[2014] FWC 644

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Judith Wilkinson-Reed
v
Launtoy Pty Ltd T/A Launceston Toyota
(U2013/12547)

COMMISSIONER DEEGAN

CANBERRA, 24 JANUARY 2014

Application for relief from unfair dismissal

[1] On 13 August 2013 Judith Wilkinson-Reed (the applicant) lodged an application under s.394 of the Fair Work Act 2009 (the Act) alleging that she had been unfairly dismissed by Launtoy Pty Ltd trading as Launceston Toyota (the respondent). As the matter was unable to be resolved at a conciliation conference conducted on 29 September 2013, it proceeded to a determination hearing.

Background

[2] The applicant was employed by the respondent from 2 January 1995 until her employment was summarily terminated on 7 August 2013. At the date of her dismissal she held the position of Human Resources Manager.

[3] On 5 August 2013 the applicant was provided with a letter by the respondent, signed by the Dealer Principal, Sam Nixon, noting that ‘areas of concern’ in relation to her employment had been brought to the respondent’s attention. These were described as follows:

1. Despite specific instructions to the contrary you discussed work matters with a shareholder of the business. This is evidenced by

2. You breached your contract of employment in that you

[4] The letter also requested the applicant attend a meeting to respond to those concerns.

[5] At the meeting, which took place on 7 August 2013, the applicant was accompanied by a support person. After the meeting the applicant was given a letter of termination, 2 signed by the Dealer Principal, stating that he had determined, on balance, that the concerns set out in the letter of 5 August were ‘founded.’ Further the letter stated that ‘(s)uch disclosures and breach of your contract constitute serious misconduct which is unacceptable, contrary to our expected standards of conduct, and a breach of the requirements of the company.’

[6] The applicant’s employment was terminated summarily with effect that same day.

The Applicant’s Evidence

[7] It was the applicant’s evidence 3 that Sam Nixon came to the dealership as Dealer Principal in October 2010. The applicant had held the position of Human Resources Manager with the dealership since 2000.

[8] According to the applicant over time her relationship with Mr Nixon deteriorated for a number of reasons including:

• His decision to remove from her a number of the human resources responsibilities, including recruitment, leaving her with mainly payroll and inductions;



• Moving her from a private office into a work station outside his office; and



• His treatment of a number of other employees.

[9] It was the applicant’s evidence that on 26 May 2013 the applicant was contacted by Mr Nixon’s wife, Megan, with whom she had a close relationship  4 and who was in a distressed state as she had discovered that Mr Nixon had been having an affair for the previous twelve months. The applicant was sympathetic and told her to get in touch any time she needed to. On the following day Mrs Nixon rang the applicant to ask her if she knew anything about a car that the dealership was about to deliver to the person with whom Mr Nixon was having an affair. The applicant told her that she did not know anything about it.5

[10] Later that morning Mr Nixon telephoned the applicant and asked her if his wife had contacted her. She told him that she had and was asked ‘in what context.’ The applicant told him that Mrs Nixon had asked about the vehicle and Mr Nixon had advised her that Mrs Nixon was not a director of the company and that she was not to discuss the vehicle deal, or any other confidential business matters, with her. 6

[11] It was the applicant’s evidence that she had a number of conversations with Mrs Nixon after this but at no time discussed business matters with her. Shortly after, Mrs Nixon moved with her children to Victoria.

[12] In the week commencing 15 July the applicant had to take her husband to the hospital emergency department where he was admitted. She was unable to attend work until 17 July and had informed Mr Nixon of the reason, receiving no response. When she returned to work on 17 July the applicant was upset that Mr Nixon did not show any concern for her husband’s well-being.

[13] On Friday 19 July the applicant sent Mrs Nixon a personal message on her Facebook page. It was her evidence that she was angry and upset with Mr Nixon’s attitude and that her message to Mrs Nixon was ‘fairly vitriolic.’ 7 She told Mrs Nixon the views of some staff members about her husband, and recounted an incident where, according to the applicant, Mr Nixon had ignored a staff member when the staff member said good morning to him. The conversation continued:

Applicant: Another thing, Sam is dead keen for all of the staff here to complete the Toyota Engagement Survey (obviously because he thinks everyone loves him). Anyway he’s told me I have to push it with all the staff and the ones I’ve spoken to are saying that they can’t wait to be able to tell Toyota anonymously what they think of him. He’s going to get the biggest shock!

Mrs Nixon: Yayyyy, I am not at all a vindictive person, but gosh I hope everyone tells the truth, he’s so awful, so awful to every single person we knew. I will never tell anyone because that is not fair. Let’s hope and pray he gets his due course.

Applicant: I am quite sure everyone knows his disdain for them; he might think he does not show it. A lot of people put up with him just because of you!! Damian told me months ago he’s called ‘tosser’ by most in the motor vehicle world in Lonnie. 8

[14] According to the applicant on 2 August 2013 Mr Nixon accessed his wife’s Facebook page without her knowledge. On 5 August he called the applicant into his office and provided her with the letter. He informed her that he had a serious issue concerning her discussing confidential information with a shareholder and requested she attend a meeting on 7 August before having her escorted from the building. When the applicant sent Mr Nixon a text message asking for details of the confidential information, he sent an email stating that it was a Facebook conversation dated 19 July.

[15] At the meeting on 7 August 2013 Mr Nixon attended with his ‘advocate.’ The applicant claimed that she was informed that she had not followed Mr Nixon’s instruction not to talk to his wife. The applicant responded that she had not been told to refrain from talking to Mrs Nixon but that she was not to talk to her about the car she enquired about, or about business matters.

[16] At the hearing the applicant stated that she had believed that her Facebook chat with Mrs Nixon was private and that she had not received a direction that she was not to talk to Mrs Nixon at all. Further it was the applicant’s evidence that at the meeting on 7 August she had been shown telephone records of phone calls between herself and Mrs Nixon and accused of divulging confidential business information in those calls. The applicant stated that she had no idea what information was being referred to and responded that she had not divulged any such information.

[17] Under cross-examination the applicant agreed that she had had a conversation with another employee about Mr Nixon and that narcissistic personalities were discussed. She noted that the conversation did not take place in the workplace but agreed that she had mentioned it in an email to Mrs Nixon. She conceded that the respondent’s social networking policy 9 stated that employees should not make derogatory comments about the respondent, their colleagues, customers or suppliers on the internet. She agreed that Facebook is on the internet, but noted that Facebook chat was private, and the email of 23 July was sent from her private account. She did not believe the policy related to private emails and personal and confidential chats

[18] When cross-examined about her claim in the Facebook message that Mr Nixon had ‘taken a dislike’ to another employee, Sharon, the applicant stated that she had overheard, Sharon telling other employees about Mr Nixon’s attitude to her. She later asked Sharon if she wanted to take the matter further and Sharon had replied absolutely not. It was for this reason that the applicant did not take the matter further and did not believe it was her duty as HR Manager to take it any further in the circumstances. Similarly it was the applicant’s evidence that she did not communicate to Mr Nixon the views she had heard expressed by other senior managers as she did not believe it was her place. She reiterated that it was her opinion that Mr Nixon held in disdain everyone at Launceston Toyota. She denied, however, that she considered Mr Nixon was ‘a tosser’ and stated that she was merely repeating to Mrs Nixon what another manager had told her about the way Mr Nixon was regarded in the industry.

[19] The applicant agreed that it was company policy that employees not use their mobile phones during working hours. She stated that she sometimes had to take business calls on her phone and that most people in the workplace took calls on their phones during the day. It was also the applicant’s evidence that some of the calls with Mrs Nixon were made during the lunch hour or when she was visiting her mother in her nearby nursing home in approved absences during working hours.

[20] Evidence was given for the applicant by Megan Nixon, Mr Sam Nixon’s estranged wife. In her statement of evidence, Mrs Nixon claimed that her Facebook account was private and that she had not given her password to any other person. Further, on 2 August she noticed that someone had entered her Facebook page and changed her marital status from single to married. She did not know how this happened. On 7 August she had been told by the applicant that the applicant had been dismissed from her employment and that Sam Nixon had shown her a copy of a private conversation she had had with her on Facebook. Mrs Nixon then realised that Sam Nixon had entered her Facebook account without her knowledge and that he was responsible for changing her marital status.

[21] Under cross-examination Mrs Nixon denied having given her husband her Facebook password and stated that the applicant did not tell her anything about the car that was purchased by the woman with whom her husband was having an affair. She also claimed that the sales manager had given her the details of the financial arrangements for the car.

[22] It was also Mrs Nixon’s evidence that it had been her belief that she was a director of the company that managed the family trust which owned part of the respondent.

[23] Evidence was also given by Jason Crera, the applicant’s support person at the meeting held on 7 August. Mr Crera had prepared ‘minutes’ of the meeting and these were tendered in evidence. 10 At the hearing it was conceded that the ‘minutes’ only partially set out the contents of the meeting and were also heavily annotated by Mr Crera with matters of his opinion and commentary of what occurred.

[24] The final witness for the applicant was Stephen Pinkerton, an employee of the respondent for the past 8 years. It was his evidence 11 that the management style at the respondent had changed since Mr Nixon became dealer principal and Ed Jones became General Manager. He stated that the management style had become one of aggression and intimidation. He also claimed that Mr Nixon would often not talk to him for weeks at a time and that there were a lot of unhappy staff members.

[25] It was Mr Pinkerton’s evidence that the applicant was well respected in the workplace. It was his opinion that the applicant could return to work as the all the staff were able to do their jobs in a dysfunctional environment.

The Respondent’s Evidence

[26] Mr Samuel Nixon, Dealer Principal, was the main witness for the respondent. In his statement 12 he claimed to own a 39% share in the business and to be the only shareholder with an operational role.

[27] It was the evidence of Mr Nixon that on 27 May three managers were given verbal instructions not to communicate with his wife as he was concerned that, as a result of marital difficulties, she might contact them seeking information to which she was not entitled. He noted that his wife is ‘a non-operational shareholder of the share that Vandervord Jane Pty Ltd AFT Nixon six trust business has in Launceston Toyota.’ 13

[28] According to Mr Nixon, he had access to his estranged wife’s Facebook account and, as a result, became aware of a conversation that had taken place between his estranged wife and the applicant. It was Mr Nixon’s claim that this conversation was in breach of the respondent’s social media policy and also breached the instruction that he had given to the applicant that she not speak to his estranged wife. It was also his view that in mentioning other staff members in the conversation, she was breaching confidentiality. 14 A letter was provided to the applicant on 5 August 2013 advising the applicant that she would be stood down until a meeting was held on 7 August to discuss the allegations. On 6 August further information about the substance of the allegations was provided, at her request, to the applicant.

[29] At the meeting on 7 August the applicant attended with her support person, Mr Crera. Mr Nixon and an industrial relations advisor attended for the respondent.

[30] Mr Nixon claimed that during the course of this meeting the applicant was asked about the Facebook conversation she had had with Mr Nixon’s estranged wife on 19 July 2013. The applicant was also questioned about an email she had sent to Mr Nixon’s wife on 23 July 2013 which Mr Nixon believed was sent from the applicant’s work computer during working hours. The email mentioned both Mr Nixon and another staff member of the respondent.

[31] It was Mr Nixon’s evidence that the applicant ‘accepted the evidence and allegations of breaches of confidentiality and direct instructions from the Dealer Principal’ and offered no defence.

[32] The meeting was adjourned and Mr Nixon discussed the matter with his advisor. After these discussions Mr Nixon decided that he would summarily terminate the applicant’s employment as based on the applicant’s experience, her role and the severity of the breaches, he considered her actions constituted serious misconduct. He dismissed the option of issuing a warning or terminating the applicant’s employment with notice.

[33] In his statement Mr Nixon also denied a number of claims made about him by the applicant, including claims about his treatment of her and other members of the staff. He also denied that the respondent had a dysfunctional workplace.

[34] At the hearing it was Mr Nixon’s evidence that the staff satisfaction survey had been completed but that he was unaware of the outcomes. He also noted that the applicant’s workers’ compensation claim had been rejected by the provider that week, and that payments had stopped. It was also his evidence that he had an app on his phone which contained all his passwords and a number of passwords given to him by his wife during their marriage, including her Facebook password.

[35] When cross-examined Mr Nixon admitted that he had accessed his estranged wife’s Facebook page and altered her marital status from single to married. 15 He also stated that he had reversed the change. He conceded that he used the respondent’s email and internet account to undertake personal communications with his wife. He stated that the applicant was not sacked for her personal use of the email account but for the content of the emails. The witness was unable to recall ever ignoring any employees.

[36] When it was put to Mr Nixon that he had never instructed the applicant that she was not to speak to his estranged wife he strongly disagreed. He denied that he had only told the applicant not to discuss confidential information with his wife but conceded that that had been part of the conversation. After further questioning, Mr Nixon stated that he had said to all three managers, including the applicant, that he expected that his wife might contact them and that if she did they were ‘not to discuss any confidential business matters’.

[37] Mr Nixon was asked whether the company policy about the use of the company internet and telephone applied to him. He reiterated that the applicant was not sacked for the use of the company resources but for the content of the communications.

[38] The witness was questioned about a claim made in the letter given to the applicant on 5 August that she discussed work matters with a shareholder of the business and breached her contract of employment by disclosing and communicating confidential information and failed to act in good faith. It was put that the terms of the letter indicated that the witness had already made up his mind that the applicant was guilty. Mr Nixon denied this.

[39] When asked why the letter referred to his estranged wife as a shareholder of the business Mr Nixon responded that she is a beneficiary of the family trust but that she is not a shareholder in the business.

[40] It was the evidence of Mr Edward Jones, General Sales Manager of the respondent since March 2012, that on 27 May he was given an instruction by Mr Nixon to be aware that his wife, Megan, might contact him looking for information. Mr Jones stated that Mr Nixon’s instruction was that if Megan sought information regarding the business, or him, it was not to be discussed with her. Mrs Nixon did contact him and it was Mr Jones’ evidence that he provided her with no information. He then chose not to answer or return Mrs Nixon’s calls.

[41] Mr Robert Symes, the Financial Controller for the respondent since 2004, also stated that on 27 May 2013 he had been given an instruction by Mr Nixon not to discuss any business or other issues with his wife, should she attempt to contact him. He further stated that he understood and complied. Later that day Mr Symes showed Mr Nixon a missed call from Mrs Nixon that had been received on his phone that day, ‘as evidence that (he) had not taken her call.’ 16

Submissions for the applicant

[42] The applicant lodged written submissions (in the form of an advice from her representative). The submission relied on the decisions in Rose v Telstra 17 and Blyth Chemicals18 for the proposition that an employee’s conduct out of hours will only have an impact on their employment to the extent that it can be said to breach an express or implied term of the contract of employment, including a breach of the employee’s implied duty of fidelity and good faith. It was argued that, in the circumstances of this case, where the conduct complained of occurred in private it could not be sufficient to justify summary dismissal.

[43] It was put for the applicant, that a decision needed to be made as to whether personal electronic communications between two people should be taken into consideration at all when making a determination about an employee’s conduct. It was noted that the case did not involve wilful public statements. Additionally, the content of the direction, given by Mr Nixon to his managers about their communications with his estranged wife, was not clear and there was no evidence of any breach of contract in the sense of confidential information being released to Mrs Nixon or anyone else.

[44] The applicant’s representative referred to the decision of a Full Bench of the AIRC in Applicant v Respondent 19 in support of the proposition that it is only in exceptional circumstances that an employer has a right to extend any supervision over the private activity of employees.

[45] It was the submission of the applicant’s representative that the correspondence between Mrs Nixon and the applicant was private and became public only when accessed by Mr Nixon, without the knowledge of his estranged wife.

[46] Finally it was argued that the applicant had been employed by the same organisation for in excess of 18 years and had, until the circumstances surrounding the dismissal, a clean record. Further it was argued that, in all the circumstances, there was no bar to reinstatement.

Submissions for the Respondent

[47] Written submissions had been filed by the respondent. It was argued that the conduct of the applicant constituted serious misconduct justifying summary dismissal. In this respect the conduct relied upon was the applicant contacting Mrs Nixon in breach of Mr Nixon’s direction that she was not to speak to her. The respondent relied on telephone records of phone calls between the applicant and Mrs Nixon on 27 May for periods of between 6 minutes and 8 minutes 11 seconds.

[48] It was argued for the respondent that it was reasonable to give an employee instructions not to talk to another person, although that might not extend to after-hours conversations. It was put that within hours of being given an instruction by Mr Nixon not to talk to his wife the applicant spent almost half an hour talking to her on the telephone.

[49] In addition to those submissions the respondent’s representative noted that any suggestion that Mr Nixon had illegally accessed his estranged wife’s Facebook account had been refuted by the evidence as it was clear that Mrs Nixon had, at some time, given her husband the password for her account. It was put that the comments made by the applicant on the Facebook account breached the respondent’s social media policy, which prohibited the making of offensive or derogatory comments about work colleagues.

[50] The respondent’s representative referred to the decisions of Rose v Telstra 20 and Fitzgerald v Diana Smith t/a Escape Hair Design21 that were relied on by the applicant. It was conceded that the latter decision concerned a public post on Facebook which was not the case in this matter. It was put, however, that the Facebook conversation constituted a breach of trust between the applicant, who was a senior manager, and the Dealer Principal of the respondent. The respondent argued that the applicant’s conduct was incompatible with her obligation of trust and confidence.

[51] It was put that the applicant admitted to being ‘vitriolic’ and that she did not think highly of Mr Nixon. In such circumstances it was argued that reinstatement would be impractical if the dismissal was found to be unfair.

Consideration

[52] I am satisfied that no jurisdictional issues arise in this matter and that, at the time of the termination of her employment, the applicant was a person protected from unfair dismissal. The respondent is a not a small business and there is no claim that the dismissal was a case of genuine redundancy.

[53] Section 387 of the Act sets out those matters that must be taken into account in determining whether a dismissal was harsh, unjust or unreasonable. I will now deal with each of those matters.

Valid reason

[54] It is necessary to look at each aspect of the conduct of the applicant complained of by the respondent to determine if any of the conduct constitutes a valid reason for the dismissal.

The telephone conversations of 27 May 2013

[55] Having heard the evidence of the applicant and of the respondent’s witnesses as to the content of the direction given by Mr Nixon to his managers on 27 May about communication with his wife, I am satisfied that the applicant followed this direction . The evidence was contradictory but I accept the evidence of the applicant, and that evidence given by both Mr James and Mr Nixon that the direction was to not divulge confidential information to Mrs Nixon. Had the direction been that no one was to talk to Mrs Nixon at all there would have been no need for the reference to confidential information, a reference that all witnesses agreed was made. I am satisfied that the applicant did not breach any direction by responding to a number of phone calls from Mrs Nixon on 27 May for a few minutes each time, particularly in light of the applicant’s evidence about Mrs Nixon’s distressed state at the time.

[56] I should also add that, had the direction been that the applicant not communicate with Mrs Nixon at all, I would not have been satisfied that such a direction was reasonable. I see no circumstance that could allow an employer to prohibit an employee from contact with another person merely because a senior manager of the employer had some personal issue with that other person. To find some connection between such a direction and the existence of a legitimate right of an employer to intervene in the personal life of an employee would be extremely difficult.

The Facebook conversation of 19 July 2013

[57] The Facebook conversation with Mrs Nixon occurred, on the applicant’s evidence, at a time when her husband had been hospitalised for a serious problem and she was affronted by Mr Nixon’s lack of concern or interest in his progress. The applicant took part in the conversation with Mrs Nixon from her home on the night of 19 July. The post was a private conversation between the applicant and Mrs Nixon and could not have been accessed by anyone else without Mrs Nixon’s password. Mr Nixon admitted to using Mrs Nixon’s password to access his estranged wife’s Facebook account and to having, while in the account, changed, more than once, her marital status on her Facebook page.

[58] While accessing his estranged wife’s personal Facebook account Mr Nixon viewed the comments made about him by the applicant.

[59] In her Facebook conversation with Mrs Nixon the applicant:

● Mentioned that she believed that Mr Nixon had taken a dislike to another employee;
● Mentioned that Toyota were conducting a staff survey and that some staff had told her that they ‘cannot wait to be able to tell Toyota anonymously exactly what they think of (Mr Nixon);’
● Informed her that another person had told her that Mr Nixon is ‘called ‘tosser’ by most in the motor vehicle world in Lonnie.

[60] Mr Nixon was understandably upset by these comments. He denied the allegations about disliking the employee mentioned. He believed that the applicant breached her duty of trust and confidence by making the comments.

[61] While it may have been a breach of the applicant’s duty of confidentiality for her to have mentioned that she believed Mr Nixon had a taken a dislike to another employee in the circumstances I do not believe the breach was particularly serious. The remark was not made to another employee or a customer of the business and, would have remained private to the parties to the conversation had Mr Nixon not accessed his estranged wife’s email account. It was certainly not such a serious breach of confidentiality as to justify termination of the applicant’s employment.

[62] A legitimate question is whether the comments made by the applicant indicated such a low opinion of Mr Nixon that it was untenable for the applicant to continue in employment as the human resources manager and justified the termination of her employment. There was the implication in the respondent’s case that it was an untenable situation for Mr Nixon to have as HR manager an employee who considered him a ‘tosser’. It was also the respondent’s submission that by not raising with Mr Nixon the concerns of the staff member who may have felt slighted by him, or the concerns of other staff members who were intending to give their opinions of him in the staff survey, the applicant had breached her duty to him as the HR Manager. The applicant responded to these latter matters in her evidence, noting that the employee who was slighted had clearly indicated that she did not want the matter taken any further, and that the persons who had spoken to her about the staff survey were senior managers whom she believed were capable of raising their own concerns with Mr Nixon. Further, the applicant did not call Mr Nixon a ‘tosser’ but repeated to his wife the statement of another person.

[63] In all the circumstances I do not believe the comments made by the applicant in a private conversation with Mr Nixon’s estranged wife were sufficient to justify the termination of the applicant’s employment. The remarks were not made in public or to employees or customers of the respondent. On the evidence it was apparent that the applicant and Mrs Nixon were good friends who believed that they were participating in a private conversation through their respective Facebook accounts. The comments that were made during the course of that conversation were not made as a post on a Facebook ‘wall’ that was then accessible to the ‘Friends’ of either party, or as a tweet that has wide ranging capability to be viewed by many followers. It is plainly evident that it was not the intention of either woman that the content of the conversation take place in the public domain, opening the views of the women up for scrutiny and comment. As already noted it was unlikely that the applicant’s remarks could have in any way affected Mrs Nixon’s opinion of her husband and Mr Nixon not accessed the Facebook account of his estranged wife, in all likelihood the content of the conversation would have remained confidential between the parties. .

[64] There was no evidence before me of any concern about the applicant’s interactions with Mr Nixon at the workplace or any evidence that the applicant had in any way attempted to denigrate Mr Nixon to anybody except Mrs Nixon. The evidence concerning the ‘narcissist’ remarks was not clear as to who instigated the conversation.

[65] I do not think discovery by a manager that an employee holds a low opinion of him is sufficient reason to terminate the employment of a long serving employee with an impeccable employment record. In my view more is required, particularly some evidence that the employee’s opinion is having a deleterious effect on the workplace, its employees or the business of the employer 22.

[66] I do not accept that the applicant breached the respondent’s social media policy. While the Facebook conversation may have been conducted by means of social media it was in the manner of a private email. It is unlikely that a policy that was an attempt by an employer to control the contents of private emails between their employees third parties, written in their own time and using their own equipment would be found to have the requisite connection to the employment relationship such that an employee could be terminated for a breach.

The email of 23 July

[67] The applicant sent an email 23, using her personal email account, to Mrs Nixon on 23 July. The applicant stated that she believed she sent the email from her home before taking her husband to a doctor’s appointment. This evidence was not challenged.

[68] In her email the applicant mentioned another employee of the respondent. It is clear from the applicant’s email that she and the other employee had been discussing the Nixon’s marriage breakdown. Other than that aspect of the email the only reference to the respondent is the following:

‘Not much happening at work. We have TUNE (new system) training happening in the dealership at the moment. So far Admin. Services & Parts have had all their training. Still got sales to come. I’ll sit in on some of that.’

[69] There was no evidence about the conversation between the applicant and the other employee other than the applicant’s claim that it was a private conversation held outside work hours. I am not satisfied that the applicant initiated the conversation or that anything that was discussed was confidential company business or information held by the applicant due to her position as an employee of the respondent. I accept that both the applicant and the other employee seemed to have discussed a mutually held view that Mr Nixon was a ‘narcissist’. I am not satisfied that the email or the discussion about Mr Nixon constituted a valid reason for the applicant’s dismissal. Nor am I satisfied that the applicant holding such a view, or even expressing it in a personal conversation with another employee would, without more, constitute a valid reason for her dismissal.

Notified of the reason

[70] The applicant was notified of the reason for her dismissal in the letter of termination dated 7 August 2013

Opportunity to respond

[71] The applicant was given a letter setting out the concerns of the respondent on 5 August 2013. Further information about the allegations contained in that letter was provided at the applicant’s request on 6 August 2013. At the meeting held on 7 August 2013 the applicant had an opportunity to respond to the concerns set out in the letter.

Support person

[72] The applicant was notified of her entitlement to have a support person at the meeting on 7 August by the letter of 5 August. Mr Crera attended the meeting as her support person.

Unsatisfactory performance warnings

[73] There were no warnings of any description given to the applicant, either in relation to her work performance generally or in respect of any of the matters relied upon for the termination.

Size of the employer’s enterprise

[74] The respondent is a company with approximately 58 employees. I do not consider that the size of the respondent in any way impacted on the procedures adopted in effecting the termination.

[75] I am satisfied that the procedures adopted in effecting the termination were not adversely affected by the size of the organisation.

Absence of dedicated human resource management specialist or expertise

[76] The applicant was the respondent’s human resource manager. For the purposes of the termination of the applicant’s employment the respondent relied on advice provided by an industrial relations adviser. That person advised in relation to the letter of 5 August and took a role in the discussion of 7 August. It was also the evidence of Mr Nixon that he consulted the adviser before taking the decision to terminate the applicant’s employment for serious misconduct.

Other matters

[77] The applicant was employed by the respondent and its predecessor for a period of more than 18 years. She held a senior position in the company.

Conclusion

[78] I have reached the view that, in all the circumstances of this case the termination of the applicant’s employment was harsh, unjust and unreasonable. There is no evidence of any conduct on the part of the applicant which could have justified summary dismissal. Nor was the conduct sufficient to bring about the termination of the applicant’s employment. A warning would have been a reasonable response, with a suggestion that the applicant should bring any concerns that other employees had brought to her about the Dealer Principal to his attention.

[79] I am satisfied that the applicant was unfairly dismissed. .

Remedy

[80] Having determined that the applicant was unfairly dismissed I must now consider the question of remedy.

[81] Section 390 of the Act sets out those circumstances in which a remedy may be ordered. Sections 390 of the Act deals with the matter of reinstatement.

[82] The applicant seeks reinstatement. In all the circumstances, given the exacerbation of the ill-feeling in the relationship between the applicant and the Dealer Principal that must have resulted from the decision to summarily dismiss the applicant from her employment, I do not consider reinstatement is appropriate. The management team at the respondent is fairly small and despite the evidence of Mr Pinkerton that the applicant would be able to operate in the same dysfunctional workplace as the rest of the staff, I do not consider that this is a practical option. I am satisfied that, at this point in time the necessary relationship of trust and confidence has broken down and is not capable of restoration 24.

[83] As I am satisfied that that reinstatement of the applicant is inappropriate and consider that an award of compensation is appropriate in all the circumstances, I turn to those matters set out in s.392 of the Act.

[84] There was no submission that any amount of compensation that might be ordered would affect the viability of the employer’s business.

[85] The applicant had been employed by the respondent and its predecessor for more than 18 years. It was her evidence that she had held only two employment positions in the previous 36 years. She was only three years away from retirement.

[86] It is my view that, had the dismissal not occurred in the manner it did, there is no reason why the applicant would not have remained employed until her planned retirement which was about three years away.

[87] I do not consider that the amount of compensation should be reduced because of any misconduct on the part of the applicant.

[88] As the applicant was on workers compensation payments in the period between the dismissal and the hearing she was not in a position to mitigate her loss by seeking other employment. As at the date of the hearing the applicant’s workers’ compensation payments had ceased.

[89] It is my intention to award as compensation, in lieu of reinstatement, an amount equal to the amount earned by the applicant during the 26 weeks immediately before the dismissal.

[90] On the evidence, this amount will not exceed the remuneration cap at s.392(5) of the Act.

[91] An order [PR547178] giving effect to this decision is published separately.

Appearances:

Mr Damian Durkin, for the applicant

Mr Andrew Cameron, of Cameron and Associates, for the respondent

Hearing details:

2013.

Tasmania:

3 December.