1
Fair Work Act 2009
s.604 - Appeal of decisions
Grandbridge Limited
v
Mrs Diane Wiburd
(C2017/4267)
DEPUTY PRESIDENT GOSTENCNIK
DEPUTY PRESIDENT CLANCY
COMMISSIONER SAUNDERS
PERTH, 14 DECEMBER 2017
Appeal against decision ([2017] FWC 2363) of Deputy President Binet at Perth on 14 July
2017 in matter U2017/14894 – permission to appeal granted – appealable error established –
appeal upheld – decision quashed – question whether employer complied with the Small
Business Fair Dismissal Code remitted to another member.
[1] Ms Diane Wiburd commenced employment with Grandbridge Limited (Grandbridge)
as the personal assistant to its managing director, Mr David Breeze, on 17 January 2007 and
she was dismissed summarily on 28 November 2016 on serious misconduct grounds. Ms
Wiburd was advised her employment was terminated because she lied to Mr Breeze, acted in
a manner inconsistent with policies of the company and had engaged in ‘an egregious
violation’ of Grandbridge’s code of conduct. Ms Wiburd applied for an unfair dismissal
remedy under s.394 of the Fair Work Act 2009 (Act). Grandbridge is a small business
employer within the meaning of s.23 of the Act. Grandbridge raised an objection to Ms
Wiburd’s application on the ground that it had complied with the Small Business Fair
Dismissal Code (Code) with the result that Ms Wiburd’s dismissal was consistent with the
Code. Deputy President Binet determined that the dismissal by Grandbridge of Ms Wiburd
was not consistent with the Code.
[2] On 3 August 2017, Grandbridge lodged an appeal, for which permission is necessary,
against the Deputy President’s decision1 (Decision).
[3] The parties filed submissions on both the permission to appeal question and the
substantive appeal and we heard oral arguments on both matters on 7 September 2017.
Decision under appeal
[4] The Deputy President set out some of the background relating to Ms Wiburd’s
employment and dismissal at paragraphs [13] to [45] of the Decision as follows:
1 [2017] FWC 2363.
[2017] FWCFB 6732
DECISION
E AUSTRALIA FairWork Commission
[2017] FWCFB 6732
2
“[13] Grandbridge is a corporation listed on the ASX. The directors of Grandbridge
are Mr Breeze, Mr Kevin Hollingsworth (Mr Hollingsworth) and Ms Deborah
Ambrosini (Ms Ambrosini).
[14] Mr Breeze owns 32.14% of the shares in Grandbridge, either in his personal
capacity or via companies which he controls called Trandcorp Pty Ltd (Trandcorp)
and Trandcorp Superannuation Pty Ltd (Trandcorp Super).
[15] Grandbridge owns 4.87% of the shares in MEC Resources Limited (MEC) and is
the largest shareholder in MEC. Ms Wiburd has a very small share holding in MEC.
[16] MEC is managed from the same premises as Grandbridge, and employs several
staff including Ms Natascha Hughes (Ms Hughes) and Mr Toby Foster (Mr Foster)
who also perform work from time to time for Grandbridge.
[17] Mr Breeze has been Managing Director of Grandbridge for the past 16 years.
Until November 2016, Mr Breeze was also Managing Director of MEC pursuant to the
terms of a contract between MEC and Trandcorp.
[18] In 2008, Ms Ambrosini was appointed the Company Secretary and Chief
Financial Officer of Grandbridge. In April 2012, she was appointed a Director of
Grandbridge and MEC. The other directors of MEC are Mr Goh Hock (Mr Hock) and
Mr KO Yap (Mr Yap).
[19] Ms Wiburd commenced employment with Grandbridge on or around 17 January
2007.
[20] At the time of her dismissal, Ms Wiburd’s remuneration was $77,625.00 per
annum.
[21] Ms Wiburd was initially employed as Mr Breeze’s Personal Assistant. However,
since 2008, she had worked closely with Ms Ambrosini.
[22] Sometime before 2 November 2016, Ms Ambrosini, Mr Hock and Mr Yap agreed
that Mr Breeze should be removed as Managing Director of MEC because they were
dissatisfied with the manner in which he was discharging his duties.
[23] Voting at annual general meetings (AGM) of Grandbridge, MEC, and their
related entities is mostly done by proxy unless the shareholder is going to personally
attend the AGM.
[24] On 4 November 2016, Ms Ambrosini instructed Ms Wiburd to forward the proxy
voting forms to exercise Grandbridge’s voting rights at the upcoming MEC AGM to
her so that she and Mr Hollingsworth could complete them. Ms Ambrosini and Mr
Hollingsworth did not exercise the proxy in the manner which Mr Breeze wanted the
proxy to be exercised.
[25] On or around this date, Ms Wiburd provided Mr Breeze with the proxy voting
forms for him to exercise the voting rights associated with his personal shareholdings
and those of Trandcorp and Trandcorp Super at the MEC AGM.
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[26] Ms Wiburd was one of several staff members of Grandbridge whose duties
included maintaining the spread sheet which recorded the proxy votes received in
advance of the MEC AGM (Electronic Proxy Reconciliation).
[27] On 11 November 2016, Mr Breeze asked Ms Wiburd for copies of the proxies
which had been lodged for the upcoming Grandbridge, MEC, and related entity
AGMs. Ms Wiburd informed Mr Breeze that Ms Ambrosini had taken the file
containing the proxies home.
[28] Ms Wiburd was absent from the workplace from 17 November 2016 until
28 November 2016 on annual leave.
[29] On 19 November 2016, Mr Breeze attended the Grandbridge office and was
unable to locate the hard copy proxy forms for Grandbridge, MEC, and related entity
AGMs. Mr Breeze sought to access the Electronic Proxy Reconciliation and
discovered it was locked.
[30] Mr Breeze became suspicious and searched Ms Ambrosini’s computer. He
discovered emails which revealed the plans to remove him as Managing Director of
MEC.
[31] On 21 November 2016, Mr Breeze attended the Grandbridge office. He
confronted Ms Ambrosini and demanded that she allow him to inspect the physical
file containing the proxy votes. Ms Ambrosini gave him the file and the password to
the Electronic Proxy Reconciliation. The following day, Mr Breeze summarily
dismissed Ms Ambrosini.
[32] On 23 November 2016, a board meeting of MEC was held in Mr Breeze’s
absence. The MEC Board voted to terminate the service agreement between
Trandcorp and MEC, pursuant to which Mr Breeze had been performing the function
of Managing Director of MEC.
[33] Mr Breeze sought to revoke the Grandbridge MEC proxy which had been
completed by Ms Ambrosini and Mr Hollingsworth but was not permitted to do so at
the MEC AGM held on 24 November 2016. Consequently, Mr Breeze has lost the
income and control associated with performing the role of Managing Director of
MEC.
[34] After the MEC AGM, Mr Foster and Ms Hughes attended the Grandbridge office
and removed MEC papers, corporate folios and computing equipment.
[35] On 23 and 25 November 2017, Ms Ambrosini and Mr Hollingsworth respectively
resigned as Directors of Grandbridge, leaving Grandbridge with only one director.
Having locked Ms Hughes and Ms Foster out of the office, having dismissed Ms
Ambrosini, and with Ms Wiburd on annual leave, Mr Breeze was without staff and
under significant personal, legal, emotional and financial strain dealing with the
consequences of the events which had unfolded.
[36] On Saturday 26 November 2016, Mr Breeze prepared a letter terminating Ms
Wiburd’s employment (Termination Letter). In his written statement he admits that:
[2017] FWCFB 6732
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“It was inconceivable to me that Wiburd had not known about that [the plan to
remove him] and had not been involved in that. However, whilst I had very
strong suspicious I did not have, at that point conclusive proof. But I knew that
I could not take the risk to keep her as an employee.
…
I could not trust her at all and I decided to terminate her employment and I
prepared her termination letter in advance of her returning to work.”
[37] On 27 November 2016, Ms Hughes called Ms Wiburd to let her know that Mr
Breeze had dismissed Ms Ambrosini.
[38] On her return to work from annual leave on 28 November 2016, Ms Wiburd
discovered the locks to the Grandbridge office had been changed. She rang Mr Breeze
in order to obtain access to the office. Mr Breeze let her into the office and asked to
speak with her in the boardroom.
[39] Mr Breeze asked Ms Wiburd if she had the backup drive which contained the
Grandbridge corporate records. She advised him that she did not have it.
[40] Mr Breeze and Ms Wiburd disagree as to the order in which the following events
occurred. Ms Wiburd says that Mr Breeze handed her the Termination Letter which he
had prepared on 26 November 2016 and told her that she was summarily dismissed.
She says that he then handed her a single email chain and told her that it indicated that
she had acted dishonestly in conjunction with Ms Ambrosini. Mr Breeze says that he
showed her three email chains and that he did so before handing her the Termination
Letter. They both agree she denied acting dishonestly.
[41] Mr Breeze then asked Ms Wiburd to remain in the office and assist him to obtain
access various banking and software codes. Ms Wiburd agreed to do so and spent an
hour or more assisting Mr Breeze.
[42] Later that afternoon at around 3.00pm, Ms Wiburd called Mr Breeze and asked if
she could return to the office to collect some items she had left behind. Mr Breeze
agreed she could do so. Ms Wiburd returned to the office and removed a file from her
office. Mr Breeze said he had only given approval for Ms Wiburd to collect some
bills. Ms Wiburd said she did not specifically indicate that she intended to only collect
her bills. She says that she collected the termination letter and a folder which
contained her employment contract as well as the unpaid bills. She says that she made
no secret of what documents she removed and, in fact, showed Mr Breeze the
documents she had extracted from the file before departing from the Grandbridge
office. Mr Breeze conceded at the Hearing that she did, in fact, show him what she
was removing but he did not check it carefully.
[43] Mr Breeze alleges that Ms Wiburd removed the only company copy of variations
to both her own and Ms Ambrosini’s employment contracts, which removed an
entitlement to the payment of one month per year of service on termination. He
subsequently made a police report alleging Ms Wiburd had stolen these documents.
[2017] FWCFB 6732
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[44] A few days later, Ms Wiburd returned to the office to collect other personal
belongings. Mr Breeze refused to permit her to enter and recover her personal
belongings. At the time of the Hearing, these items had not yet been returned to Ms
Wiburd.
[45] Mr Breeze says that he subsequently reviewed Ms Wiburd’s email account and
discovered further correspondence which indicated that Ms Wiburd was actively
involved in the plan to remove him as managing director of MEC.”2
[Endnotes omitted]
[5] The Deputy President begins her consideration of whether Ms Wiburd’s dismissal was
consistent with the Code with a discussion of some of the relevant statutory and legal
principles at [52] – [61].
[6] At [62] of the Decision, the Deputy President outlines in summary form the basis upon
which Grandbridge decided to terminate Ms Wiburd’s employment as follows:
“[62] Mr Breeze gave evidence that he decided to terminate Ms Wiburd’s employment
on Saturday 26 November 2017. He admits that at that point in time he only had
“suspicions” and “… did not have, at that point conclusive proof.” that Ms Wiburd
was involved in the MEC directors’ plans to remove him as managing director of
MEC. Nevertheless he decided that she was “… too dangerous because of her close
friendship with [Ms] Ambrosini.” He also says that the emails he discovered on Ms
Ambrosini’s computer revealed that Ms Breeze had acted dishonestly in conjunction
with Ms Ambrosini and that Ms Wiburd ‘hated’ him. In addition, Mr Breeze says that
Ms Wiburd breached company policies and procedures.”3 (Endnotes omitted)
[7] The Deputy President next proceeds to consider the particular allegations said to have
grounded the decision to dismiss Ms Wiburd. These are dealt with under various headings as
follows:
“Alleged Knowledge of Plan to Remove Mr Breeze as Managing Director of
MEC
. . .
[70] Mr Breeze admits that, at the time he decided to dismiss Ms Wiburd, he only
had “suspicions” and “… did not have, at that point conclusive proof.” that she
was involved in the MEC directors’ plans to remove Mr Breeze as managing
director of MEC. In fact, at the Hearing, he admitted that he had no direct evidence
of her knowledge of, or involvement in, the plans to remove him. He conceded
that each of the acts that he points to as indirect evidence of her knowledge and
involvement are things which she could lawfully be instructed to do, and things
that were within the normal scope of her duties.
2 [2017] FWC 2363 at [13] – [45].
3 Ibid at [62].
[2017] FWCFB 6732
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[71] I am not satisfied that, in the circumstances, forwarding the proxy as
instructed constituted behaviour which Mr Breeze could believe on reasonable
grounds was sufficiently serious to justify immediate dismissal.
Alleged Personal Friendship with Ms Ambrosini
. . .
[75] Being a close friend with a colleague, or even with a competitor, is not of
itself reasonable grounds for terminating the employment of a long serving
employee. In any event, Ms Wiburd gave evidence that her relationship with Ms
Ambrosini was of a professional nature only, given their 20 year age difference
and that, in fact, she had a closer personal relationship with Mr Breeze, who had
hosted her at his home.
[76] I am not satisfied that Mr Breeze had reasonable grounds to believe that Ms
Wiburd’s relation with Ms Ambrosini justified Ms Wiburd’s immediate dismissal.
Alleged Dishonest Conduct
[77] Mr Breeze gave evidence that he decided to terminate Ms Wiburd’s
employment on Saturday 26 November 2017 inter alia because he could not trust
her because she had acted dishonestly.
[78] Mr Breeze says that he showed Ms Wiburd the emails which evidenced that
she acted dishonestly when she entered the Grandbridge office on 28 November
2017. Mr Breeze says that he showed Ms Wiburd three email chains contained in
Exhibit A5 at Attachment DB30. Ms Wiburd says he showed her only one. All
three email chains contain an instruction from Ms Ambrosini for Ms Wiburd to
provide an inaccurate excuse to Mr Breeze for Ms Ambrosini’s late arrival to the
Grandbridge office. One is dated 18 June 2015, one is dated 15 February 2016 and
one is dated 14 June 2016.
[79] The instances are widely spaced in time. The emails evidence simply that Ms
Wiburd received an instruction from her supervisor, a director of the business.
Other than in one instance, there is no evidence that Ms Wiburd actually acted on
the instruction. Typically, someone in Ms Ambrosini’s position would be afforded
a degree of flexibility in relation to her start and finish times because she would
be expected to perform work outside normal business hours. Ms Ambrosini’s poor
time keeping and ‘white lies’ about her whereabouts are unprofessional, but three
instances spread over a period of 12 months would be unlikely to be serious
enough to sustain her summary dismissal let alone Ms Wiburd’s.
[80] In addition to the emails that Mr Breeze says he showed Ms Wiburd on the
day that he dismissed her, Grandbridge also tendered a number of other emails in
support of its assertion that Ms Wiburd acted dishonestly. In Exhibit A5 at
Attachment DB5, Ms Wiburd counsels Ms Ambrosini to ensure a person Ms
Ambrosini planned to call does not mention to Mr Breeze that Ms Ambrosini had
contacted him. There is insufficient context to establish that this was, in fact,
conduct which could be considered misconduct let alone serious misconduct.
[2017] FWCFB 6732
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[81] In Exhibit A5 at Attachment DB10 at page 057, Ms Ambrosini instructs Ms
Wiburd to step outside the Grandbridge office so that they can talk without being
overheard about a row that had occurred between Mr Breeze, Ms Ambrosini and
Mr Foster. The email exchange merely evidences that Ms Wiburd was instructed
by her supervisor to hold a discussion privately. It is not surprising that Ms
Ambrosini might wish to do so if she had disagreement with Mr Breeze. I am not
satisfied that it is evidence of conduct on Ms Wiburd’s part that constituted
misconduct let alone serious misconduct.
[82] In Exhibit A5 at Attachment DB10A at page 064, Ms Ambrosini offers to
call Ms Wiburd so “he doesn’t know who you are talking to”. It was not clear on
the evidence who ‘he’ was or what matters were the subject of discussion.
[83] Grandbridge did not identify which of the emails tendered in support of its
assertion that Ms Wiburd had acted dishonestly were found by Mr Breeze on Ms
Ambrosini’s computer before he decided to terminate Ms Wiburd’s employment,
and which he located on Ms Wiburd’s computer after her dismissal. 54 Given the
name in the header of the first page of the email chain it would appear most likely
that Exhibit A5 at Attachment DB5 and Exhibit A5 at Attachment DB10A was, in
fact, sourced from Ms Wiburd’s computer and therefore could not have informed
Mr Breeze’s decision to dismiss Ms Wiburd.
[84] I am not satisfied that Mr Breeze had reasonable grounds for believing that
Ms Wiburd’s conduct was sufficiently serious to justify her immediate dismissal.
Alleged Hatred of Mr Breeze
. . .
[90] Grandbridge did not identify which of the emails tendered in support of its
assertion that Ms Wiburd ‘hated’ Mr Breeze were found by Mr Breeze on Ms
Ambrosini’s computer before he decided to terminate Ms Wiburd’s employment,
and which he located on Ms Wiburd’s computer after her dismissal, other than
Exhibit A5 Attachment DB12. As noted above, given the name in the header of
the first page of the email chain it would appear most likely that Exhibit A5 at
DB3, Exhibit A5 at DB4, Exhibit A5 at Attachment DB6 and Exhibit A5 at
Attachment DB6A were sourced from Ms Wiburd’s computer and therefore could
not have informed Mr Breeze’s decision to dismiss Ms Wiburd.
[91] Not liking certain traits or behaviours of your employer is not, of itself,
reasonable grounds for dismissal. I am not satisfied that Mr Breeze had reasonable
grounds for believing that Ms Wiburd’s personal disapproval of him impacted on
her performance of her duties in a manner which was sufficiently serious to justify
her immediate dismissal. In fact, even after being summarily dismissed by Mr
Breeze, Ms Wiburd graciously agreed to assist Mr Breeze for (on his own
evidence) more than four hours to change passwords and banking details so that he
could operate Grandbridge.
Alleged Breach of Company Policies and Procedures
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwc2363.htm#P396_35824
[2017] FWCFB 6732
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[92] Mr Breeze gave evidence that he decided to terminate Ms Wiburd’s
employment on Saturday 26 November 2017 inter alia because she breached
company policies and procedures. At the Hearing, he clarified that the alleged
breach was that she breached the company Code of Conduct but was vague about
the nature of those alleged breaches. He then conceded that the Code of Conduct
did not, in fact, exist and that the breaches were only of an email policy which Mr
Breeze conceded he had also breached. Mr Breeze then conceded that he did not
check the policies before he decided to refer to a breach of policy as a ground for
termination in Ms Wiburd’s letter of termination.
[93] I am not satisfied that Mr Breeze had reasonable grounds for believing that
Ms Wiburd’s conduct in breaching the company Code of Conduct, if in fact she
did so, was sufficiently serious to justify her immediate dismissal.”4
[Endnotes omitted]
[8] Next, the Deputy President considered whether Ms Wiburd had an opportunity to
respond to the allegations made and reasoned as follows:
“[94] Ms Wiburd says that Mr Breeze informed her that she was dismissed
immediately upon her arrival at the Grandbridge office on 28 November 2016. Even
on Mr Breeze’s version of events, he did so after only showing Ms Wiburd three email
chains contained in Exhibit A5 at Attachment DB30 and asserting that they
demonstrated that she misled him. There is no evidence that Mr Breeze investigated
any of the other matters which he says informed his decision to dismiss Ms Wiburd by
inviting Ms Wiburd to provide a response.
[95] In Guthrie v AJ &T Pullbrook Pty Ltd (Guthrie), the Full Bench of the FWC
considered whether holding discussions with an employee about the grounds for
dismissal was a necessary element of establishing that the employer had reasonable
grounds for believing that the conduct was sufficiently serious to justify immediate
dismissal.
[96] The Full Bench stated that at [20]:
“We are satisfied that the Commissioner correctly followed the approach as
set out in that decision. In particular, he had regard to the fact that the
respondent did not have a discussion with the appellant about the perceived
serious misconduct. Consistent with Pinawin he noted that it would normally
be necessary to hold such a discussion in order to hold a belief on reasonable
grounds that an employee had engaged in conduct sufficiently serious to justify
immediate dismissal. However, he considered that for a number of specific
reasons this was not necessary in what he described as the unusual
circumstances of this case. While it may have been prudent for the respondent
to have sought the appellant’s explanation for what had occurred, there is no
explicit requirement under the Code to hold a discussion with a dismissed
employee.”
4 Ibid at [70] – [71], [75] – [84] and [90] – [93].
[2017] FWCFB 6732
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[Endnotes omitted]
[97] While having discussions is not a mandatory requirement of the Code, the Full
Bench acknowledged that whether such discussions occurred is a relevant
consideration when determining whether the employer had reasonable grounds for
believing that the conduct in question was sufficiently serious to justify immediate
dismissal.
[98] Mr Breeze did not provide any reasonable explanation why it was inappropriate
or unnecessary for him provide Ms Wiburd with an opportunity to respond to the
allegations and allow him to properly test the veracity of those allegations. I am
therefore not satisfied that Mr Breeze conducted an investigation into the grounds on
which he decided to terminate Ms Wiburd’s employment such as to establish
reasonable grounds for his belief that Ms Wiburd’s conduct was sufficiently serious to
justify immediate dismissal.5
[9] The Deputy President ultimately concluded:
“[101] I am not satisfied that the grounds on which Mr Breeze decided to summarily
terminate Ms Wiburd’s employment, even bolstered by information he obtained after
her dismissal, establish that he had reasonable grounds for believing Ms Wiburd’s
conduct was sufficiently serious to justify her immediate dismissal.
[102] In all the circumstances, I am not satisfied the dismissal of Ms Wiburd was
consistent with the Code.”6
Consideration
Permission to Appeal
[10] An appeal under s.604 of the Act is an appeal by way of rehearing and the
Commission’s powers on appeal are only exercisable if there is error on the part of the
primary decision maker.7 There is no right to appeal and an appeal may only be made with the
permission of the Commission.
[11] This appeal is one to which s.400 of the Act applies. Section 400 provides:
(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a
decision made by the FWC under this Part unless the FWC considers that it is in the
public interest to do so.
(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation
to a matter arising under this Part can only, to the extent that it is an appeal on a
question of fact, be made on the ground that the decision involved a significant error
of fact.
5 Ibid at [94] – [98].
6 Ibid at [101] – [102].
7 This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and
Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
[2017] FWCFB 6732
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[12] In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v
Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised
the test under s.400 as “a stringent one”.8 The task of assessing whether the public interest
test is met is a discretionary one involving a broad value judgment.9 In GlaxoSmithKline
Australia Pty Ltd v Makin a Full Bench of the Commission identified some of the
considerations that may attract the public interest:
“... the public interest might be attracted where a matter raises issues of importance
and general application, or where there is a diversity of decisions at first instance so
that guidance from an appellate court is required, or where the decision at first
instance manifests an injustice, or the result is counter intuitive, or that the legal
principles applied appear disharmonious when compared with other recent decisions
dealing with similar matters.”10
[13] It will rarely be appropriate to grant permission to appeal unless an arguable case of
appellable error is demonstrated. This is so because an appeal cannot succeed in the absence
of appellable error.11 However, the fact that the member at first instance made an error is not
necessarily a sufficient basis for the grant of permission to appeal.12
[14] We consider that an arguable case of error has been established and the public interest
is enlivened by the appeal. Specifically, we are persuaded that Grandbridge has made out an
arguable case of appellable error in relation to grounds 2, 13 and 15 of its Notice of Appeal in
so far as they concern the dishonest conduct reason for Ms Wiburd’s dismissal. It is arguable
that the Deputy President fell into error by asking herself the wrong question in focussing on
whether Ms Wiburd’s conduct “was serious enough” to sustain summary dismissal.13 The
proper inquiry raised by the Code is relevantly, whether at the time of the dismissal the
employer genuinely believes on reasonable grounds that the employee’s conduct is
sufficiently serious to justify immediate dismissal. The Code focusses attention on the
employer’s belief which must be based on reasonable grounds, not on whether the employee’s
conduct as a matter of fact and law justified immediate dismissal. It is therefore arguable that
the Deputy President failed to properly apply the Code as Grandbridge contends by ground 13
of its Notice of Appeal.
[15] We also consider that the Deputy President’s conclusion at [98] of the Decision as to
any investigation of the allegations is arguably inconsistent with and contrary to the evidence
(including the statement of agreed facts) in relation to the dishonest conduct allegations. It
seems to us on the evidence that Mr Breeze saw the relevant emails before dismissing Ms
Wiburd, showed at least one of the emails to Ms Wiburd, put to her that she had lied and she
8 (2011) 192 FCR 78 at [43].
9 O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch
(2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services
Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44] -[46].
10 [2010] FWAFB 5343, 197 IR 266 at [27].
11 Wan v AIRC (2001) 116 FCR 481 at [30].
12 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [26]-[27], 197 IR 266; Lawrence v Coal & Allied
Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28], 202 IR 388, affirmed on
judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett
McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28].
13 [2017] FWC 2363 at [79].
[2017] FWCFB 6732
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denied having done so. Therefore, an arguable case of error in this regard has also been made
out.
[16] We also consider the Notice of Appeal and the arguable errors we have identified raise
important questions of general application about the application and interpretation of the Code
sufficient to attract the public interest. We therefore grant Grandbridge permission to appeal.
[17] As will be apparent from that which follows, we have also decided to uphold
Grandbridge’s appeal and to quash the Decision.
The appeal
[18] By its Notice of Appeal,14 Grandbridge identifies 19 appeal grounds. We need only
deal with grounds 2, 13 and 15, by which Grandbridge contends the Deputy President failed
to properly interpret, construe and apply the Code and the Fair Work Regulations 2009
(ground 13), failed to make a finding as to whether Grandbridge held a genuine belief at the
time of the dismissal that Ms Wiburd’s conduct was sufficiently serious to justify immediate
dismissal (ground 2) and erred at [98] in not being satisfied that Mr Breeze conducted any
investigation into the grounds on which he decided to terminate Ms Wiburd’s employment
when the evidence was clear and unchallenged that he had done so (ground 15).
[19] As to ground 2, Ms Wiburd submitted that the Deputy President reached the correct
conclusion after considering and properly applying the law to the relevant facts that she
found. We do not accept this submission insofar is it relates to the question of whether the
Deputy President made a finding as to whether Grandbridge held a genuine belief at the time
of the dismissal that Ms Wiburd’s conduct was sufficiently serious to justify immediate
dismissal. Our reasons in relation to this ground of appeal are set out below.
[20] In connection with ground 13, Ms Wiburd contended that the Deputy President
correctly construed the Code, that she was not obliged to construe regulation 1.07 as the Code
supplies its own limited definition of serious misconduct to guide small business employers,
and that in any event the Deputy President did not misconstrue regulation 1.07.15 We reject
Ms Wiburd’s contention in so far as it relates to the dishonest conduct allegation with which
the Deputy President dealt at [77]– [79] of the Decision. We also reject the contention that the
Deputy President was not obliged to construe regulation 1.07 because the Code supplies its
own limited definition for two reasons. First, the definition of serious misconduct in the Code
is inclusive not exhaustive, thus is not limited as submitted. Secondly, because it is directly
contrary to Full Bench authority, to which reference is made later in this decision.
[21] As to ground 15, Ms Wiburd says that the Deputy President’s reasons at [98] were
directed to whether Mr Breeze gave her a reasonable opportunity to respond to the matters
about which he was concerned. She says that the Deputy President noted that he offered no
explanation for not testing the veracity of those concerns.16 Ms Wiburd further says that to the
extent that the Deputy President’s comments can be construed as finding that Mr Breeze
undertook no investigation steps at all, the Deputy President was mistaken.17 This is a proper
14 Form F7 – Notice of Appeal dated 3 August 2017 at 2.1.
15 Respondent's outline of submissions at [4.20] – [4.24].
16 Ibid at [4.25].
17 Ibid at [4.26].
[2017] FWCFB 6732
12
concession to make. She says that there is evidence that Mr Breeze searched Ms Ambrosini’s
and Ms Wiburd’s email accounts,18 but Ms Wiburd says that this error is not of a kind or
magnitude that would have led the Deputy President to a different decision.19 For reasons we
later develop, this last point cannot be sustained. As the Deputy President evidently mistook
the facts she did not take into account that an investigation of some kind was undertaken by
Mr Breeze into the dishonesty conduct allegation.
[22] Section 388 of the Act deals with the Code as follows:
“388 The Small Business Fair Dismissal Code
(1) The Minister may, by legislative instrument, declare a Small Business Fair
Dismissal Code.
(2) A person’s dismissal was consistent with the Small Business Fair Dismissal
Code if:
(a) immediately before the time of the dismissal or at the time the person was given
notice of the dismissal (whichever happened first), the person’s employer was a small
business employer; and
(b) the employer complied with the Small Business Fair Dismissal Code in relation to
the dismissal.”
[23] Section 23 of the Act defines a “small business employer” relevantly as a “national
system employer is a small business employer at a particular time if the employer employs
fewer than 15 employees at that time”. There was no dispute that at the time Ms Wiburd was
dismissed, only she and Mr Breeze were employees of Grandbridge. Ms Deborah Ambrosini
had previously been an employee of Grandbridge but was dismissed approximately one week
before Ms Wiburd.
[24] The legislative instrument containing the Code declared by the Minister pursuant to
s.388(1) is as follows:
Summary dismissal
It is fair for an employer to dismiss an employee without notice or warning
when the employer believes on reasonable grounds that the employee's conduct
is sufficiently serious to justify immediate dismissal. Serious misconduct
includes theft, fraud, violence and serious breaches of occupational health and
safety procedures. For a dismissal to be deemed fair it is sufficient, though not
essential, that an allegation of theft, fraud or violence be reported to the police.
Of course, the employer must have reasonable grounds for making the report.
Other dismissal
18 Ibid at [4.2].
19 Ibid at [4.28].
[2017] FWCFB 6732
13
In other cases, the small business employer must give the employee a reason
why he or she is at risk of being dismissed. The reason must be a valid reason
based on the employee's conduct or capacity to do the job.
The employee must be warned verbally or preferably in writing, that he or she
risks being dismissed if there is no improvement.
The small business employer must provide the employee with an opportunity
to respond to the warning and give the employee a reasonable chance to rectify
the problem, having regard to the employee's response. Rectifying the problem
might involve the employer providing additional training and ensuring the
employee knows the employer's job expectations.
Procedural matters
In discussions with an employee in circumstances where dismissal is possible,
the employee can have another person present to assist. However, the other
person cannot be a lawyer acting in a professional capacity.
A small business employer will be required to provide evidence of compliance
with the Code if the employee makes a claim for unfair dismissal to Fair Work
Australia, including evidence that a warning has been given (except in cases of
summary dismissal). Evidence may include a completed checklist, copies of
written warning(s), a statement of termination or signed witness statements.
[25] Section 12 of the Act defines “serious misconduct” as having “the meaning prescribed
by the regulations.” Regulation 1.07 of the Fair Work Regulations 2009 (Regulations)
provides:
“1.07 Meaning of serious misconduct
(1) For the definition of serious misconduct in section 12 of the Act, serious misconduct
has its ordinary meaning.
(2) For subregulation (1), conduct that is serious misconduct includes both of the
following:
(a) wilful or deliberate behaviour by an employee that is inconsistent with the
continuation of the contract of employment;
(b) conduct that causes serious and imminent risk to:
(i) the health or safety of a person; or
(ii) the reputation, viability or profitability of the employer’s business.
(3) For subregulation (1), conduct that is serious misconduct includes each of the
following:
(a) the employee, in the course of the employee’s employment, engaging in:
[2017] FWCFB 6732
14
(i) theft; or
(ii) fraud; or
(iii) assault;
(b) the employee being intoxicated at work;
(c) the employee refusing to carry out a lawful and reasonable instruction that is
consistent with the employee’s contract of employment.
(4) Subregulation (3) does not apply if the employee is able to show that, in the
circumstances, the conduct engaged in by the employee was not conduct that made
employment in the period of notice unreasonable.
(5) For paragraph (3)(b), an employee is taken to be intoxicated if the employee’s
faculties are, by reason of the employee being under the influence of intoxicating
liquor or a drug (except a drug administered by, or taken in accordance with the
directions of, a person lawfully authorised to administer the drug), so impaired that the
employee is unfit to be entrusted with the employee’s duties or with any duty that the
employee may be called upon to perform.”
[26] It is not in contest that Ms Wiburd was subjected to immediate dismissal on 28
November 2016. As we have earlier observed and as contained in the letter confirming her
dismissal20, the reasons for the immediate dismissal were threefold. The first, because Ms
Wiburd had lied to Mr Breeze, the second because she had acted in a manner inconsistent
with policies of the company and the third because she had engaged in ‘an egregious
violation’ of Grandbridge’s Code of Conduct.
[27] It is also not in contest that the first paragraph of the Code under the heading
“summary dismissal” is the only relevant part of the Code which is engaged in the
circumstances of Ms Wiburd’s dismissal.
[28] The proper approach to the construction and application of the summary dismissal
aspect of the Code and its interaction with regulation 1.07 was considered by a Full Bench of
this Commission in Ryman v Thrash Pty Ltd t/a Wisharts Automotive Services (Ryman)21 as
follows:
“[26] The first issue to be determined is whether Mr Ryman’s dismissal was of a type
to which the “Summary dismissal” section of the Code applies. It is necessary to make
the observation at the outset that this issue is not easy to resolve because the Code
generally, and this section of the Code in particular, is very poorly drafted. Three
different expressions are used to describe the class of dismissals dealt with in the
section: “Summary dismissal” (in the section heading, as well as in an apparent cross-
reference in the last paragraph of the Code), dismissals “without notice or warning”,
and “immediate dismissal”. These expressions are not entirely synonymous. Further,
20 AB422.
21 [2015] FWCFB 5264.
[2017] FWCFB 6732
15
and in a rather disjunctive way, the last three of the four sentences of this section of
the Code are concerned with serious misconduct, which must be taken to be also
indicative of its subject matter. These four aspects of the Code require some analysis.
[27] The expression “summary dismissal”, notwithstanding that it has been described
as one of a number of “confusing and ambiguous terms” developed by employment
lawyers in connection with termination of employment contracts, has a reasonably
well understood meaning at law. It refers to a dismissal without notice arising from a
breach of an essential term of the employment contract, a serious breach of a non-
essential term of the contract, or conduct manifesting an intention not to be bound by
the contract in the future on the part of the employee. Misconduct on the part of the
employee is not the only circumstance which may give rise to the employer’s right of
summary dismissal. In Rankin v Marine Power International Pty Ltd, the Victorian
Supreme Court (Gillard J) referred to “misconduct, disobedience, incompetence or
negligence” as constituting possible bases for summary dismissal (although
disobedience to lawful and reasonable directions might be regarded as a species of
misconduct).
[28] It is not the case that “serious misconduct” operates as a fixed standard for the
determination of the type of conduct by the employee which may warrant summary
dismissal. This was discussed in Sharp v BCS Infrastructure Support Pty Limited (in
the context of s.387 of the FW Act) as follows:
“[34] It may be accepted that an assessment of the degree of seriousness of
misconduct which has been found to constitute a valid reason for dismissal for
the purposes of s.387(a) is a relevant matter to be taken into account under
s.387(h). In that context, a conclusion that the misconduct was of such a nature
as to have justified summary dismissal may also be relevant. Even so, it is
unclear that this requires a consideration of whether an employee’s conduct
met a postulated standard of “serious misconduct”. In Rankin v Marine Power
International Pty Ltd Gillard J stated that “There is no rule of law that defines
the degree of misconduct which would justify dismissal without notice”and
identified the touchstone as being whether the conduct was of such a grave
nature as to be repugnant to the employment relationship. “Serious
misconduct” is sometimes used as a rubric for conduct of this nature, but to
adopt it as a fixed standard for the consideration of misconduct for the purpose
of s.387(h) may be confusing or misleading because the expression, and other
expressions of a similar nature, have been considered and applied in a variety
of contexts in ways which are influenced by those contexts. In McDonald v
Parnell Laboratories (Aust) Pty Ltd Buchanan J said:
‘[48] The terms ‘misconduct’, ‘serious misconduct’ and ‘serious and wilful
misconduct’ are often the subject of judicial and administrative attention as
applied to the facts of particular cases but there is relatively little judicial
discussion about their content and meaning. Naturally enough, when the term
‘serious misconduct’ is under consideration an evaluation of what conduct
represents ‘serious’ misconduct is influenced by the (usually statutory) setting
in which the phrase must be given meaning and applied. Frequently, for
example, the question at issue is whether an employee is disentitled by reason
of his or her conduct to a statutory entitlement (eg. in New South Wales, where
[2017] FWCFB 6732
16
Ms McDonald was employed, see Long Service Leave Act 1955 (NSW) s
4(2)(a)(iii); Workers Compensation Act 1987 (NSW) s 14(2).’”
[29] The payment of a sum in lieu of notice is not consistent with a summary
dismissal, understood in the way explained above. Such a payment is best
characterised as compensation for the remuneration that an employee would have
received if the employee had been afforded the period of notice to which he or she was
entitled. If the employer has a right to summarily dismiss, there cannot be any
entitlement to notice, and no basis therefore for a payment in lieu of notice.
[30] The operative effect of the “summary dismissal” section of the Code is conveyed
by the first sentence, which identifies the circumstances in which “[i]t is fair for an
employer to dismiss an employee without notice or warning…”. The reference to
dismissal “without notice or warning” in the Code is confusing. A dismissal “without
notice”, understood literally, means a dismissal in relation to which no period of notice
is provided. A dismissal that is accompanied by a payment in lieu of notice, as well as
a summary dismissal, is usually regarded as a dismissal without notice. That points to
a lack of synonymity between a summary dismissal and a dismissal without notice. An
alternative view might be that a dismissal “without notice” was intended to mean a
dismissal in relation to which no payment in lieu of notice has been provided as well
as no actual notice provided. That would resolve the synonymity problem. However it
is not a reading which readily arises from the words actually used.
[31] It is unclear whether a dismissal “without warning” was intended to mean
something different from a dismissal “without notice”. Presumably the warning
referred to is a warning that dismissal is going to occur sometime in the future, in
which case a dismissal without notice and a dismissal without warning are probably
the same thing. However if the warning is of the possibility that dismissal might occur,
then things get more complicated. Although, absent an express contractual term to the
contrary, there is no obligation at law upon an employer to afford an employee a right
to be heard in relation to any allegation of misconduct, incompetence or negligence
which might lead to summary dismissal, most employers (including small business
employers) would in accordance with modern industrial relations practice probably do
so. Where a dismissal results, there might be a question in that circumstance as to
whether the employer has in some sense warned the employee of the dismissal.
Alternatively, the “warning” contemplated might be a warning that if certain conduct
is repeated or performance is not improved, dismissal will follow. There is no
necessary inconsistency between the issue of such a warning and a subsequent
summary dismissal, but arguably such a dismissal may not be characterised as one
“without warning”.
[32] An immediate dismissal is one which takes effect immediately. That would
include a summary dismissal in the sense earlier discussed, but it would also include a
dismissal with a payment in lieu of notice which is intended to have immediate effect.
[33] There is therefore discordance between the expressions used to describe the
relevant class of dismissals covered by the “Summary dismissal” section of the Code,
particularly in relation to whether the section includes dismissals with immediate
effect accompanied by a payment in lieu of notice. Further guidance is required from
the remaining part of the section in order to attempt to identify its intended target.
[2017] FWCFB 6732
17
[34] As earlier stated, the balance of the “Summary dismissal” section of the Code is
concerned with aspects of “serious misconduct”. There is a logical disjunction
between the first sentence and the remaining three sentences, in that the connection or
relationship between them is left unexplained. For the reasons discussed, the class of
dismissals described in the first sentence (and the heading) are not, on their face,
confined to dismissals for serious misconduct, but the next sentence and those that
follow appear only to deal with serious misconduct. That must be taken as a pointer to
the subject matter of the “Summary dismissal” section of the Code.
[35] The apparent purpose of the second sentence is to define the expression “serious
misconduct”. Two interrelated difficulties arise in this respect. First, the use of the
word “includes” makes it difficult to discern whether the definition is meant to be
exhaustive or simply to make it clear that the identified matters may constitute serious
misconduct. Second, it is not clear whether the effect of the sentence is to displace the
definition of “serious misconduct” in s.12 of the FW Act and reg.1.07 of the
Regulations. Section 13(1)(b) of the Legislative Instruments Act 2003 (Cth) provides
that expressions in a legislative instrument (such as the Code) have the same meaning
as in the enabling legislation as in force from time to time (here, the FW Act) “unless
the contrary intention appears”. The question arises whether the second sentence, in
attempting to define “serious misconduct”, exhibits an intention that the definition in
s.12 and reg.1.07 not apply.
[36] It is frankly not possible to arrive at an interpretation of the “Summary dismissal”
section of the Code which neatly resolves all these difficulties and inconsistencies. It is
likely that the drafter(s) of the Code did not have a complete understanding of the
terminology which they used to give expression to their intention. Accordingly the
best we can do is to give effect to that intention so far as it may broadly be discerned
from the Code as a whole. In that connection we consider that two things are apparent:
(1) The “Summary dismissal” section of the Code is concerned with dismissals
which have immediate effect, not dismissals on notice. That is the consistent
element of the various expressions used to describe the relevant class of
dismissals.
(2) The section is likewise concerned with dismissals made on the basis of
serious misconduct. The focus on “serious misconduct” must be taken as
identifying the subject matter, notwithstanding that there is no explicit
connection between the class of dismissal described and the matter of serious
misconduct.
[37] Notwithstanding that the Code, and its accompanying checklist, were apparently
designed to be read as “stand alone” documents by small business employers, we
prefer the view that the reference to “serious misconduct” is to be read as bearing the
meaning in reg.1.07. The types of conduct expressly referred to in the Code as
constituting serious misconduct are all encompassed by the reg.1.07 definition, so no
direct inconsistency is apparent. The fact that the checklist invites inclusion of “some
other form of serious misconduct” suggests that the identified types of conduct were
not meant to be exhaustive, and it is otherwise difficult to conclude that they were
meant to be exhaustive given that they do not include other types of behaviour which
may well constitute misconduct justifying summary dismissal, such as sexual
[2017] FWCFB 6732
18
harassment, bullying or significant non-compliance with a lawful and reasonable
direction. And, as earlier discussed, the lack of any recognised meaning at law of the
expression “serious misconduct” means that the definition in reg.1.07 is necessary to
give the expression a clear content.
[38] We therefore consider that the “Summary dismissal” section of the Code applies
to dismissals without notice on the ground of serious misconduct as defined in
reg.1.07.
[39] To be clear, nothing stated above is to be taken as suggesting that in relation to
such a dismissal it is necessary for the Commission to be satisfied that the serious
misconduct which is the basis for the dismissal actually occurred in order for the
dismissal not to be unfair. As was explained in Pinawin T/A RoseVi.Hair.Face.Body v
Domingo:
“[29] … There are two steps in the process of determining whether this aspect of
the Small Business Fair Dismissal Code is satisfied. First, there needs to be a
consideration whether, at the time of dismissal, the employer held a belief that
the employee’s conduct was sufficiently serious to justify immediate dismissal.
Secondly it is necessary to consider whether that belief was based on reasonable
grounds. The second element incorporates the concept that the employer has
carried out a reasonable investigation into the matter. It is not necessary to
determine whether the employer was correct in the belief that it held.”
[40] Whether the employer had “reasonable grounds” for the relevant belief is of
course to be determined objectively.
[41] In summary, drawing on the conclusions stated above and the ratio in Pinawin,
we consider that the “Summary dismissal” section of the Code operates in the
following way:
(1) If a small business employer has dismissed an employee without notice - that
is, with immediate effect - on the ground that the employee has committed
serious misconduct that falls within the definition in reg.1.07, then it is necessary
for the Commission to consider whether the dismissal was consistent with the
“Summary dismissal” section of the Code. All other types of dismissals by small
business employers are to be considered under the “Other dismissal” section of
the Code.
(2) In assessing whether the “Summary dismissal” section of the Code was
complied with, it is necessary to determine first whether the employer genuinely
held a belief that the employee’s conduct was sufficiently serious to justify
immediate dismissal, and second whether the employer’s belief was, objectively
speaking, based on reasonable grounds. Whether the employer has carried out a
reasonable investigation into the matter will be relevant to the second
element.”22
22 Ibid at [26] – [41].
[2017] FWCFB 6732
19
[29] As is apparent from the analysis in Ryman, in the instant case as Grandbridge
dismissed Ms Wiburd without notice on the ground that she had engaged in serious
misconduct (that is conduct falling within the definition of regulation 1.07), it was necessary
for the Deputy President to consider whether Ms Wiburd’s dismissal was consistent with the
summary dismissal section of the Code.
[30] In assessing whether Grandbridge had complied with the summary dismissal section
of the Code it was necessary for the Deputy President to first determine whether Grandbridge
genuinely held the belief that Ms Wiburd’s conduct was sufficiently serious to justify
immediate dismissal. It seems self-evident that the belief held by Grandbridge can only relate
to the conduct of Ms Wiburd about which Grandbridge was aware at the time of the dismissal.
Secondly, it was necessary for the Deputy President to consider whether Grandbridge’s belief
was, objectively speaking, based on reasonable grounds, and the question whether
Grandbridge had carried out a reasonable investigation into Ms Wiburd’s conduct is a relevant
matter in assessing whether Grandbridge’s belief was based on reasonable grounds.
[31] There were two aspects to the dishonest conduct allegations. The first aspect is dealt
with by the Deputy President at [77] – [79] of the Decision. The second aspect is dealt with at
[80] – [83]. We propose only to deal with the first aspect. As to the second aspect we are not
persuaded that the Deputy President’s analysis involved any material error. The gravamen of
the Deputy President’s conclusion as to the second aspect is that she could not be satisfied on
the evidence that Mr Breeze had viewed or read the various emails supporting the second
aspect of the dishonesty conduct allegation before Ms Wiburd’s dismissal. Therefore the
emails did not provide reasonable grounds for any belief as to that conduct and its
seriousness.
[32] In respect of this and other conduct about which knowledge was later acquired
Grandbridge’s reliance on the decision in Concut Pty Ltd v Worrell,23 to support its
submission that it was entitled to rely on material evidencing misconduct engaged in by Ms
Wiburd during her employment which came to light after Ms Wiburd’s dismissal and about
which Grandbridge had no knowledge during the employment to support its dismissal of Ms
Wiburd, is with respect misplaced in the context of the Code. True it is that after acquired
knowledge of misconduct may be relied upon to defend an action for wrongful dismissal or to
support a finding that there was a valid reason for dismissal.
[33] But the Code, in relation to its summary dismissal aspect, is concerned with an
employer’s genuine belief held at the time of the dismissal and whether the employer had
reasonable grounds for that belief at that time. Self-evidently that which is not known to a
small business employer at the time it decides to summarily dismiss an employee cannot be
said to form part of that employer’s belief nor can it provide reasonable grounds for the belief
held at the time of the dismissal.
[34] Returning then to the first aspect of the dishonest conduct allegation. It appears to us
that the uncontroverted evidence before the Deputy President was that Mr Breeze had
obtained and read the various emails which were annexed to his witness statement and
marked DB 3024 before he dismissed Ms Wiburd.25
23 (2000) HCA 64; (2000) 75 ALJR 312.
24 AB423 – 426.
25 AB253 at [100].
[2017] FWCFB 6732
20
[35] The emails record exchanges between Ms Ambrosini who was a director, company
secretary and chief financial officer of Grandbridge and Ms Wiburd and are in the following
terms.
[36] First is the email of 18 June 2015 from Ms Ambrosini to Ms Wiburd the text of which
provides:
(Ambrosini)
“Going to be in about 11.30 having small melt down today. Can you please just say I
have an app.”26
[37] Next is the email of 15 February 2016 from Ms Ambrosini to Ms Wiburd the text of
which provides:
(Ambrosini)
“Running late can you please make up some reason for me. Sorry it has been a crazy
morning thanks to my instructor being late !! It wasn’t even me this time.”27
[38] Next is a chain of emails between Ms Ambrosini to Ms Wiburd sent at various times
on 14 June 2016 the text of which provide:
(Ambrosini)
“ Going to be late. Farrier is very late and there are no staff here so I have to wait. Sorry
Di it’s a disaster at the moment.”28
(Wiburd)
“I’m home alone YES!! DB & Toby (I guess) at meeting.”29
(Ambrosini)
“Oh that awesome. Can you turn my computer on and if he gets back tell him I went to
a meeting. Just make my office look like I was there. Maybe put a coffee cup on my
desk near the computer. My password is Davies05.”30
(Wiburd)
“Done.”31
26 Email from Ms Deborah Ambrosini to Ms Diane Wiburd on 18 June 2015 at 9.25am.
27 Email from Ms Deborah Ambrosini to Ms Diane Wiburd on 15 February 2016 at 10.01am.
28. Email from Ms Deborah Ambrosini to Ms Diane Wiburd on 14 June 2016 at 9.24am
29 Email from Ms Diane Wiburd to Ms Deborah Ambrosini on 14 June 2016 at 9.27am.
30 Email from Ms Deborah Ambrosini to Ms Diane Wiburd on 14 June 2016 at 10.25am.
31 Email from Ms Diane Wiburd to Ms Deborah Ambrosini on 14 June 2016 at 10.27am.
[2017] FWCFB 6732
21
(Ambrosini)
“Thanks Di
I am at the insurance broker to get d and o policies :)”32
(Wiburd)
“Just told DB at insurance meeting and have been in :)”33
[39] It is uncontroversial that the references to “DB” in the above exchange is reference to
Mr Breeze. That at least one of these emails was shown to Ms Wiburd by Mr Breeze on the
day of the dismissal, that he told Ms Wiburd he thought that she had lied to him and that she
had denied it are facts agreed as set out in the statement of agreed facts filed in the
proceedings.34
[40] The first error that appears to us to have been made by the Deputy President in
considering whether Grandbridge had complied with the summary dismissal aspect of the
Code appears on the face of the Decision. There does not appear to us to be any express
finding as to whether Grandbridge genuinely held the belief that Ms Wiburd’s conduct was
sufficiently serious to justify immediate dismissal in respect of the first aspect of the dishonest
conduct allegation. It might be inferred from the conclusion set out at [84] or [101] of the
Decision that the Deputy President concluded that such a belief was held but it is by no means
clear. The focus of paragraphs [84] and [101] is on whether Mr Breeze had reasonable
grounds, not on whether he genuinely held a particular belief. Accordingly, we are of the view
that there was a failure to make a finding as to whether Grandbridge genuinely held the belief
that Ms Wiburd’s conduct was sufficiently serious to justify immediate dismissal in respect of
the first aspect of the dishonest conduct allegation.
[41] The second error appears in the reasoning set out in [79] of the Decision which is as
follows:
“[79] The instances are widely spaced in time. The emails evidence simply that Ms
Wiburd received an instruction from her supervisor, a director of the business. Other
than in one instance, there is no evidence that Ms Wiburd actually acted on the
instruction. Typically, someone in Ms Ambrosini’s position would be afforded a
degree of flexibility in relation to her start and finish times because she would be
expected to perform work outside normal business hours. Ms Ambrosini’s poor time
keeping and ‘white lies’ about her whereabouts are unprofessional, but three instances
spread over a period of 12 months would be unlikely to be serious enough to sustain
her summary dismissal let alone Ms Wiburd’s.”35
[42] We make four points about the reasoning in [79]. First, the Deputy President observed
that there is no evidence, save for one instance, that Ms Wiburd actually acted on the
instruction. That inquiry suggests that the Deputy President was concerned with whether Ms
32 Email from Ms Deborah Ambrosini to Ms Diane Wiburd on 14 June 2016 at 10.50am.
33 Email from Ms Diane Wiburd to Ms Deborah Ambrosini on 14 June 2016 at 11.25am.
34 AB 428 at [9] – [10].
35 [2017] FWC 2363 at [79].
[2017] FWCFB 6732
22
Wiburd was “guilty” of the conduct rather than considering whether the emails provided
reasonable grounds for any belief held by Grandbridge as to the conduct and its seriousness.
[43] Secondly, objectively, it might reasonably be inferred from the email exchanges that
Ms Ambrosini is unlikely to have made repeated requests of Ms Wiburd to dishonestly cover
up her lateness and absences, unless Ms Wiburd in fact did so; and as is evident she did so on
14 June 2016.
[44] Thirdly, the Deputy President’s observation that someone in Ms Ambrosini’s position
would be afforded a degree of flexibility in relation to her start and finish times because she
would be expected to perform work outside normal business hours, focuses attention on Ms
Ambrosini’s conduct and not any belief held by Grandbridge or whether any such belief was
on reasonable grounds in relation to Ms Wiburd’s conduct. Moreover, even if Ms
Ambrosini’s conduct were relevant, there is nothing in the evidence which supports the
observation and it is inconsistent with the conduct in which Ms Ambrosini engaged. A person
who is given or afforded a degree of flexibility in relation to starting and finishing times is not
likely to request that a more junior employee cover up for her absence. That would be
unnecessary.
[45] Fourthly, the final sentence of [79] discloses that the Deputy President focused on the
seriousness of Ms Ambrosini’s conduct and, by extension, the seriousness of Ms Wiburd’s
conduct rather than focusing upon whether any belief held by Grandbridge was on reasonable
grounds. Grandbridge did not have to persuade the Deputy President that Ms Wiburd’s
conduct was, as a matter of fact and law, serious misconduct justifying summary dismissal. If
that were the case, the utility of the Code so far as it operates in respect of small business
employers would be completely undermined. It seems to us that, with respect, the Deputy
President asked herself the wrong question and directed her enquiry to the wrong subject
matter which in the result has led her into error.
[46] On the material in the emails described above it is apparent that Ms Wiburd lied to Mr
Breeze about the attendance in the office of Ms Ambrosini on 14 June 2016. It is apparent on
the evidence that apart from sourcing and reading the emails before dismissing Ms Wiburd,
Mr Breeze put to Ms Wiburd the allegation that she had lied to him in respect of the above
matter, showed Ms Wiburd at least one email, which on her own account was an email which
related to an occasion when Ms Ambrosini was absent because she was dealing with a private
matter during business hours36, and Ms Wiburd denied lying to Mr Breeze. Although the
Deputy President noted at [94] of her Decision some of these matters, it is evident the Deputy
President concluded, at [98] of the Decision, that no investigation was undertaken into any of
the grounds on which Grandbridge relied and that no opportunity was given to Ms Wiburd to
answer any of the allegations. Those conclusions so far as they concern the dishonesty
conduct allegation seem to us to be contrary to the evidence.
[47] On these facts the questions that required answering were first, whether Grandbridge
genuinely held the belief that Ms Wiburd’s conduct (the dishonesty allegation) was
sufficiently serious to justify immediate dismissal; and second, whether any such belief held
by Grandbridge was, objectively speaking, based on reasonable grounds. Such investigation
as was apparently carried out by Mr Breeze was a relevant matter in assessing whether any
such belief held by Grandbridge was based on reasonable grounds. By focusing on the
36 AB 435 at [4.10].
[2017] FWCFB 6732
23
seriousness of the conduct rather than the genuineness of any belief and whether it was based
on reasonable grounds, the Deputy President failed, in our view, to answer the first question.
By failing to take into account that an investigation had been undertaken into the dishonest
conduct allegation, the Deputy President did not take into account a consideration that was
relevant to the second question.
Conclusion
[48] For the reasons given we:
a) Grant permission to appeal;
b) Uphold the appeal;
c) Quash the decision in [2017] FWC 2363; and
d) Refer the question whether Grandbridge complied with the Code in relation to Ms
Wiburd’s dismissal to Deputy President Beaumont.
DEPUTY PRESIDENT
Appearances:
Mr D Howlett, Counsel for Grandbridge Limited.
Mr S Heathcote, Solicitor for Ms Wiburd.
Hearing details:
2017.
September 7.
Melbourne via VC to Perth.
Printed by authority of the Commonwealth Government Printer
Price code C, PR598732
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