1
Fair Work Act 2009
s.394—Unfair dismissal
Rebecca Whiffen
v
Sense Rugby Pty Ltd
(U2023/6363)
COMMISSIONER MCKINNON SYDNEY, 4 OCTOBER 2023
Application for an unfair dismissal remedy – whether dismissal was consistent with the Small
Business Fair Dismissal Code – whether dismissal was harsh, unjust or unreasonable –
unfair dismissal – reinstatement not appropriate
[1] Mrs Rebecca Whiffen was employed by Sense Rugby Pty Ltd (Sense Rugby), a small
business employer based in Fairy Meadow, New South Wales. She was employed in the role
of Senior Administration and Reception from 30 March 2021 until 29 June 2023, when she was
dismissed for misconduct.
[2] On 13 July 2023, Mrs Whiffen applied in time for an unfair dismissal remedy under
section 394 of the Fair Work Act 2009 (the Act). Mrs Whiffen is protected from unfair dismissal
because she completed the minimum employment period of at least 12 months with Sense
Rugby; was covered by a modern award; and her annual rate of earnings was below the high
income threshold.
[3] The dismissal was not a case of genuine redundancy.
[4] The question is whether I am satisfied that the dismissal was consistent with the Small
Business Fair Dismissal Code, and if not, whether I am satisfied that the dismissal was harsh,
unjust or unreasonable.
[5] I am satisfied that the dismissal was not consistent with the Small Business Fair
Dismissal Code. I am also satisfied that the dismissal was unreasonable. Mrs Whiffen has been
unfairly dismissed. These are my reasons.
The facts
[6] Mr Jesse Parahi and Mrs Carlien Parahi established Sense Rugby as a rugby-based
occupational therapy business for children with disabilities. In January 2019, they became
friends with Mrs Whiffen and her husband Mr Ryan Whiffen after meeting through family day
care. The families caught up regularly, went camping, and in March 2021, Sense Rugby offered
Mrs Whiffen a job.
[2023] FWC 2516
DECISION
AUSTRALIA FairWork Commission
[2023] FWC 2516
2
[7] For the majority of her employment, Mrs Whiffen worked 4 days per week, including
occasional additional hours and part of the week working from home. She took her job seriously
and wanted to do the best for the business. Her range of duties included accounts, general clinic
administration and reception duties, waitlist and appointment scheduling, and working on
Client Service Agreements (CSAs).
[8] In January 2022, the scope of Mrs Whiffen’s role was narrowed when another employee
took on ‘out of area’ and franchisee enquiries. A further narrowing of the role occurred in June
2022, when Ms Carla Mikic was employed to work 2 days per week to job share with Mrs
Whiffen, assisting with clinic administration including by taking over appointment scheduling.
Accounts became the focus of Mrs Whiffen’s role, although she continued to deal with local
enquiries and Holiday Group bookings and enquiries, as well as reception when she was in the
clinic. She also assisted with the training of Ms Mikic, including in relation to scheduling duties.
[9] After a few months, Mrs Parahi asked Mrs Whiffen to withdraw from providing
assistance to Ms Mikic in relation to scheduling. Mrs Whiffen found the instruction difficult to
action, including because she noticed inconsistencies in Ms Mikic’s work. It seems likely this
prompted a later oral reminder from Mrs Parahi to Mrs Whiffen to the effect that she should
“stay within her lane” and was not required to oversee or provide any further assistance with
appointment scheduling to Ms Mikic.
[10] Mrs Whiffen’s performance appraisal on 18 January 2023 saw no concerns raised. Mrs
Whiffen asked Mrs Parahi for a review and reassessment of job roles due to her heavy workload.
On 26 January 2023, Mrs Parahi began preparing a document headed “Our expectations from
our administration team”. The document set out the respective roles of the Parahis, Ms Mikic
and Mrs Whiffen.
[11] On 7 or 21 February 2023 (the precise date is not established), the administration team
met to discuss their respective roles and responsibilities. Mrs Parahi led the meeting, reading
from her prepared document but without giving a copy to each person. Mrs Whiffen found the
meeting confronting, particularly when the issue of her entering a clinical appointment and the
potential consequences of this action was raised in front of Ms Mikic. She became quite upset.
[12] On 16 March 2023, Ms Mikic and Mrs Whiffen were both busy. Ms Mikic was having
difficulty with an invoicing issue and emailed Mrs Whiffen, asking if she could take on the
invoicing until the new OT’s provider number was received. Mrs Whiffen resisted. She could
not understand how Ms Mikic was confused, as they had been through the issue previously.
She copied instructions that had previously been given to Ms Mikic in a ‘Slack’ conversation
and responded by asking Ms Mikic to invoice as normal, suggesting a slight adjustment if it
was required. Ms Mikic reiterated her confusion and said she didn’t really have time to keep
questioning accounts things that week. She again asked Mrs Whiffen to take on the invoices for
now. Mrs Whiffen did not agree to the request. After explaining her concerns and giving a
further instruction, she wrote: “I understand you’re busy, believe me I am too. But could you
please continue to them [sic] invoice as normal?”
[2023] FWC 2516
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[13] Mrs Parahi was copied into the email exchange above. She intervened and asked Mrs
Whiffen to take on the invoicing as requested. She wrote that the back and forth was not within
what they had discussed at length regarding “our values”. She then asked:
“In the meantime I would like to be CC’d in to all communications between yourselves
and between clinicians. I am doing this because as has been communicated we are a
values based business that values culture and I’m concerned with the direction that these
conversations are taking. Discuss it with me directly if you’re not keeping up with
workload.”
[14] Mrs Whiffen acknowledged the request and apologised that the communication had
gotten out of hand. Ms Mikic also apologised for how she had worded her request to Mrs
Whiffen.
[15] On 5 May 2023, Ms Mikic sent an email to Mrs Whiffen as part of their usual handover.
She told Mrs Whiffen that she had been thinking about the approach to CSAs, something they
worked on together that was mostly within Mrs Whiffen’s responsibility. She also wrote, in
relation to sports invoicing:
“I really appreciate your help in the busy times, but when not mass scheduling I have
time. If it’s really hectic and I can’t get around to them, I’ll let you know before you
clock off. Is that okay with you?”
[16] Mrs Whiffen replied on 9 May 2023 with a note to say that they could discuss or confirm
the process at their next “Admin meeting” scheduled for 23 May 2023.
[17] On 2 June 2023, Ms Mikic sent an email to Mrs Whiffen with a draft Admin meeting
agenda and attachments for 6 June 2023, including an attachment about the approach to CSAs.
During and immediately prior to the Admin meeting that followed on 6 June 2023, agreement
was reached between them that Ms Mikic would take over Holiday Groups to ease Mrs
Whiffen’s workload. Mrs Whiffen sent Ms Mikic a spreadsheet for use with Holiday Group
bookings and confirmations. She explained that it was incomplete and asked if Ms Mikic
wanted her to update it. Ms Mikic said, in words to the effect: “No, just give me what you’ve
got and I can take it from here”. They went into the Admin meeting and explained their
agreement to Mrs Parahi. Mrs Parahi was supportive and confirmed the separation of duties.
[18] On 13 June 2023, Mrs Whiffen was working from home. She messaged Ms Mikic and
said to let her know if she needed any help. She later messaged asking if they could “take a
moment together to double check our Holiday confirmations are up to date”. She said she was
happy to follow up or action any required, and just needed to confirm what was outstanding.
Ms Mikic responded to say that the “holiday biso” was all up to date and that Mrs Whiffen
could “cross it off” her list as she was “on top of it for now”.
[19] On 15 June 2023, Ms Mikic circulated a handover for the previous day and a draft
agenda for the next Admin meeting. The handover included a note to the effect that she had
“100% cross-checked” the Holiday Groups and that Mrs Whiffen had nothing to worry about,
that Ms Mikic was across it and would let her know if she needed help. Mrs Whiffen responded:
[2023] FWC 2516
4
“Sorry I want to leave this with you however in booking someone in I noticed Ethan was
missing from Cliniko & then a few others. Could we please confirm where everyone is
at via the spreadsheet?
I’ve not followed up OT confirmations or client confirmations for a while, so I just need
to check if you have… I just don’t want to miss anyone by assuming the other person
has attended to it.
Cliniko numbers now match the Snapform list (below and copy printed) we just need to
establish if all the below have been confirmed by OTs and clients have received
confirmation of their booking. Perhaps give the OTs the printout??”
[20] Ms Mikic responded, including to say:
“It’s obvious you have a better grasp on this, would you prefer to take the process back
rather than have me doing this?”
[21] In reply, Mrs Whiffen suggested a reversal of the agreement of 6 June 2023. She wrote
to Ms Mikic that they could “split tasks as follows for the remainder of term”, where Ms Mikic
would take on Sense Rugby enquiries and Mrs Whiffen would do Holiday Group enquiries.
She then wrote:
“I’d love to say I will do it all, but I’m honestly feeling burnt out these days, especially
with Ryan travelling so much. I hope the above will work for you, please feel welcome
to give me a buzz if you want to have a quick chat x”
[22] Ms Mikic replied:
“The reason we split things & I offered & you agreed, for me to take Holidays on & you
continue with SR was due to the above. & you are more familiar with SR. I’m happy &
capable of continuing to do so & would actually prefer to stick with our agreement if
I’m honest. But if it’s really grating on you, I’m fine to do what you’ve asked instead.”
[23] Mrs Whiffen replied:
“Ok, I’ll leave Holidays with you as requested. Sorry I needed to bring up the missing
clients in Cliniko as I didn’t want families to miss out or groups to become overbooked.
I can’t help my Hawk Eyes!”
[24] Ms Mikic replied:
“How about giving Hawk Eyes a rest, particularly while you’ve go [sic] so much on home
& here. If mistakes happen & I don’t pick them up so be it, won’t be the endo f [sic] the
World.”
[25] This exchange was upsetting to Ms Mikic. The next Admin meeting was scheduled for
20 June 2023 but Ms Mikic did not want to meet with Mrs Whiffen. On the morning of 20 June
2023, she wrote to Mrs Parahi complaining about the “continued interference & hypocracy [sic]
[2023] FWC 2516
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with” the Holiday Group bookings from Mrs Whiffen. She separately sent Mrs Parahi and Mrs
Whiffen a message to ask if the meeting could be postponed to either Thursday or the following
Tuesday.
[26] Unaware that Ms Mikic was upset, Mrs Whiffen replied to say:
“Hey Carla,
Carlien is in NZ next week, then it’s Holiday Groups, so I think it’s important we catch
up today. I’ll keep you posted how I’m travelling.
Bec”
[27] Ms Mikic responded:
“Thanks Bec, but as we agreed two weeks ago, you handed over the Holiday Groups
reigns to me completely, therefore I’d prefer to discuss Holiday Groups directly with
Carlien.
I’ll pass on any information to you that is relevant.”
[28] Mrs Whiffen did not see this last response, as she had an appointment for her child and
was then on her way to the office. When she arrived, she saw Ms Mikic leaving. Ms Mikic told
her that she was stepping out until Mrs Parahi was ready. Mrs Whiffen proceeded to set up for
the Admin meeting in the afternoon at approximately 1.00pm or 1.30pm and waited for the
others. Mrs Parahi arrived and told her that the meeting would be going ahead without Ms
Mikic.
[29] Mrs Parahi proceeded to tell Mrs Whiffen that she was being issued with a warning for
not following processes. She acknowledged the absence of malicious intent but said that Mrs
Whiffen’s actions were considered bullying, for following up and not trusting her co-worker.
Mrs Parahi also said she would look into arranging mediation for Mrs Whiffen and Ms Mikic.
In the context of recent discussion about Mr Whiffen’s new business and its potential effect on
Mrs Whiffen’s availability for work, she asked Mrs Whiffen: “Do you really want to be here
anymore?”
[30] Mrs Whiffen responded by saying that she loved her job and had no intention of leaving.
She was open about her future intentions, including potentially dropping a day in 2024. She
became anxious and had difficulty breathing, and Mrs Parahi got her a glass of water. Once
calm, Mrs Whiffen apologised for any alleged non-compliance and said that her only intentions
had been to confirm that her unfinished bookings had not accidentally been overlooked.
[31] Mrs Parahi asked Mrs Whiffen, in words to the effect:
“Don’t you trust us? Don’t you think Jesse and I know how to run a business?”
[32] Mrs Whiffen again said that she only had best intentions at heart and that because of
their friendship, she felt a strong passion to look out for them and the company. She asked Mrs
[2023] FWC 2516
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Parahi to retract the warning with her assurance that she would “stay in her lane”. Mrs Parahi
did not agree to the request.
[33] After the meeting, Mrs Whiffen came across Ms Mikic in the clinic and apologised. She
said that her checking of bookings was never meant to come across in a mean or untrusting
way. Ms Mikic replied, in words to the effect: “You need to pull your head in” and “Don’t you
think I care about the clients too?”
[34] On 21 June 2023, Mrs Whiffen was working at the front desk when she received
multiple enquiries about a client email to the effect that Holiday Group bookings were “filling
up fast”. There was an issue with the link in the email, so Mrs Whiffen tried to fix it. She then
told Mrs Parahi what she had done and asked if she should respond to the various client
enquiries or leave them for Ms Mikic the next day. Mrs Parahi responded by copying her in on
a message to Ms Mikic allocating the task.
[35] At 5.34pm on 21 June 2023, Mrs Whiffen sent a handover email to Ms Mikic:
“HOLIDAY GROUPS – Carlien sent reminder text, calls/texts received as issues
selecting boxes on intake (now fixed). As per Carlien, I’ve left dashboard texts for your
response.
The below clients phoned to confirm their group selections:
- [content omitted] …”
[36] At 5.41pm on 21 June 2023, the promised warning letter was sent by Mrs Parahi to Mrs
Whiffen through its third-party software program, Happy HR. The warning went to her “non-
focused emails” and she did not see or read the letter until the following morning. The letter
summarised the meeting of 20 June 2023 about her not completing set processes as required,
despite many conversations about how the role was split (giving the example of the Slack
conversation on 15 June 2023 about Holiday Groups). The warning letter stated:
“This was discussed as inappropriate and has been discussed in 2 meetings previously.
Carlien discussed that there is no need to complete tasks or roles or follow up with
anyone when this has [sic] not in Rebecca’s job roles. To confirm, Rebecca’s roles are
to:
- Manage accounts
- Manage Sense Rugby/AFL sign ups and enquiries.”
[37] On the morning of 22 June 2023, Mrs Parahi, Ms Mikic and Mrs Whiffen emailed each
other about the email link error of the previous day. Ms Mikic asked about whether it had
happened before and Mrs Parahi replied that it was fixed as she had redone the question. Ms
Mikic asked for more information and Mrs Parahi replied to say that she was not sure what
happened but that she just redid it altogether. Mrs Whiffen chimed in:
“I went into it yesterday to try to damage control (sorry if I overstepped, I felt it was
warranted given the flood of calls I was receiving) there was an extra question box (re
Art) within the multiple selection choices. I deleted the extra question box.”
[2023] FWC 2516
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[38] On 26 June 2023, Mrs Whiffen was again on reception. She was asked by two clients to
make a Holiday Group booking before they missed out. She asked the OTs on duty if this was
okay and then made the bookings for them with a note “intake pending”. She also resent the
intake link so they could confirm their booking asap. In her morning handover email to Ms
Mikic the next day, she detailed what she had done in relation to Holiday Groups.
[39] At 11.03am on 27 June 2023, Ms Mikic wrote to Mrs Parahi complaining about Mrs
Whiffen’s interference in relation to Holiday Groups.
[40] At 11.39am on 27 June 2023, Mrs Parahi sent an email to Mrs Whiffen in relation to the
handover email of 26 June 2023:
“Hi Bec,
Unsure why these holiday bookings were completed by yourself after our conversations
last week and formal process around holiday groups? Really thought it was clear.”
[41] Mrs Whiffen replied, explaining what she had done and why. She apologised if it was
too much and said that she thought it was okay as she was there with the clients in person while
she did it at their request. She said she felt sick to the stomach and was shaking thinking that
she had disappointed Mrs Parahi again. She wrote: “If overstepping I really do apologise, I will
advise clients they will need to wait for Carla in future, they just didn’t want to forget or lose
the spots.”
[42] Mrs Parahi replied:
“We discussed clearly:
- Any holiday group enquiries are passed on to Carla without confirmation, changes
on Cliniko or the spreadsheets.
Groups will not fill up if Carla manages it because the enquiries is handled by 1 person
and can be confirmed one at a time without any confusion so losing spots is not a threat.
It is not about disappointing me or clients. It is about not engaging with the processes
clearly set up after many discussions about this and a formal warning.
Can we have a meeting regarding this on Thursday at 10.30?”
[43] Mrs Whiffen replied:
“Apologies, I genuinely thought it was ok to add to group as I was following OTs
instructions, and I thought I was doing right by the client’s direct request.
I mustn’t have taken away the full understanding of below from our meeting last week,
I honestly don’t recall being advised of point number one, although I was rather upset
[2023] FWC 2516
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at the time so perhaps it was discussed but my head was obviously a little clouded at the
time.
In reading the below in writing, it does make it clear the reasonings to have enquiries
handled by one person.
All future enquiries (regardless of in person) will be referred directly to Carla and I will
take no further action as per below instructions.
If you want to discuss further, I can meet with you on Thursday.”
[44] Mrs Parahi responded to say that she would still like to meet on Thursday.
[45] On 29 June 2023, Mr and Mrs Parahi met with Mrs Whiffen. Mrs Whiffen was told that
her employment was terminated. She asked them to reconsider, questioning their reasoning and
apologising again.
[46] On 30 June 2023, Mrs Parahi issued a letter of termination to Mrs Whiffen through the
“Happy HR” platform. The reason for termination was “due to continuous lack of engagement
with set processes and procedures, concerns regarding conduct towards other staff members in
the team and completion of roles specifically requested not to.”
[47] Approximately one month later, Mrs Whiffen was paid outstanding wages and
entitlements, including 2 weeks wages in lieu of notice.
Was the dismissal consistent with the Small Business Fair Dismissal Code?
[48] At the time of dismissal, Mrs Whiffen was one of 9 employees employed by Sense
Rugby. While Sense Rugby also has franchise relationships with other entities, there is no
evidence that these are associated entities. Accordingly, Sense Rugby was a small business
employer for the purposes of the Act at the relevant time.
[49] The Small Business Fair Dismissal Code (the Code) applies to small business
employers. Because Mrs Whiffen was not dismissed for serious misconduct, the Code applies
as it relates to “other dismissal”:
“Other Dismissal
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
[2023] FWC 2516
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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.”
[50] The difficulty for Sense Rugby is that while it gave Mrs Whiffen a warning about her
conduct in relation to “not completing set processes as required, despite many conversations
about how the role was split”, it never told her that she was at risk of being dismissed if there
was no improvement in her conduct. The closest the business came was telling Mrs Whiffen
that her failure to follow instructions would lead to “performance management”, was “serious”
and could have “serious consequences”. This was not sufficient for the purposes of consistency
with the Code because it did not raise the prospect of dismissal directly.
[51] I am satisfied that the dismissal was not consistent with the Code.
Was the dismissal harsh, unjust or unreasonable?
[52] Whether a dismissal was harsh, unjust or unreasonable depends on an assessment of all
the relevant facts and circumstances, including those set out in section 387 of the Act. Those
are considered in turn.
Was there a valid reason for the dismissal related to capacity or conduct, and was it notified to
Mrs Whiffen?
[53] Ms Whiffen’s conduct in repeatedly failing to do as she had been asked and overstepping
the boundaries that had been set for her was a valid reason for the dismissal. This included
entering a clinical session after having been told directly that this was not acceptable, and
continually checking Ms Mikic’s work in relation to the Holiday Groups after it was made clear
that this was not appropriate and not her responsibility.
[54] I accept that in doing so, Mrs Whiffen had no malicious intent. She genuinely thought
she was acting in the best interests of the business. But it was not Mrs Whiffen’s role or
responsibility to decide for herself what was best for the business in terms of the work that she
performed, particularly where her decisions conflicted with instructions she had been given.
Mrs Parahi had both this role and responsibility, and she communicated clearly with Mrs
Whiffen about what she did not want Mrs Whiffen to do. Mrs Whiffen acknowledged these
requests from Mrs Parahi, but she did not take the necessary steps to change her behaviour.
[2023] FWC 2516
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[55] I do not agree that Mrs Whiffen’s failure to act on these requests were trivial, or minor
issues. The submission illustrates a lack of insight on the part of Mrs Whiffen in relation to her
conduct and its effect on others. I also do not accept that Mrs Whiffen was only trying to
complete her own “incomplete” handover in relation to the Holiday Groups. This was an offer
made to Ms Mikic by Mrs Whiffen that had been politely refused. Mrs Whiffen’s subsequent
interventions in relation to Holiday Groups after 6 June 2023 were of substance, including on
13 June 2023, when she proposed double checking Holiday confirmations and offered to follow
up or action “any required” or “outstanding” and on 15 June 2023, when she entered a booking,
looked through “Cliniko” to check the other entries were up to date, and suggested further
actions that Ms Mikic should take in this regard. On 26 June 2023, she entered two more
bookings into the system rather than leaving them for Ms Mikic. These interventions caused
significant distress to Ms Mikic by undermining her work and sense of self. They also caused
an unnecessary diversion of the small business’ limited resources.
[56] The valid reason for dismissal was notified to Mrs Whiffen in the meeting on 20 June
2023 when she was told she would be given a warning, in the warning letter of 21 June 2023,
during the subsequent meeting on 29 June 2023 and in the termination letter of 30 June 2023.
Was there an opportunity to respond to any capacity or conduct related reason?
[57] It was the fact of dismissal, rather than the reason for it, that surprised Mrs Whiffen
when she was told she was to be “let go” on 29 June 2023. Before then, on and from 6 June
2023, Mrs Whiffen was on notice of the concern about her overstepping of boundaries and had
a meaningful opportunity to respond to the concern by leaving the Holiday Group work for Ms
Mikic. There was ongoing dialogue about the need for Mrs Whiffen to “stay within her lane”:
in late 2022 when she was asked not to assist Ms Mikic any more with scheduling duties; and
again in February 2023, in the meeting about respective roles and responsibilities. Mrs Whiffen
knew when she was overstepping and made comments to Ms Mikic to the effect that she would
probably “get into trouble”, but she did not correct her behaviour. She apologised, but only
when confronted with her behaviour by Mrs Parahi.
Was there any unreasonable refusal to allow a support person to be present to assist at any
discussions relating to dismissal?
[58] There was no unreasonable refusal to allow Mrs Whiffen to have a support person to
assist in discussions about the dismissal. There was no request for a support person, partly
because Mrs Whiffen was not told ahead of the meetings on 20 or 29 June 2023 that they were
disciplinary in nature.
Was Mrs Whiffen warned about relevant unsatisfactory performance?
[59] The matters of concern in relation to Mrs Whiffen were conduct, rather than
performance, related. Even so, Mrs Whiffen was warned about the conduct that ultimately led
to her dismissal.
[2023] FWC 2516
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Degree to which the size of the employer’s business and any absence of dedicated human
resources management specialists or expertise in the business would be likely to impact on
procedures followed in effecting the dismissal
[60] The size of the business, and the absence of dedicated human resources expertise, caused
deficiencies in the process leading to dismissal. Sense Rugby relies on a subscription-based
human resources software program known as “Happy HR”. The subscription taken up by Sense
Rugby includes technical support but not tailored human resources advice or support. This
means that its effectiveness as a human resources tool is constrained by the knowledge of the
user. It seems that Happy HR was also the source of template policies and procedures that could
be adapted for use by the subscriber, and that Sense Rugby drew on the software to produce its
“Performance and or behavioural improvement plan policy”, although its contents are
expressed as “an outline of best practice” rather than a formal policy of the business.
[61] Mrs Parahi was responsible for managing the disciplinary process in relation to Mrs
Whiffen. She used Happy HR for some aspects of the process, including the issue of a warning
letter and preparation of the termination letter. But there is no reason why Mrs Whiffen could
not have been put on notice that the meetings on 20 and 29 June 2023 were disciplinary in
nature. There were also things Mrs Parahi said would happen that did not happen: arranging
mediation between Ms Mikic and Mrs Whiffen, and getting human resources involved after the
warning on 20 June 2023.
[62] These latter failures are explained by the further conduct of Mrs Whiffen on 26 June
2023, which caused Sense Rugby to change its approach. However, company policies exist for
a reason. The steps Sense Rugby took after this time were not in accordance with its own Code
of Conduct policy, which says, in relation to Code of Conduct breaches, that they “will be dealt
with in accordance with the company performance management process”. Assuming that to be
what is set out in the Performance and/or behavioural improvement plan policy as “best
practice”, the process was not followed. If it had been, it is likely I would have found the
dismissal to be consistent with the Small Business Fair Dismissal Code.
Other relevant matters
[63] Mrs Whiffen was employed for approximately 2 years and 3 months. She was paid 2
weeks wages in lieu of notice of termination, but her final pay was not made until approximately
1 month after dismissal. Not only was this in breach of the National Employment Standards
(Act, s.117), it had adverse financial consequences for Mrs Whiffen as it meant she could not
rely on the income she had counted on during the period of delay.
Mrs Whiffen has been unfairly dismissed
[64] While there was a valid reason for dismissal and adequate opportunity for Mrs Whiffen
to respond to Sense Rugby’s concerns, the process followed in relation to the dismissal was
deficient and there was a failure to comply with the Act in relation to payment of entitlements
on termination. On balance, I am satisfied that the dismissal was unreasonable.
[65] Mrs Whiffen has been unfairly dismissed.
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Remedy
[66] I am satisfied that reinstatement is inappropriate in this case. The small business
environment and a rupturing of relationships both personal and professional makes it most
unlikely that a productive employment relationship can be restored. Directions will instead
issue in relation to whether compensation is appropriate in all the circumstances of the case,
and if so, the amount of compensation that should be awarded.
COMMISSIONER
Appearances:
R Whiffen on her own behalf.
C Parahi for the respondent.
Hearing details:
2023.
Sydney:
September 25.
Printed by authority of the Commonwealth Government Printer
PR766700
WORK R WORK MMISSION THE F AUSTRALIA THE SEAL
