DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mrs Diane Wiburd
v
Grandbridge Limited
(U2016/14894)

Application for an unfair dismissal remedy – jurisdictional objection dismissed - dismissal not consistent with the Small Business Fair Dismissal Code

[1] On 14 December 2016, Mrs Diane Wiburd (Mrs Wiburd) filed an application (Application) with the Fair Work Commission (FWC) pursuant to section 394 of the Fair Work Act 2009 (Cth) (FW Act) alleging she was unfairly dismissed by Grandbridge Limited (Grandbridge).

[2] On 3 January 2017, Grandbridge lodged a Form F3 Employer Response to the Application which included a jurisdictional objection to the Application. Grandbridge asserts that Mrs Wiburd’s dismissal was consistent with the Small Business Fair Dismissal Code in accordance with section 388 of the FW Act (Jurisdictional Objection).

[3] The Application could not be resolved by conciliation and was consequently listed for hearing.

[4] Taking into account the circumstances of the parties and their submissions, it was determined that a Hearing rather than a Determinative Conference would be the most fair and efficient way to determine the Jurisdictional Objection.

[5] In accordance with Directions issued on 3 March 2017, the parties filed and served outlines of submissions, witness statements and documentary evidence in relation to the Jurisdictional Objection.

[6] Ms Wiburd filed a witness statement and gave oral evidence on her own behalf at the Hearing. Mr David Breeze (Mr Breeze), the Managing Director of Grandbridge, filed a witness statement and gave oral evidence at the Hearing on behalf of Grandbridge.

Permission to be represented

[7] Both parties sought permission to be represented by lawyers and did not oppose permission being granted to the other.

[8] Section 596 of the FW Act provides as follows:

“596 Representation by lawyers and paid agents

(1) Except as provided by subsection (3) or the procedural rules, a person may be represented in a matter before the FWC (including by making an application or submission to the FWC on behalf of the person) by a lawyer or paid agent only with the permission of the FWC.

(2) The FWC may grant permission for a person to be represented by a lawyer or paid agent in a matter before the FWC only if:

(a) it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or

(b) it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or

(c) it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.

…”

[9] Ms Wiburd sought permission to be represented by Mr Steve Heathcote on a number of grounds. Those grounds included that, as a 67 year old administrator without law, human resources or industrial relations training or experience, and as her only witness, she would be unable to represent herself effectively. She also submitted that, given the Hearing involved the determination of a jurisdictional objection, the Hearing could be conducted more efficiently if she was granted permission to be represented by a legally qualified representative.

[10] Grandbridge sought permission to represented by Mr David Howlett of Counsel, instructed by Mr Tim Masson, on a number of grounds. Those grounds included that, as Grandbridge’s only employee and only witness, Mr Breeze would be unable to represent Grandbridge effectively. Grandbridge also submitted that, given the Hearing involved the determination of a jurisdictional objection, the matter could be dealt with more efficiently if Grandbridge were granted permission to be represented by a legally qualified representative.

[11] In Warrell v Walton, 1 the Federal Court held that:

“A decision to grant or refuse “permission” for a party to be represented by “a lawyer” pursuant to s 596 cannot be properly characterized as a mere procedural decision. It is a decision which may fundamentally change the dynamics and manner in which a hearing is conducted. It is apparent from the very terms of s 596 that a party “in a matter before FWA” must normally appear on his own behalf. That normal position may only be departed from where an application for permission has been made and resolved in accordance with law, namely where only one or other of the requirements imposed by s 596(2) have been taken into account and considered. The constraints imposed by s 596(2) upon the discretionary power to grant permission reinforce the legislative intent that the granting of permission is far from a mere “formal” act to be acceded to upon the mere making of a request. Even if a request for representation is made, permission may be granted “only if” one or other of the requirements in s 596(2) is satisfied. Even if one or other of those requirements is satisfied, the satisfaction of any requirement is but the condition precedent to the subsequence exercise of the discretion conferred by s 596(2): i.e., “FWA may grant permission…”. The satisfaction of any of the requirements set forth in s 596(2)(a) to (c) thus need not of itself dictate that the discretion is automatically to be exercised in favour of granting “permission”.

[12] Having considered the submissions of the parties, leave to be represented by a lawyer was granted to both parties to enable the Application to be dealt with more efficiently, taking into account the complexity of the matter and the capacity of the parties to effectively represent themselves. The granting of permission to both parties ensured fairness as between the parties.

Background

[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).  2

[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). 3

[15] Grandbridge owns 4.87% of the shares in MEC Resources Limited (MEC) and is the largest shareholder in MEC. 4 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. 5

[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. 6

[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. 7 The other directors of MEC are Mr Goh Hock (Mr Hock) and Mr KO Yap (Mr Yap).8

[19] Ms Wiburd commenced employment with Grandbridge on or around 17 January 2007. 9

[20] At the time of her dismissal, Ms Wiburd’s remuneration was $77,625.00 per annum. 10

[21] Ms Wiburd was initially employed as Mr Breeze’s Personal Assistant. However, since 2008, she had worked closely with Ms Ambrosini. 11

[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. 12

[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. 13

[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. 14

[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). 15

[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. 16

[28] Ms Wiburd was absent from the workplace from 17 November 2016 until 28 November 2016 on annual leave. 17

[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. 18

[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. 19

[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. 20

[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. 21

[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. 22

[34] After the MEC AGM, Mr Foster and Ms Hughes attended the Grandbridge office and removed MEC papers, corporate folios and computing equipment. 23

[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. 24

[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:

“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.” 25

[37] On 27 November 2016, Ms Hughes called Ms Wiburd to let her know that Mr Breeze had dismissed Ms Ambrosini. 26

[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. 27

[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. 28

[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.  29

[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. 30

[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.  31

[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.  32

[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. 33

[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. 34

[46] Ms Wiburd submits she was unfairly dismissed and seeks an order that she be reinstated to her former position, along with orders to restore any lost remuneration. 35

[47] Grandbridge submit that Ms Wiburd’s dismissal was consistent with the Small Business Fair Dismissal Code (Code) and Ms Wiburdis not protected from unfair dismissal.

Is Ms Wiburd protected from unfair dismissal?

[48] Section 396 of the FW Act requires the FWC to decide four preliminary issues before considering the merits of an application for unfair dismissal.

“396 Initial matters to be considered before merits

The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy.”

[49] It is not contested, and I am satisfied, that the Application was made within the 21 day period required by subsection 394(2) of the FW Act. There is no assertion that Ms Wiburd’s dismissal involved redundancy.

[50] Section 382 sets out the circumstances that must exist for Ms Wiburd to be protected from unfair dismissal:

“382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.”

[51] There is no dispute, and I am satisfied, that Ms Wiburd had completed the minimum employment period and that her annual rate of earnings was less than the high income threshold. Consequently, I am satisfied Ms Wiburd was protected from unfair dismissal.

Was the dismissal consistent with the Small Business Fair Dismissal Code?

[52] Grandbridge asserts that Grandbridge is a small business for the purposes of the Code and that Ms Wiburd’s dismissal was consistent with the Code.

[53] Section 388(2) of the FW Act provides that:

“388 The 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.”

[54] The term “small business” is defined in section 23 of the FW Act as follows:

“23 Meaning of small business employer

(1) A national system employer is a small business employer at a particular time if the employer employs fewer than 15 employees at that time.

(2) For the purpose of calculating the number of employees employed by the employer at a particular time:

(a) subject to paragraph (b), all employees employed by the employer at that time are to be counted; and

(b) a casual employee is not to be counted unless, at that time, he or she has been employed by the employer on a regular and systematic basis.

(3) For the purpose of calculating the number of employees employed by the employer at a particular time, associated entities are taken to be one entity.

(4) To avoid doubt, in determining whether a national system employer is a small business employer at a particular time in relation to the dismissal of an employee, or termination of an employee’s employment, the employees that are to be counted include (subject to paragraph (2)(b)):

(a) the employee who is being dismissed or whose employment is being terminated; and

(b) any other employee of the employer who is also being dismissed or whose employment is also being terminated.”

[55] Mr Breeze gave evidence that, immediately before Ms Wiburd’s dismissal, she and he were the only two employees of Grandbridge. 36 I am satisfied that Grandbridge was a small business employer within the meaning of section 23 of the FW Act.

[56] The Code was declared by the Minister for Employment and Workplace Relations on 24 June 2009 and provides as follows:

“Small Business Fair Dismissal Code

Commencement

The Small Business Fair Dismissal Code comes into operation on 1 July 2009.

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

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.”

[57] Serious misconduct is defined for the purposes of the FW Act in the Fair Work Regulations 2009 (Cth) as follows:

“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 sub regulation (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:

(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.”

[58] In order to dismiss an employee in accordance with the Code without notice or warning, the employer must have reasonable grounds for believing that the employee’s conduct is sufficiently serious to justify immediate dismissal. The relevant grounds, therefore, must be those which were in the employer’s knowledge before the employer decided to dismiss the employee in question. 37

[59] Grandbridge sought to rely on the decision of Commissioner Gregory in Finemore v CMIB Insurance Services P/L [2016] FWC 8517 to assert that, for the purposes of proving that it had complied with the Code, Grandbridge was entitled to rely on information that was not within Mr Breeze’s knowledge at the time he decided to summarily dismiss Ms Wiburd.

[60] In that case, Commissioner Gregory considered the decisions in Dundovich v P&O Ports (PR923358) 38 and Lane v Arrowcrest Group Pty Ltd (1990) 27 FCR 427 and stated at [92] that:

“I am satisfied, in response, that these decisions confirm that the reasons for termination relied upon need not be confined to the reasons given at the time of termination, and can extend to include other reasons if they can be established by evidence provided to the Commission at the time of hearing.”

[61] Neither of these cases involve the application of the Code. The test in the Code clearly contemplates a temporal connection between the decision to dismiss and the grounds for doing so. This is implicit in the decision of the Full Bench in the extract from Steri-Flow Filtration Systems (Aust) Pty Ltd v Erskine [2013] FWCFB 1943 (which Commissioner Gregory subsequently cites in his decision at paragraph [97]):

“As we have indicated, the Code provides that 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. In Pinawin a Full Bench of FWA held that this involves consideration of:

•  whether the employer held a belief at the time of the dismissal that the employee’s conduct was sufficiently serious to justify immediate dismissal, and

•  whether the belief was based on reasonable grounds, which incorporates the concept that the employer has carried out a reasonable investigation into the matter.” 39

(emphasis added)

[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. 40

Alleged Knowledge of Plan to Remove Mr Breeze as Managing Director of MEC

[63] Mr Breeze says that he suspected that Ms Wiburd was involved in the plans to remove him as Managing Director of MEC because Ms Wiburd emailed the Grandbridge proxy for the MEC AGM to Ms Ambrosini rather than Mr Breeze, having never done so before and despite Ms Wiburd being aware that Mr Breeze always completed the Grandbridge proxy form. 41 He also points to evidence that Ms Wiburd was aware that a password had been applied to the Electronic Proxy Reconciliation.42

[64] Ms Wiburd denies she had any knowledge, let alone any involvement, in the plans to remove Mr Breeze. Ms Wiburd says that, although she has a very small holding of MEC shares, she was not privy to the discussions among the directors to remove Mr Breeze as Managing Director of MEC. 43

[65] It is apparent from the documents tendered that Mr Breeze closely reviewed the contents of Ms Ambrosini’s and Ms Wiburd’s computers and, despite those computers containing material which Ms Ambrosini clearly never intended Mr Breeze to view, Mr Breeze did not locate any evidence that Ms Wiburd was aware of, or involved in, the plans to remove him as Managing Director of MEC.

[66] Ms Wiburd says that her involvement in the proxy voting was limited to recording the proxies in the Electronic Proxy Reconciliation, and that this was a job that other staff members such as Ms Hughes and Ms Ambrosini shared with her. 44

[67] Ms Wiburd gave evidence that Ms Ambrosini applied the lock to the Electronic Proxy Reconciliation. Ms Wiburd says that there was nothing unusual about the Electronic Proxy Reconciliation being locked. According to Ms Wiburd, documents were often password protected and that the passwords were freely available to all of the Grandbridge employees. She says she was never instructed not to provide the password to the Electronic Proxy Reconciliation to Mr Breeze, and that he never ask for it. 45

[68] Ms Wiburd says she made no independent decision about which proxy forms were provided to whom and merely did as she was instructed by the directors. She says she provided those proxy forms Ms Ambrosini instructed her to provide to Mr Breeze to Mr Breeze, and the Grandbridge MEC proxy to Ms Ambrosini as she directed. 46

[69] Ms Wiburd was employed by Grandbridge in a clerical role as a personal assistant/ administrator. Ms Wiburd was instructed by the company CFO, Secretary and Director, Ms Ambrosini, to forward the proxy to Ms Ambrosini for her to sign. Ms Ambrosini held a position in Grandbridge which authorised her to complete and sign proxies. Mr Breeze admitted that typically Ms Ambrosini would countersign the proxy. 47

[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. 48

[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

[72] 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 of her close personal relationship with Ms Ambrosini. 49

[73] Mr Breeze tendered as evidence proof of the close personal relationship between Ms Ambrosini and Ms Wiburd three emails: see Exhibit A5 at Attachment DB7, Exhibit A5 at Attachment DB9 at 054, and Exhibit A5 at Attachment DB9 at 056. DB7 and DB9 at 054 involve Ms Wiburd’s social activities on the proceeding days, and one involves Ms Ambrosini advising Ms Wiburd that she is ill. None establish anything more than friendly professional relationship between two women.

[74] 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. 50 Given the name in the header of the first page of the email chain, it would appear most likely that Exhibit A5 at Attachment DB7 and Exhibit A5 at Attachment DB9 were sourced from Ms Wiburd’s computer, and therefore could not have informed Mr Breeze’s decision to dismiss Ms Wiburd.

[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. 51

[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. 52

[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. 53 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.

[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

[85] Mr Breeze gave evidence that he decided to terminate Ms Wiburd’s employment on Saturday 26 November 2017 inter alia because she hated him. 55

[86] Ms Wiburd says that she found Mr Breeze rude, prone to the profane verbal outbursts, and occasionally physically threatening. However, she says that this did not impact on her ability to work with him in a professional capacity and she had done so for more than ten years without personal or professional conflict. In fact, Mr Breeze concedes that he was unaware of any ill will held by Ms Wiburd before he found the emails on Ms Ambrosini’s computer.

[87] According to his witness statement, Mr Breeze only become aware of emails which he says demonstrated that Ms Wiburd possessed “hatred and antipathy” towards him when he searched Ms Ambrosini’s computer on 20 November 2017. He says that he found further emails evidencing this on Ms Wiburd’s computer but he admits that he did not locate these until after he summarily dismissed Ms Wiburd. 56 The emails on Ms Wiburd’s computer could not, therefore, have informed his decision to summarily dismiss Ms Wiburd.

[88] None of the emails that Mr Breeze says he showed Ms Wiburd on the day of her dismissal contain any evidence of Ms Wiburd’s personal views about Mr Breeze.

[89] 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 ‘hated’ Mr Breeze. In Exhibit A5 at Attachment DB3, Ms Ambrosini describes Mr Breeze as “disgusting” for refusing to contribute money, and Ms Wiburd simply agrees with her. Exhibit A5 at Attachment DB4, Exhibit A5 at Attachment DB6A, Exhibit A5 at Attachment DB10 at page 057, Exhibit A5 at Attachment DB11 Exhibit A5 at Attachment DB12, Exhibit A5 at Attachment DB13 and Exhibit A5 at Attachment DB14 are evidence of only Ms Ambrosini making derogatory comments about Mr Breeze. In Exhibit A5 at Attachment DB12, Ms Wiburd expresses disapproval of Mr Breeze’s conduct. Given that she was a shareholder potentially affected by his conduct, 57 and the conversation she was having was in a private forum, it is neither unreasonable nor inappropriate. In Exhibit A5 at Attachment DB6, Ms Ambrosini asserts that Mr Breeze is only making decisions in his own interest, with which Ms Wiburd concurs. The exchange does not, in my view, indicate that Ms Wiburd hated Mr Breeze. Rather, the exchange indicates that she did not approve of his conduct in relation to a particular matter. It was not established that this view was unreasonably held. In Exhibit A5 at Attachment DB10 at page 061, it is unclear who Ms Ambrosini is describing as a “fool” and therefore with what Ms Wiburd is concurring.

[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. 58 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. 59

Alleged Breach of Company Policies and Procedures

[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. 60 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.61

[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.

Opportunity to respond

[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 [2016] FWCFB 2859, 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.”

[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.

Conclusions

[99] It is clear from Mr Breeze’s evidence that he feels much aggrieved by the conduct of Ms Ambrosini and the other MEC and former Grandbridge directors. The vast majority of the evidence tendered on behalf of Grandbridge, in writing and orally, dealt with this conduct rather than the conduct of Ms Wiburd.

[100] On his own evidence, Mr Breeze was under significant financial, emotional and legal strain in the days leading up to Ms Wiburd’s dismissal. This appears to have coloured his decision making.

[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.

[103] Unless the matter is settled or discontinued, it will need to be the subject of a further hearing.

[104] The parties are strongly recommended to explore the possibility of an agreed settlement. If both parties consent to further conciliation before myself or another member of the FWC, they should contact my Chambers within 7 days of the date of this decision.

[105] In the absence of any contact, a Notice of Listing will be issued for the hearing and determination of the merits of the Application.

DEPUTY PRESIDENT

Appearances:

S Heathcote of Steve Heathcote Barrister & Solicitor for the applicant.

D Howlett of Counsel for the respondent.

Hearing details:

2017.

Perth:

April 10.

 1   Warrell v Walton [2013] FCA 291 at [24].

 2   Exhibit A5 at [7]-[8] and DB19.

 3   Ibid.

 4   Exhibit A5 at [7]-[8]

 5   Ibid [13], [15] and [17].

 6   Exhibit A5 at [9].

 7   Exhibit A5 at [10] and Exhibit R2 at [1.8].

 8   Exhibit A2 at 4.

 9   Exhibit R1 at [1.2]-[1.3].

 10   Ibid [1.4].

 11   Exhibit R1 at [1.5] and Exhibit A5 at [22].

 12   Exhibit A5 at [53]-[54] and Attachment DB18 and DB18A.

 13   Exhibit A5 at [40].

 14   Ibid [57].

 15   Ibid [55].

 16   Ibid [71].

 17   Ibid [74].

 18   Ibid [75].

 19   Ibid [77].

 20   Ibid [78].

 21   Ibid [86].

 22   Ibid [93].

 23   Ibid [95].

 24   Exhibit A5 at [87] and [97]-[98] transcript PN1488.

 25   Exhibit A5 at [100].

 26   Exhibit R2 at [4.4] transcript at PN1486.

 27   Exhibit A5 [102]-[103] and Exhibit R2 at [4.2]-[4.6].

 28   Exhibit A5 [103] and R2 at [4.7]-[ 4.8].

 29   Exhibit R2 at [4.9]-[4.10] and Exhibit A5 [104]-[106].

 30   Exhibit A5 [107] and Exhibit R2 at [4.14] and Transcript at PN185.

 31   Exhibit A5 [110]-[113] and Exhibit R2 at [4.15] Transcript at PN260 and PN1405.

 32   Exhibit A5 [113].

 33   Exhibit R2 at [4.18].

 34   Exhibit A5 [114]-[115].

 35   Exhibit R1 at [7.1].

 36   Transcript at PN64.

 37   John Pinawin T/A RoseVi.Hair.Face.Body v Domingo [2012] FWAFB 1359.

 38   (Unreported, Australian Industrial Relations Commission, Full Bench, 8 October 2002) PR923358.

 39   Steri-Flow Filtration Systems (Aust) Pty Ltd v Erskine [2013] FWCFB 1943 at [29].

 40   Transcript at PN397.

 41   Exhibit R5 at [41]-[46].

 42   Ibid [75]-[76].

 43   Exhibit R2 at [5.2].

 44   Exhibit R2 at [5.3]-[5.5] and Transcript at PN1340.

 45   Exhibit R2 at [5.6] and Transcript at PN1341-1344.

 46   Transcript PN1463.

 47   Exhibit R5 at [47].

 48   Transcript at PN753-PN754 and PN1408.

 49   Exhibit A5 at [100].

 50   Exhibit A5 at [36] and Transcript at PN390.

 51   Transcript at PN233 and PN1632.

 52   Exhibit A5 at [100].

 53   Transcript at PN1326.

 54   Exhibit A5 at [35] and Transcript at PN390.

 55   Exhibit A5 at [101].

 56   Ibid [36].

 57   Transcript at PN1544.

 58   Exhibit A5 at [33] and [36] and Transcript at PN390.

 59   Exhibit R2 at [3.1]-[3.4] and Transcript at PN185.

 60   Exhibit A5 at [100].

 61   Transcript at PN397-PN424.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR592514>