reason for her dismissal.
[38] The stated reason for dismissal involving disclosure of confidential HR information
appeared to encompass five particular events. The most notable event involved the disclosure
of the identities of the complainant Team Leaders. That particular event was the matter that
prompted the meeting with the applicant held on 29 September 2015. During that meeting, in
response to broad prompting by the employer, the applicant offered suggestions of four
incidents involving disclosure, or potential disclosure, of confidential information. These
incidents included; the Christmas party details; performance complaint about the
receptionists; confirmation that incorrect call outcomes represented the basis for an
employee’s dismissal; and that she had been pursued about details of a particular employee’s
redundancy package. In addition, although not a matter that might be comprehended by the
general description of disclosure of confidential HR information, there was the issue
involving the applicant not further acting upon a rumour that the Call Centre Manager was
supplying drugs to other employees, and otherwise acting inappropriately with employees
during after-hours drinks at a local hotel.
The Disclosure of the Identity of the Complainant Team Leaders
[39] The evidence provided by Ms Jenkins established that the event which involved the
disclosure of the identities of the complainant Team Leaders was not of itself, a matter that
the employer considered to be of sufficient severity or nature to have provided justification
for dismissal. Ms Jenkins described this particular incident as “…one trip-up [which] wasn’t
the end of the world”3. Consequently, it appeared that the employer considered that a
combination of the various incidents of alleged disclosure of confidential HR information,
when coupled with the issue regarding the applicant not further acting upon the earlier rumour
regarding the inappropriate activities of the Call Centre Manager, constituted the serious
misconduct for which the applicant was summarily dismissed.
[40] A balanced and objective evaluation of the evidence regarding the incident which
involved the disclosure of the identities of the complainant Team Leaders, does not provide
adequate foundation for a finding to support the employer’s conclusion that the applicant was
the source of the disclosure of that information. The applicant presented as a credible and
believable witness, and it appeared that the employer adopted a convenient assumption that
the applicant, believed to be one of only three people with direct knowledge of the identities
of the complainant Team Leaders, was the only individual who could have divulged the
information. This assumption has been strongly discredited by a number of important factors
which appeared to escape proper consideration by the employer.
[41] As the applicant identified at an early stage, after she had been able to identify the
issue that the employer was attempting to “tease out” during the meeting held on 29
September, each of the complainant Team Leaders also knew that each of them was coming
forward with a complaint. The evidence established that the four complainant Team Leaders
were identified to each other, so that all four knew who the other three were. This is reflected
by the words that were attributed to Mr Majeedy when he was questioned by Ms Jenkins on
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28 September, wherein he was alleged to have said; “We’re being picked on…” and “No one
is talking to us…” and “We’re regretting coming forward…”4[emphasis added].
[42] Consequently, all four of the complainant Team Leaders also knew the identities of all
four individual complainants, and understandably they communicated with each other about
some of the difficulties which appeared to emerge following the dismissal of the Call Centre
Manager. Ms Jenkins questioned three of the four complainant Team Leaders as to whether
they had revealed their own identity, and each quite understandably rejected the proposition
that they would have identified themselves. However, the employer appeared to fail to
contemplate that any one of the complainant Team Leaders may have, even inadvertently,
revealed the identity of one or more of the other three complainant Team Leaders.
[43] It is also relevant to recognise that Ms Clarke gave evidence that Ms Salinas provided
the names of only three of the four complainant Team Leaders during their lunchtime meeting
at the Rose hotel on Sunday, 20 September 2015. Ms Clarke was questioned about the
inconsistency between her statement, which named only three of the four complainant Team
Leaders, and the statement of Ms Jenkins, which asserted that Ms Clarke had identified the
names of all four complainant Team Leaders. Ms Clarke provided very vague and
unconvincing evidence, particularly in respect to this obvious and important inconsistency.
[44] The details of the conversation that occurred between Ms Clarke and Ms Salinas at the
Rose hotel on Sunday, 20 September 2015, was vitally important evidence because Ms
Salinas allegedly nominated the applicant as the source of information regarding the identities
of three, but apparently not all four, of the complainant Team Leaders. Later, when
questioned about the source of her knowledge, Ms Salinas denied that it was the applicant and
instead said that the information came from Mr Blakeman. The applicant knew the identities
of all four of the complainant Team Leaders, and it would be illogical and unlikely that she
would disclose the names of only three of the four individuals to Ms Salinas.
[45] The important evidence about the conversation between Ms Clarke and Ms Salinas at
the Rose hotel on Sunday, 20 September 2015, was not assisted by the absence of any direct
evidence from Ms Salinas. Ms Salinas had flatly denied to Ms Jenkins that the source of her
information was the applicant. However, the employer decided that Ms Salinas must have
been deliberately untruthful when making that denial.
[46] The Commission raised concern during the Hearing about the absence of any direct
evidence from Ms Salinas. Somewhat regrettably, it appeared that the employer
acknowledged that the conflict in the evidence between what Ms Clarke said that Ms Salinas
had said to her on Sunday, 20 September, and what Ms Salinas subsequently denied, was not
resolved at all by the employer.5 Unfortunately, the employer proceeded to investigate the
applicant upon an entirely unsound basis. The employer adopted an assertion which arose
from an unresolved conflict in the conversation at the Rose hotel between Ms Clarke and Ms
Salinas, based, without proper foundation, upon the version of that conversation provided by
Ms Clarke.
[47] Further, the Commission was clearly not assisted by the absence of Ms Salinas as a
witness. The evidence that would have potentially been provided by Ms Salinas would have
been important in resolving the significant conflict that arose regarding the identity of the
source of the information that she conveyed to Ms Clarke during their lunch on Sunday, 20
September 2015. After careful consideration, I have determined that it would have been
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reasonable, logical and predictable for the employer to have called Ms Salinas as a witness,
and that the failure to do so has, in the circumstances, provided for the Commission to draw
inferences in accordance with the principles established in the case of Jones v Dunkel,6 that
the evidence that would have been provided by Ms Salinas was likely to have been adverse to
the employer’s case.
[48] Further doubt about the applicant being the source of the information that Ms Salinas
conveyed to Ms Clarke on Sunday, 20 September can be identified from the timing of the
relevant events. The Call Centre Manager was dismissed on Friday, 18 September, and if the
applicant had been the source of the information regarding the identities of the (three)
complainant Team Leaders, the applicant and Ms Salinas must have communicated between
the time of the Call Centre Manager’s dismissal on the Friday, and before the lunch on the
Sunday. There was no investigation undertaken as to whether there was any communication
between Ms Salinas and the applicant during this reasonably short period of time. In addition,
there was no inquiry made by the employer as to why, at the lunch on Sunday, Ms Clarke
appeared to know that someone had come forward to give evidence in connection with the
dismissal of the Call Centre Manager.
Other Disclosures
[49] Turning to the other incidents of alleged disclosure of confidential HR information, it
should be recognised that these were matters that the applicant offered in response to the
employer’s broad inquiries during the early part of the meeting held on 29 September 2015.
The applicant’s confessions regarding disclosure of Christmas party details were immediately
dismissed by the employer as being inconsequential.
[50] The applicant also confessed that, during after-hours socialising with other employees,
she had made complaint about the work performance of receptionists. On any reasonable and
objective basis, discussion involving generalised personal complaint about the work
performance of work colleagues, in a social context, could not ordinarily be conceived to be
the disclosure of confidential HR information. In some circumstances, details of employees
work performance appraisal information could be inappropriately disclosed and represent
misconduct. However, in this instance, the evidence established that the applicant’s conduct
was little more than the voicing of generalised complaint, which represented little more than
social banter amongst employees.
[51] The role of the applicant provided her with access to important, confidential
information, particularly concerning the circumstances and details surrounding the dismissal
of employees or other basis for termination from employment. The applicant admitted that she
had confirmed certain details regarding the falsification of particular records as the basis for
the dismissal of one or more employees. The applicant rejected that she had admitted to
disclosing or had in fact disclosed, certain redundancy payment details in another instance.
[52] The applicant admitted that her approach to dealing with inquiries made by other
employees about matters such as the reason for the dismissal of an employee, was not without
fault7. It was to the applicant’s credit that during both the meeting with the employer on 29
September 2015, and during her cross examination as a witness, she accepted responsibility
for a certain level of carelessness, or even unprofessionalism, in the manner in which she dealt
with certain, particular inquiries made of her by other employees.
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[53] Upon careful analysis of the nature of the particular disclosures made by the applicant,
her conduct surrounding these incidents should, at its highest, be properly characterised as
work performance deficiencies rather than misconduct. The applicant had been promoted into
a role which required her to exercise considerable discretion regarding the disclosure of any
confidential information. The applicant apparently did not have formal training or
qualifications in any relevant professional discipline, such as Human Resource Management.
In such circumstances, it would be understandable that some genuine mistakes may be made.
Drugs at the Pub Rumour
[54] In addition to the asserted reason for dismissal involving the alleged disclosure of
confidential HR information, the employer identified a complaint with the applicant not acting
upon a rumour that the Call Centre Manager was allegedly bringing drugs to the pub. This
rumour was something that was told to the applicant at some time before the dismissal of the
Call Centre Manager, and the employer complained that the applicant had not raised the
matter when she first heard the rumour. The applicant provided believable evidence that she
simply did not think that the rumour had substance, and she did not wish to act upon what she
considered to be an unsubstantiated rumour.
[55] The applicant’s decision to not further pursue the rumour about the Call Centre
Manager at the time that it first emerged, was entirely understandable and reasonable.
Subsequently, there has appeared to have been some validity that could have been attached to
the rumour, and which apparently was connected with the dismissal of the Call Centre
Manager. However, for the employer to regard the applicant’s initial approach to the rumour
as being some form of inadequate performance, or even misconduct, was an entirely
unreasonable proposition, predicated upon the employer applying the benefit of being wise in
hindsight.
No Valid Reason
[56] Following a careful and balanced consideration of the totality of the evidence that was
presented in connection with the reasons for the dismissal of the applicant, those reasons,
inadequately stated, were also without proper foundation. The various incidents of alleged
disclosure of confidential HR information, when considered together, and in conjunction with
the ancillary issue regarding alleged inaction concerning the rumour of drugs at the pub, do
not represent valid reason for dismissal. In particular, upon careful analysis, there can be no
finding made that the applicant was the person responsible for disclosure of the identities of
the complainant Team Leaders.
[57] Further, the reasons for dismissal could not provide basis for a finding that the
applicant committed serious misconduct of a nature justifying her summary dismissal. At the
very highest, the applicant’s conduct may have amounted to minor indiscretions and
inadvertent slips in professionalism. Therefore, the dismissal of the applicant was not for
valid reason. Consideration of the other elements contained in s.387 of the Act must also be
undertaken.
387 (b) - Notification of reason for dismissal
[58] 2evolve did not provide any written notification of the reason for the applicant's
dismissal. In an organisation of the size of the employer, which conducts business putatively
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on behalf of charitable organisations, the failure to provide a letter of dismissal, particularly
after it had been promised in response to the repeated requests of the applicant, represents a
very regrettable display of incompetence, or a deliberate discourtesy, or perhaps both.
387 (c) - Opportunity to respond to any reason related to capacity or conduct
[59] The applicant submitted that the employer’s approach to the meeting on 29 September
2015 represented an absolute ambush which denied her any proper opportunity to respond to
matters for which she was dismissed on the following day. The employer attempted to defend
its actions by suggesting that it was simply investigating the matters at that time.
[60] The approach that the employer adopted with its investigation into the allegation that
the applicant was responsible for disclosing the identities of the complainant Team Leaders,
might be generously described as inconsiderate and reflective of a pre-determined disposition.
To summon an employee into a meeting, with the knowledge that serious disciplinary matters
were under consideration, and to not advise the employee before that meeting of the serious
nature of the meeting, and to then elicit admissions from the employee in response to broad
verbal suggestions, is not an approach which could even remotely lend itself to securing
procedural fairness and natural justice.
[61] The applicant was not provided with a proper opportunity to respond to the matters
which represented the basis for her dismissal.
387 (d) - Unreasonable refusal to allow a support person to assist
[62] The employer’s approach to the meeting with the applicant on 29 September ensured
that the applicant was not permitted to have a support person present during the serious,
formal meeting at which the matters upon which she was dismissed on the following day,
were discussed and scrutinized.
387 (e) - Warning about unsatisfactory performance
[63] This factor has no relevance in this instance.
387 (f) - Size of enterprise likely to impact on procedures
[64] The size of the employer’s operation should have provided for a much higher standard
of procedure to have been followed.
387 (g) - Absence of management specialists or expertise likely to impact on procedures
[65] It appeared that the employer did not have dedicated employee relations management
specialists, or the suggestion emerged that the applicant may have occupied a role which had
what is described as HR functions. In the circumstances, in respect of the determination that is
required, I have treated this factor as having little significance, such that it has been treated as
being neutral.
387 (h) - Other relevant matters
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[66] The applicant’s unblemished employment record of nearly 5 years was a matter that
did not appear to have significant impact on the employer’s contemplation of what it
considered to be gross misconduct.
[67] However, on balance, the applicant’s conduct was clearly not faultless in respect to
her approach to maintaining confidentiality about employee related matters when she was
approached for information by other staff members. As mentioned earlier in this Decision,
these aspects of the applicant’s conduct are appropriately characterised as performance
defects and mistakes with professionalism, as opposed to misconduct.
[68] There was some disturbing evidence of what can be best described as nasty and
imprudent remarks directed at the applicant during the difficult period of the meeting held on
29 September 2015. There was considerable conflict in the evidence about the detail of the
verbal exchanges that occurred during the meeting, and ultimately the determination of the
matter has been comfortably accommodated without the need to further analyse this
particularly unpleasant aspect of the evidence.
Conclusion
[69] In this instance, the applicant was summarily dismissed for alleged serious misconduct
which involved the inadequate and imprecise reason of “disclosure of confidential HR
information”.
[70] The Commission has undertaken a careful consideration of all of the evidence
regarding the incidents which can be identified to have underpinned the stated reason for the
dismissal of the applicant. This analysis has led to the conclusion that these incidents could
not, either singularly or in combination, represent a sound and defensible reason for the
dismissal of the applicant. Importantly, on any construction of the conduct of the applicant,
there could be no finding made that the applicant intentionally committed misconduct, or that
she recklessly engaged in conduct which would provide justifiable basis for dismissal, let
alone summary dismissal.
[71] Consequently, the substantive reason for the applicant's dismissal has been held to be
invalid.
[72] The processes that the employer adopted for dealing with the allegation that the
applicant had been responsible for the disclosure of the identities of the complainant Team
Leaders, was severely flawed, such that the applicant was denied natural justice. Further, the
applicant was not provided with written reasons for her dismissal. The employer failed to
properly particularise the actual incidences of misconduct upon which it relied as basis for the
summary dismissal of the applicant.
[73] The dismissal of the applicant was harsh, unjust and unreasonable. Consequently, the
application for unfair dismissal remedy has met the legislative requirements and it is granted.
Remedy
[74] The applicant has not sought reinstatement as remedy for her unfair dismissal. Instead,
she has sought remedy in the form of payment of an amount of monetary compensation.
[2016] FWC 2921
13
[75] I have decided that compensation would be an appropriate remedy for the applicant’s
unfair dismissal, and I turn to the factors which involve the quantification of any amount of
compensation.
[76] Section 392 of the Act prescribes certain matters that deal with compensation as a
remedy for unfair dismissal. I have approached the question of compensation having regard
for the guidelines that have been established in the Full Bench Decision in Sprigg v Paul’s
Licensed Festival Supermarket8 and as commented upon in the subsequent Full Bench
Decision in Smith and Ors v Moore Paragon Australia Ltd 9.
[77] Firstly, I confirm that an Order for payment of compensation to the applicant will be
made against the employer in lieu of reinstatement of the applicant.
[78] Secondly, in determining the amount of compensation that I Order, I have taken into
account all of the circumstances of the matter, including the factors set out in paragraphs (a)
to (g) of subsection 392 (2) of the Act.
[79] There was no evidence that an Order of compensation would impact on the viability of
the employer’s enterprise.
[80] The applicant had approximately four years and eight months service with the
employer. The applicant would have been likely to have received remuneration of
approximately $1384.00 per week if she had not been dismissed. There was clear prospect
that the employment of the applicant may have endured for several years.
[81] Following the dismissal, the applicant made efforts to mitigate the loss suffered
because of the dismissal. On about 9 November 2015, the applicant secured alternative
employment which provided for lesser remuneration at the rate of approximately $1260.00
per week.
[82] Thirdly, in this instance there was no established misconduct of the applicant which
contributed to the employer's decision to dismiss.
[83] Fourthly, I confirm that any amount Ordered does not include a component by way of
compensation for shock, distress or humiliation, or other analogous hurt caused to the
applicant by the manner of the dismissal.
[84] In respect to the determination of the quantum of compensation to be provided to the
applicant, I have had regard for the loss of non-transferable employment credits associated
with employment that was approaching five years’ duration.
[2016] FWC 2921
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[85] Consequently, for the reasons outlined above, I have decided that an amount
approximating with nine weeks remuneration should be Ordered as compensation to the
applicant. That amount is $12,456.00. Accordingly, separate Orders [PR580184] providing
for remedy in these terms will be issued.
COMMISSIONER
Appearances:
Ms R Meyers appeared for herself.
Mr C Powell, a Director of 2evolve Pty Limited represented the employer.
Hearing details:
2016.
Sydney:
January, 29
Printed by authority of the Commonwealth Government Printer
Price code C, PR580181
1 Warrell v Walton [2013] FCA 291.
2 Exhibit 4 @ paragraph 16.
3 Transcript @ PN540, also repeated @ PN548.
4 Exhibit 4 @ paragraph 16.
5 Transcript @ PN928.
6 Jones v Dunkel (1959) 101 CLR 298.
7 Transcript @ PN195.
8 Sprigg v Paul’s Licensed Festival Supermarket, (Munro J, Duncan DP and Jones C), (1998) 88IR 21.
9 Smith and Ors v Moore Paragon Australia Ltd, (Lawler VP, Kaufman SDP and Mansfield C), (2004) PR942856.
