[2018] FWC 7315

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Rebecca Meyer
v
BMS Retail Group Pty Ltd T/A Champions IGA
(U2018/3538)

COMMISSIONER GREGORY

MELBOURNE, 5 DECEMBER 2018

Application for an unfair dismissal remedy.

Introduction

[1] Ms Rebecca Meyer was first employed by the BMS Retail Group Pty Ltd T/A Champions IGA (“Champions IGA”) in 2007 and subsequently worked with the business in a variety of roles. However, she was dismissed from her employment earlier this year after receiving a series of warnings over an extended period about issues to do with her behaviour and performance. Ms Meyer claims her behaviour at work was due, in large part, to various issues in her personal life. She subsequently lodged an unfair dismissal application and this decision deals with that application.

[2] Mr J. Ryan from the Shop Distributive and Allied Employees’ Association (“the SDA”) appeared on behalf of Ms Meyer. Ms N. Prestia from the Master Grocers Association appeared on behalf of Champions IGA.

The Issue to be Determined

[3] Section 385 of the Fair Work Act 2009 (Cth) (“the Act”) provides that a person has been unfairly dismissed if the Commission is satisfied “the dismissal was harsh, unjust or unreasonable.” Section 387 continues to provide that the Commission must take into account the following considerations in determining whether a dismissal was harsh, unjust or unreasonable. It states:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.” 1

[4] The Commission is therefore now required to determine whether Ms Meyer’s dismissal was “harsh, unjust or unreasonable” taking into account the matters in s.387 it must have regard to.

The Applicant’s Evidence and Submissions

Ms Rebecca Meyer

[5] Ms Meyer commenced with Champions IGA in a casual role in 2007 and converted to a full-time position shortly afterwards. In 2014 she began a personal relationship which over time became increasingly abusive and controlling. She indicated that it became “toxic and unbearable by late 2017,” 2 and in December last year she applied for an intervention order, which was subsequently granted. Ms Meyer was also experiencing significant problems with her rental accommodation, and these issues combined to impact on the health of her daughter. She was finally able to move into other more suitable accommodation in January.

[6] Ms Meyer does not dispute that she was formally counselled at work on various occasions about issues to do with her punctuality and unauthorised absences from work, as well as her failure to make contact with her employer when this occurred. She claims in response that her personal circumstances were impacting significantly on her at this time and led to the problems at work. She acknowledges that she received counselling notices in July and in October 2017. She also attended a meeting in December 2017 with Mr James Jowett, the Operations Manager, and Mr Aleksander Dimitrov, the Store Manager, who expressed their disappointment about her reliability and indicated she was being given a final warning. She was also asked to sign a counselling form at the conclusion of the meeting, but refused to do so. She indicated in her examination in chief that she was called into the meeting at short notice, and understood it was only intended to be a brief discussion. As a result she was not adequately prepared to respond appropriately.

[7] In addition, when she received the first employee counselling notice she had recently been in hospital as a result of an infected finger and a staph infection had subsequently developed. She was also dealing with her deteriorating personal relationship and had taken the unauthorised breaks from work due to the behaviour of her then partner, who had made a series of threats towards her. These were very difficult circumstances, but she was too embarrassed to provide full details to the Store Manager.

[8] She was then required to attend a further meeting on 14 February, which Ms Barden from the SDA also attended as her support person. Ms Barden explained to Mr Jowett that Ms Meyer had been a victim of domestic abuse. He responded by indicating that he was not previously aware of these circumstances. Ms Meyer indicated in her examination in chief that she was surprised by this because she had previously told Ms Draper and Mr Dimitrov about the issues she was dealing with, and about the fact she had taken out a restraining order against her former partner. She also indicated that her personal circumstances had recently improved. She was then offered the opportunity of taking a period of leave, but understood the only leave entitlement she had available at the time was long service leave. Mr Jowett was apparently also of the view that if long service leave was to be utilised then Ms Meyer was required to take a minimum of four weeks leave at any one time.

[9] Ms Meyer then agreed to take a period of four weeks leave. She completed the remainder of her shift on that day before commencing her leave on the following day. She then returned to work on 15 March and was then told by Mr Dimitrov that there was going to be a further meeting on the following day. She asked what was going to happen in that meeting, and he told her he thought everything would be okay, and she would simply “be told to pull my head in.” 3

[10] However, it became obvious during the course of the discussions that the business was considering terminating her employment, and Ms Meyer became increasingly upset and emotional and had difficulty recollecting what was said from that point. She again referred to her domestic circumstances by way of explanation when asked to explain her absences from work, and her pattern of late attendance. At the conclusion of the meeting she was told her employment was to be terminated and she then received written notification of her termination via email. The letter stated in part:

“Our meeting took place subsequent to previous meetings held on 19th December 2017, 27th October 2017 and 21st July 2017 when Counselling forms were issued after discussing ongoing matters around your late attendance and break times. You were advised in the meeting on 19th December that the Counselling Form issued was a Final warning on the matter and a failure to meet the described standards may result in termination of your employment.

As advised to you in our meeting of 16^th March your conduct has not met the required standards, with multiple discussions held with you over the past two years finally increasing to formal counselling over the past six months on matters relating to unsatisfactory conduct including:

• Late attendance to work on multiple occasions with no notification and direct effects on the workplace.

• Leaving the store during shifts for extra breaks without notifying management.

• Not working required number of hours.

Further to our meeting on 19^th March your responses were considered to the issues and a decision has been made to terminate your employment.

I hereby confirm that your employment is terminated on the basis that you have failed to follow basic Company directions regarding adherence to break times, attendance times and failing to disclose absences from store to management despite requests to do so. Your termination is effective close of business 16th March 2018.” 4

[11] Ms Meyer continued to state, “I am very sorry that I let the Respondent down on more than one occasion and I thank them for supporting me for as long as they did.” 5

[12] Ms Meyer confirmed in cross-examination that she was late to work and took unauthorised breaks during her shifts on numerous occasions while employed by Champions IGA. She also confirmed that this had occurred in circumstances that did not always involve issues arising from her relationship, and on some occasions she had simply slept in or had other commitments. She also confirmed that she had been asked by the Store Manager on numerous occasions to be in contact when she was going to be late, or needed time off from work, but did not always comply with these directions.

[13] She also acknowledged in cross-examination that she had been given a number of chances during the time she was employed by Champions IGA, and it had provided her with a range of support during that time. It had, for example, allowed her to bring her daughter to work on occasions, and she had also been allowed to take additional days off. It had also paid for her to attend professional counselling sessions that were intended to provide guidance and assistance in dealing with the issues in her personal life.

[14] She also acknowledged in cross-examination that in the meeting in February this year she had suggested taking some time off from work, and had not been forced to take leave. However, she would have preferred to have only taken two weeks’ leave, rather than the four week period Mr Jowett insisted she was required to take when utilising long service leave. She also confirmed that she was aware she could still face consequences as a result of her actions when she returned from leave, but did not believe this extended to the possibility of her employment being terminated. She also disagreed with the suggestion that Champions IGA had been fair in the way they handled her termination “because they didn’t listen to anything I said.” 6

Ms Michelle Barden

[15] Ms Barden is an Organiser with the SDA with responsibility for the North-Western Metropolitan Area. In February of this year she was asked to attend a disciplinary meeting at Champions IGA as a support person for Ms Meyer. She arranged to meet Ms Meyer prior to the commencement of the meeting and said she “seemed overwhelmed” 7 during the course of their discussions. Ms Meyer told her that she had previously received a first and final warning in December. She also spoke about her abusive relationship and the housing problems she was experiencing, as well as the concerns about her daughter’s health.

[16] Ms Barden then accompanied Ms Meyer to the meeting with Mr Dimitrov and Mr Jowett. Mr Jowett initially questioned Ms Meyer about her absences from work, and then explained why her unauthorised breaks were causing problems for the business. Ms Barden then told Mr Jowett that Ms Meyer had been experiencing domestic abuse and this was responsible for the issues at work.

[17] Ms Barden said Mr Jowett appeared surprised, and there was then a discussion about Ms Meyer taking a period of leave by utilising some long service leave. Mr Jowett initially offered a period of four weeks, but Ms Meyer only wanted to take two weeks. However, Mr Jowett appeared to be of the view that it was unlawful to offer anything less than a four week block of long service leave, and this was agreed to. The meeting then concluded.

[18] Ms Barden then received a further call from Mr Jowett around three weeks later when he asked about her availability to attend a further meeting with Ms Meyer. She contacted Ms Meyer and it was agreed she would attend a further meeting at Champions IGA on 16 March. Another SDA Organiser, Mr Matthew McDonald, also attended. Mr Jowett, Mr Dimitrov and Ms Draper attended on behalf of the business.

[19] Ms Barden said Ms Meyer appeared much healthier and happier on that day, and indicated in the meeting that she was doing well and looking for a fresh start. Ms Draper then started talking about Ms Meyer’s absences from work during her shifts, and referred to CCTV footage which confirmed the length of at least one of those absences. She said Ms Meyer became increasingly emotional as the meeting proceeded. It then adjourned for a short period of time. On resuming Mr Jowett began talking about the requirements of the business, and the issues caused by Ms Meyer’s absences from work. The meeting then adjourned again for a further period of around 30–40 minutes. When it resumed Mr Jowett indicated that it had been decided to terminate Ms Meyer’s employment, and she would receive pay in lieu of notice, together with any other outstanding accrued entitlements. Ms Meyer then returned her shop key to Mr Jowett. Ms Barden then had a further discussion with Ms Draper about the possibility of Ms Meyer being referred to a counselling service.

[20] Ms Barden confirmed in cross-examination that she met Ms Meyer for the first time on 14 February this year, and she told her then that she had previously received a first and final warning. She also confirmed that Ms Meyer had agreed to take a period of long service leave at the conclusion of that meeting, but only wanted to take a period of two weeks. It was also agreed she would “be reassessed” 8 on her return from leave, however, she was not aware a further meeting had been arranged in advance of Ms Meyer’s return from leave. However, she was subsequently contacted by Mr Jowett to ask whether she was available to attend a follow-up meeting. She confirmed that Ms Meyer was provided with an explanation in that meeting about the businesses’ concerns about her behaviour, and the impact her conduct was having on the business and its employees. Ms Meyer was also provided with an opportunity to provide an explanation in response. Ms Barden also indicated in cross-examination that in her view a fair process had been gone through.

Mr Matthew McDonald

[21] A witness statement was also provided by Mr Matthew McDonald, who is an Organiser with the SDA. However, Ms Meyer indicated in her submissions that she no longer sought to rely upon this statement and it could be disregarded.

The Applicant’s Submissions

[22] Ms Meyer submits that her termination was harsh, unjust and unreasonable in that:

• she was misled into taking more long service leave than she wanted;

• she presumed that when she returned from leave she would be given time to demonstrate her ability to meet her employer’s expectations;

• it was abrupt and harsh given it occurred immediately upon her return from leave; and

• it was not proportionate given the extenuating circumstances that contributed to her conduct.

[23] Ms Meyer submits that after first being employed by Champions IGA in 2007 she was generally considered to be a reliable and hard-working member of the team. However, in 2017 her personal circumstances began to impact on her work performance. She was counselled and disciplined as a consequence, but decided to only provide limited details to her employer about the circumstances impacting on her. By the beginning of 2018 she was also starting to get her life back into order.

[24] Ms Meyer acknowledged in her submissions that her personal circumstances clearly impacted on her performance at work, and caused her to be late for work on more than one occasion. She accordingly failed to meet the standards expected of her. In addition, she did not provide a full explanation to Champions IGA about her personal situation “on account of embarrassment and shame.” 9

[25] However, she continued to submit that her unauthorised absences from work did not necessarily impact on her ability to perform her job to a satisfactory level, and she was always conscious of the need to ensure required tasks were completed.

[26] Ms Meyer continues to submit that even if the Commission finds that Champions IGA had a valid reason to dismiss her, the termination of her employment was a disproportionate response. In addition, when it was provided with details about the circumstances she was dealing with it had a responsibility to act fairly towards her. Its initial response was to encourage her to take a period of leave, which she agreed to. This was beneficial in terms of her health and well-being. However, she was then dismissed abruptly on her return to work, without being provided with a chance to prove herself. That decision was unjust and unreasonable in all the circumstances.

[27] Ms Meyer also submits that the following circumstances are relevant to the exercise of the Commission’s discretion in this matter:

• she had been a good and diligent employee during most of the 11 years she was employed by Champions IGA, and had expected to continue in her employment for the foreseeable future;

• she is a single mother and has been significantly impacted by domestic violence. She is also experiencing difficult financial circumstances;

• she anticipated that on her return from leave she would be given time to be able to demonstrate her ability to comply with what was expected of her; and

• she has been open and honest in her admissions of fault, and in providing explanations about the circumstances that caused her to act in the way she did.

[28] She continued to submit that in the meeting in December last year, when she was given a final warning, she endeavoured to provide an explanation about the circumstances impacting on her. However, Mr Jowett, in particular, made clear in his evidence that he was either not listening or not interested in the explanations she provided at the time. It also appears he had been told about possible allegations involving drug taking, and this had an undue influence on his judgement. He should also have been aware of the issues Ms Meyer was dealing with because these had been made known to other Managers, including Ms Haire and Mr Dimitrov. This included details about the intervention order which extended to the workplace. Despite this Mr Jowett indicated in his evidence that he had no knowledge of Ms Meyer being a victim of domestic violence until the meeting on 14 February. This influenced the decision he made in the meeting on 19 December. The information about drug use was also likely to have influenced his decision and it was significant that he raised this issue again in the meeting on 14 February.

[29] In addition, while there were limits upon what Champions IGA was required to do, it should have ensured that all relevant information was available to it before any decision was made. The failure to take into account the explanation Ms Meyer provided was a critical error and contributed to her termination being unfair. This was why she refused to sign the counselling form provided to her in the meeting in December last year. It would also have been appropriate for her to have been offered the opportunity of having a support person in the meeting in December, given its significance. She was instead “ambushed in that meeting” 10 and not provided with appropriate notice of the meeting, or the chance to provide a considered explanation in response.

[30] In addition, Champions IGA did not have a policy in place in regard to domestic violence, and none of its Managers appeared to have received any training in how to deal with these issues.

[31] Ms Meyer continued to acknowledge in her submissions that she did take a longer lunch break on 9 February, but did so because she received threatening text messages from her ex-partner, which scared her, and she was not confident about returning to work. She was then called to attend the meeting on 14 February, and after that time understood that the issue involving her extended absence from work on 9 February had been dealt with and resolved, as confirmed by the notes taken by Mr Dimitrov. She also understood that she would be now taking a period of leave, and would retain her job for the time being and be provided with an opportunity to demonstrate that her conduct and performance had improved when she returned from leave. She was not aware that the termination of her employment was an immediate option that remained ‘on the table’ when she returned from leave. She understood instead that the business was going to give further consideration to its position as Mr Jowett had only become aware for the first time about the issues of domestic violence. There would then be a further discussion about those matters when she returned from leave.

[32] Ms Meyer also referred to the decision in Alexis King v D.C Lee & L.J Lyons, 11 and the emphasis in that decision on the significance of domestic violence, and the importance of having policies and support in place in the workplace.

[33] Ms Meyer submits, in conclusion, that her dismissal was unfair because there was no valid reason for her termination, and the reason relied upon was not sound, defensible or well founded. While her immediate Managers were in large part “kind and caring” 12 they also made serious errors in the disciplinary process. In her submission she is capable of being re-employed by Champions IGA, and this outcome would not impose any burden on the business or on other employees. She accordingly seeks reinstatement and believes her long period of service with the business means that a good working relationship can be re-established. She also seeks an order for continuity of service and payment of lost wages.

The Respondent’s Submissions and Evidence

Mr Aleksandar Dimitrov

[34] Mr Dimitrov is the Store Manager of the Champions IGA Supermarket at Darley and has been in this role since 2012. He was first employed by the business in 2006. Ms Meyer was already employed at the Store when he commenced and he considered she was at that time a reasonably good employee. However, her behaviour and performance at work unfortunately deteriorated over time.

[35] Ms Meyer’s job as the Scanning Coordinator required her to input the prices of stock into the system from the host file before the Store opened to ensure the stock was scanning at the checkout at the correct price. This required her to start work at either 7 a.m. or 7.30 a.m., and this was an essential requirement of her role. However, she was often late for work and did not complete the pricing and scanning duties on time. This situation was exacerbated by the fact she would rarely provide notice in advance that she was going to be late.

[36] Mr Dimitrov was aware Ms Meyer had some personal issues away from work, and always tried to be flexible and lenient with her. For example, he would let her bring her daughter to work in the morning, and would then let her take her to school at 9 a.m., even though this was during work time. In addition, her pay was never docked when she was late, and she was always paid for the breaks she took without authorisation. He also spoke to her informally on many occasions about her absences from work, although he only started documenting these discussions from around the beginning of 2016. He also raised these issues with her in the performance reviews that he held every 3 months, and she generally responded by indicating that her behaviour and performance would improve, but after a brief period the same issues would arise again.

[37] Mr Dimitrov provided a summary in his witness statement of the disciplinary issues that were raised with Ms Meyer at various times. It indicated in summary:

• 23 October 2014 – Ms Meyer was issued with a warning for not following cash up procedures and basic everyday tasks.

• 13 July 2015 – Ms Meyer was given a warning for purchasing marijuana from a fellow employee on the Store premises.

• January 2016 – Ms Meyer was informally counselled as she had been consistently late and had been taking extra breaks from work.

• 26 February 2016 – Mr Dimitrov had a formal meeting with Ms Meyer as she was 15 minutes late returning from her lunch break.

• 5 April 2016 – Mr Dimitrov had a further meeting with Ms Meyer about her punctuality as she had been regularly late for work. He reminded her in these discussions of the expectation that she would be at work on time, or would contact the business in advance to advise of her absence. During this discussion she made reference to some personal issues she was dealing with but did not elaborate. Following this discussion the business offered to pay for her to see a counsellor and she subsequently attended twelve counselling sessions over the next few months.

• 16 May 2016 – Mr Dimitrov again spoke to Ms Meyer about punctuality and her timesheets being inconsistent with her work hours. She indicated in response that she would aim to do better and said the counselling was helping.

• 26 May 2016 – Ms Meyer was again given a further warning as she had been late to work on the previous 3 days. She was again urged to provide notice if she was going to be late.

• 10 February 2017 – Mr Dimitrov had a further discussion with Ms Meyer about the pricing not being complete and her being frequently late to work. Further discussions took place between them over the next six months about her adhering to break times.

• 18 July 2017 – Ms Meyer took an hour and a half lunch break and two twenty minute tea breaks. She provided no explanation when asked about this.

• 19 July 2017 – Ms Meyer was issued with a formal warning in regard to the extended break she had taken on the previous day. Mr Dimitrov also spoke to her again later that day about using her mobile phone in the Store, which was against Store policy.

• 21 July 2017 – Ms Meyer was issued with another warning as she had been late on the previous three days. The business had now started to receive complaints from other staff and there was a general degree of frustration with her continued absences. It was again emphasised that she needed to provide advance notice if she was going to be late for work or unable to attend. Mr Dimitrov had a further brief discussion with Ms Meyer on 25 July and told her he had not seen any improvement in her behaviour.

• 3 October 2017 – Ms Meyer was an hour late for work again. However, she sent a text on this occasion but did not provide any further explanation when she arrived at work.

• 25 October 2017 – Ms Meyer was absent from work for a total of 3 hours without authorisation. She was given a further warning and was encouraged to seek help but she refused.

• 18 November 2017 – Ms Draper informed Mr Dimitrov that Ms Meyer had requested a loan from the business and it had been decided to lend her an amount to assist as it was aware she was dealing with some personal issues. The money was paid back a few days later.

• 19 December 2017 – Ms Meyer was late to work and did not call to notify. She arrived 2 hours late for her shift at 9 a.m. and said she had slept in after having a migraine on the previous day. When she arrived she said she had to attend a VCAT hearing at 11.30 a.m. and then left. She did not provide any advance notice of this commitment. She then sent a text to say she was going to visit a rental property. She was subsequently issued with a final warning in regard to her unannounced absences from work on this day.

• 17 January 2018 – Mr Dimitrov again spoke to Ms Meyer about using her mobile phone at work.

• 9 February 2018 – Ms Meyer again took several extended breaks from work without prior notice. A meeting was subsequently arranged to discuss this situation.

• 14 February 2018 – The meeting with Ms Meyer and her SDA representative took place. Ms Barden made reference for the first time to the issues to do with domestic violence that Ms Meyer was dealing with. The business indicated its concern about this but emphasised that it had been very supportive of Ms Meyer in the past over an extended period of time. It was then suggested that she take a period of leave to assist in dealing with her issues. A follow-up meeting was scheduled for 16 March. Mr Dimitrov indicated that he had no idea in advance of this meeting what the outcome would be and it was a decision that would be made by Mr Jowett and Ms Draper. During the meeting Ms Meyer indicated that she was doing better but Mr Dimitrov was sceptical as he had heard this many times before. After she was terminated Ms Meyer asked Mr Dimitrov for a reference and he provided her with a positive reference in order to help her to seek other employment. While she had caused much disruption at the store he was hopeful that she would be able to find suitable work elsewhere.

• 16 March 2018 – Mr Dimitrov indicated in his witness statement that immediately prior to this follow-up meeting he told Ms Meyer “not to worry or be too hard of herself” 13 in order to give her some “piece [sic] of mind”14 but he was not aware about what the outcome of the follow-up meeting would be. That decision was to be made by Mr Jowett and Ms Draper. He continued to state, “However given all of Rebecca’s history it seemed justified that she would be terminated.”15 He continued to indicate that Ms Meyer said that she was doing better but he had heard this many times before. When told she was to be terminated she said she understood why the decision was being made. After the meeting she asked him for a reference and this was provided.

[38] Mr Dimitrov also indicated in cross-examination that he was not aware in December last year that Ms Meyer had been granted an intervention order against her partner, and only became aware she had been a victim of domestic violence when it was raised by Ms Barden in the meeting in February.

Ms Karen Haire

[39] Ms Haire is the Assistant Store Manager at the Champions IGA Store at Darley and has been in this role for 5 years. Ms Meyer was already working in the Store when Ms Haire commenced, and she reported directly to either Ms Haire or the Store Manager, Mr Dimitrov. Her principal responsibility was to ensure the correct pricing was uploaded into the computer system each morning. However, she also carried out other invoicing, money counting, and office duties.

[40] Uploading the correct pricing each morning was an important task and was required to be completed before the Store opened at 7.30 a.m., otherwise stock would not scan correctly at the register. If not done in time it would also have flow on effects for staff and customers due to the inability to identify correct pricing.

[41] However, Ms Meyer was often late for work and this task would be required to be completed by someone else. She also took frequent breaks and these began to increase in length to the point where she could not be located at different points in time. Ms Haire and Mr Dimitrov discussed this situation with Ms Meyer on an almost weekly basis, and she was asked on many occasions to at least inform her Managers when she was going to be late or needed some time off work. On some occasions she would send a text when she knew she was going to be late, but she could not be relied on to do this on a consistent basis.

[42] Ms Haire became aware last year that Ms Meyer was having some personal issues with her partner, and tried to support her during this period. However, she did little to help herself and her performance did not improve. It was now “having a huge impact on the store,” 16 and she was given a formal warning in a meeting in July. However, there was again no real improvement, and a further meeting was held in October after she had taken an additional break of one and a half hours without informing anyone. She was given another formal warning at this time. She continued to be late for work on a regular basis and this was now becoming a real source of increasing frustration for other staff, who complained about her behaviour and the impact on staff morale.

[43] There was a further occasion in December last year when Ms Meyer was almost two hours late for work. Ms Haire tried to call her but her phone did not answer. When she arrived at work Ms Meyer told her she had slept through her alarm. She then had to leave for an appointment with VCAT, and then left work again later in the day to attend a housing inspection.

[44] Ms Haire said Ms Meyer told her on various occasions that she was “getting her life back on track and would fix things, but nothing ever changed.” 17 She was unsure about what more could have been done to assist Ms Meyer, and believed her behaviour was unlikely to change in the future, based on past experience.

[45] She also indicated in cross-examination that Ms Meyer had requested that the business provide her with a small loan in November last year. She also understood she had been granted an intervention order against her former partner in December last year. She had also made mention about drug use, but had asked her to keep this confidential. However, she had subsequently made mention of this to Ms Draper and Mr Dimitrov. She also acknowledged that she had stated in her witness statement that she wanted to give Ms Meyer a reasonable chance to improve because she knew she had the capacity to be a good employee who had the ability to perform her job correctly.

Mr James Jowett

[46] Mr Jowett is the Operations Manager with Champions IGA and has been in this position since 2013. He is directly involved in the operation of each of the different Stores, and these responsibilities extend to encompass employee related issues.

[47] Mr Jowett had not worked directly with Ms Meyer at any time but was often contacted by her Store Manager, Mr Dimitrov, about issues concerning her punctuality and unauthorised absences from work. He had also been made aware she was dealing with some personal issues, and had been provided with some flexibility/leniency as a consequence. However, many employees had to deal with difficult circumstances outside of their work, and do so without significant impacts on their work performance.

[48] On 19 December last year Mr Jowett was informed by Mr Dimitrov that Ms Meyer had arrived at work an hour and a half late, without any explanation, and had then taken an extended lunch break without permission. It was accordingly decided that it was appropriate to provide her with a final warning to emphasise her job was in jeopardy if this behaviour continued, given the number of written and verbal warnings provided to her previously.

[49] Mr Jowett said Ms Meyer explained she had been required to go to VCAT on that day, and then had an appointment to attend a house inspection. She said she had informed Ms Haire of this but this did not appear to be correct. She was told that if she had personal matters that she needed to attend to then her Managers should be informed in advance about these requirements. She was also reminded that an employee assistance service was available for staff dealing with personal difficulties. She was then given a final warning and told that any repetition of her behaviour would not be tolerated. She was also given an Employee Counselling Form but she refused to sign.

[50] Mr Jowett was again advised by Mr Dimitrov on 9 February that Ms Meyer had been late to work and had taken extended unauthorised absences during the course of her shifts. A further meeting was organised on 14 February at a time when a representative from the SDA could attend. Mr Jowett was on annual leave at the time but participated by phone. There were five incidents raised involving Ms Meyer being absent at some point during the course of her shift on 9 February without alerting anyone. The impact of this on the Store was again emphasised and she was again directed that she must seek permission before taking an unauthorised break or leaving the Store.

[51] Mr Jowett said Ms Meyer was quite aggressive at the start of this meeting and did not apologise or provide any explanation for her behaviour. The SDA representative then made reference to the issues concerning domestic violence. At this point Ms Meyer became quite upset. Mr Jowett was previously aware that Ms Meyer had been dealing with some personal issues, but was not aware they involved domestic violence. As he had not previously had any experience in dealing with this issue he decided that the meeting should be postponed until the following day to enable him to give further consideration to what had been discussed.

[52] However, Ms Barden suggested Ms Meyer might benefit from some time off work, and it was agreed a short period of leave be provided. As Ms Meyer did not have any accrued annual leave remaining it was agreed she could utilise some of her long service leave. However, Mr Jowett understood that long service leave could only be taken in four week blocks, and this was agreed to. It was then made clear at the conclusion of the meeting that any outcome in regard to Ms Meyer would be deferred until she had returned from leave. Mr Jowett also indicated that he intended in the meantime to give further consideration to the issues raised in the meeting, including those concerning domestic violence. However, he rejected any suggestion that there was an understanding at that point that Ms Meyer was going to be given a second chance when she returned from leave.

[53] Mr Jowett said Champions IGA had instead come to a preliminary view after the meeting in February that Ms Meyer’s employment should be terminated, given her consistent absences from work and her failure to provide notification on these occasions, despite the repeated requests for her to do so.

[54] A further meeting then took place on 16 March following her return from leave. It was confirmed at the start of this meeting that it was a continuation of the previous 14 February meeting. Mr Jowett asked Ms Meyer if there was anything further she wished to add in response to the issues raised previously. She responded by indicating that all was going well and she was feeling better. However, he was not convinced that it was likely that things would change as similar assurances had been received from her in the past. She also had not apologised for her past behaviour.

[55] After a series of breaks during the course of the meeting Mr Jowett and Ms Draper eventually concluded that Ms Meyer’s employment should be terminated. Mr Jowett believed this was the correct decision in all the circumstances, and the appropriate procedures had been followed. Champions IGA had provided significant support to Ms Meyer over an extended period of time, and her behaviour had caused significant disruption to the operation of the Store. Her behaviour had also created concerns from a health and safety point of view, given the business was often unable to account for her whereabouts.

[56] Mr Jowett also indicated in cross-examination that he asked Ms Meyer questions about drug use in the meeting on 19 December because he had been advised that this was a possible concern. She had previously been given a warning about purchasing drugs at work. He was also aware she had obtained an intervention order in regard to her partner, although he was uncertain about when he first became aware of this. However, it was certainly prior to her employment being terminated on 16 March.

Ms Kim Draper

[57] Ms Draper is the Human Resources Manager at Champions IGA and directly involved in the operation of the Stores within the group. Each Store has around 15 employees working at any one time and as a consequence the business is extremely reliant on each employee. If a staff member is not carrying out their duties it can have flow on effects for the whole Store.

[58] Ms Draper did not work directly with Ms Meyer but had been contacted on occasions by her Store Manager, Mr Dimitrov, about her absences from work and her punctuality. These issues had arisen more frequently in the last 6 months of her employment. By contrast her personnel file indicated that in the period between July 2007 and 2014 her performance and behaviour were generally of an acceptable standard. However, this changed from around October 2014. Ms Draper’s witness statement also attached a timeline of events from October 2014 to February 2018 which summarised the issues experienced with Ms Meyer over that time.

[59] She also provided details about the support and assistance provided to Ms Meyer. For example, between May and September 2016 Champions IGA organised and paid for her to attend 11 counselling sessions to assist in dealing with her issues away from work. It had also initiated and implemented an employee assistance program. She was also provided with other informal support over an extended period, and the business had continued to be flexible in regard to necessary time off work. It had also assisted by lending her amounts of money on two separate occasions. She had also been provided with a reference by Mr Dimitrov at the time she left in an endeavour to assist her to find work in the future.

[60] Ms Draper said she was aware from file notes that Ms Meyer’s performance and behaviour deteriorated significantly after July 2017. She was repeatedly late for work and at times took extended breaks without notice or explanation. Ms Draper subsequently provided advice to Mr Dimitrov about this situation and she was issued with at least three formal warnings by Mr Dimitrov, including a final warning in December 2017.

[61] Ms Draper attended the meeting on 16 March 2018. Ms Meyer indicated at the outset that she had appreciated the period of leave, and her personal circumstances had recently improved. However, she was unable to provide any acceptable explanation about why she ignored the warnings given to her and why she had, in particular, repeatedly failed to inform management when she needed to take additional breaks or was going to be late for work. Ms Draper said this was “a huge safety concern for us.” 18

[62] She said there were, in conclusion, a series of circumstances that led to the decision by Champions IGA to finally terminate Ms Meyer’s employment. They included, in summary:

• her repeated failure to inform management if she was going to be late for work or needed to leave work during her rostered shifts. This meant the business had lost all trust and confidence in her;

• she acted in breach of specific instructions and directions;

• her behaviour was part of a consistent and ongoing pattern, and continued despite various warnings given to her;

• her absences from work caused undue disruption in the Store;

• her behaviour impacted on staff morale and placed additional stress on the other employees; and

• while Ms Meyer was dealing with some significant personal issues she repeatedly failed to contact the Store when absent from work and appeared to place little value on her job.

[63] Ms Draper indicated, in conclusion, that she believed Champions IGA was finally left with no option but to terminate Ms Meyer’s employment, given the number of warnings provided to her, and the fact it had exhausted all possible avenues of support that could be provided to her.

[64] She also indicated in cross-examination that she had only been in her existing role since November last year. However, she had previously been the Payroll Manager for approximately ten years. In addition, the business had not wanted to terminate Ms Meyer, given the amount of time and effort invested in her. It had also been very lenient in allowing her to take additional time off work. These circumstances were compounded by her failure to comply with the specific instructions to contact management whenever she would be late or needed additional breaks from work. This was again a reasonable and lawful instruction, which she failed to comply with in circumstances where nothing prevented her from doing so.

The Respondent’s Submissions

[65] Champions IGA submits that Ms Meyer was notified of the reason for her dismissal before the decision to terminate her employment was made. She was also provided with every opportunity to respond to the concerns raised about her performance and behaviour. There was also no refusal to allow her to have a support person present in discussions related to her dismissal, and a support person was present on both of the last two occasions when she was spoken to about the issues to do with her behaviour and performance. She also received numerous warnings prior to her termination.

[66] It also rejects any suggestion that Ms Meyer was ambushed in the discussions on 16 March, and submits instead that she acknowledged in cross-examination that when the meeting was reconvened she was aware and understood it was a continuation of the previous meeting and there were likely to be consequences for her actions.

[67] In terms of ‘any other matters that the Commission considers relevant’ Champions IGA submits that despite a relatively long period of service there have been significant and ongoing issues about Ms Meyer’s conduct and performance since at least 2014. It has been sympathetic and supportive at all times to the issues she was dealing with away from work, including the more recent issues associated with domestic violence. However, those circumstances did not provide an adequate excuse for her behaviour, which continued over an extended period of time. In addition, it had requested on numerous occasions that she at least make contact with her Manager when she was not going to be at work, or was going to be late for work, but she failed to comply with these requests.

[68] Champions IGA also distinguishes the present circumstances from those in Alexis King v D.C Lee & L.J Lyons, 19 where the employee’s termination was the result of a one-off absence due to a requirement to attend a court hearing. The present matter instead involves a protracted history of absences from work, with limited evidence of any likely improvement. It also relies on the decision in Adan McIntosh v Australian Federal Police,20 which involved circumstances similar to those in the present matter.

[69] It also rejects the submission that it was at fault because it did not have a specific domestic violence policy, and submits at the outset that there is no obligation to have such a policy in place. In addition, Ms Haire had some training in regard to domestic violence issues, and Ms Draper was currently undertaking training. Ms Meyer had also been provided with a range of support and assistance by the business over an extended period of time, which included external professional support and advice.

[70] She was also not put under any pressure to take long service leave in February of this year, and this was an agreed outcome that she voluntarily accepted. It also rejects any suggestion she was told prior to going on leave that she would be given another chance at the conclusion of that leave period. It submits instead that it was clearly communicated to her that a further meeting would be arranged on her return from leave, and it would involve a continuation of the discussions in the meeting on 14 February.

Consideration

[71] Ms Meyer has clearly had to deal with some difficult and challenging issues in her personal life, particularly in more recent times. It is also apparent that these circumstances have impacted on her behaviour and performance at work. However, it is also evident that Champions IGA has at the same time been very supportive of her over an extended period of time, and went to some unusual lengths in this context. For example, the business paid for her to attend a series of professional counselling sessions. It has also been very tolerant in the face of her repeated poor punctuality and frequent absences from work.

[72] It is also clear that Champions IGA became extremely frustrated by Ms Meyer’s failure to cooperate in response by informing the business when she was going to be late for work, or needed to take time off during her shifts. This occurred despite repeated requests for her to do so.

[73] However, the Commission is now required to determine whether Ms Meyer’s dismissal was “harsh, unjust or unreasonable” having particular regard to the various matters set out in s.387. The circumstances in which an employee’s termination of employment might be considered to be “harsh, unjust or unreasonable” have been considered in a number of previous decisions, and the decision in Byrne v Australian Airlines Ltd 21 is often cited in this context. The joint judgement of McHugh and Gummow JJ concluded that

“...It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.” 22

[74] The decision of the Full Bench of Fair Work Australia in L. Sayer v Melsteel Pty Ltd 23 also provides guidance about the Commission’s role in regard to each of the considerations in s.387 that must be taken into account in determining whether an employee’s dismissal was “harsh unjust or unreasonable.” The Full Bench concluded:

“Where the applicant does present a case, in the ordinary course each of the criteria in s.387 which is capable of being relevant on the facts emerging at the hearing must be taken into account.” 24

[75] I now turn to deal with each of the considerations in s.387, and those authorities that are relevant to the determination of this matter.

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees)

[76] A number of previous authorities have provided guidance in terms of what is required in order to conclude that there was “a valid reason for the dismissal related to the person’s capacity or conduct.” The judgement of Northrop J in Selvachandran v Peteron Plastics Pty Ltd (Selvachandran) 25 is often referred to in this context. His Honour came to the following conclusions:

“The reasons of an employer for terminating the employment of an employee are solely within the knowledge of the employer. The employer may state a reason but that reason need not be the actual reason nor need it be the only reason. This is the rationale for the onus of proof provisions contained in s 170EDA.

Section 170DE(1) refers to ‘‘a valid reason, or valid reasons’’, but the Act does not give a meaning to those phrases or the adjective ‘‘valid’’. A reference to dictionaries shows that the word ‘‘valid’’ has a number of different meanings depending on the context in which it is used. In the Shorter Oxford Dictionary, the relevant meaning given is: ‘‘2. Of an argument, assertion, objection, etc; well founded and applicable, sound, defensible: Effective, having some force, pertinency, or value.’’ In the Macquarie Dictionary the relevant meaning is ‘‘sound, just, or well founded; a valid reason’’

In its context in s 170DE(1), the adjective ‘valid’ should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘be applied in a practical, commonsense way to ensure that’ the employer and employee are each treated fairly…” 26

[77] In Parmalat Food Products Pty Ltd v Wililo 27 the Full Bench also concluded that:

“The existence of a valid reason is a very important consideration in any unfair dismissal case. The absence of a valid reason will almost invariably render the termination unfair. The finding of a valid reason is a very important consideration in establishing the fairness of a termination. Having found a valid reason for termination amounting to serious misconduct and compliance with the statutory requirements for procedural fairness it would only be if significant mitigating factors are present that a conclusion of harshness is open.” 28

[78] The Full Bench majority in B, C and D v Australian Postal Corporation T/A Australia Post 29 (“Australian Postal Corporation”) also provides a useful summary of the approach to be taken by the Commission in weighing the factors to be considered:

“Reaching an overall determination of whether a given dismissal was “harsh, unjust or unreasonable” notwithstanding the existence of a “valid reason” involves a weighing process. The Commission is required to consider all of the circumstances of the case, having particular regard to the matters specified in s.387, and then weigh:

(i) the gravity of the misconduct and other circumstances weighing in favour of the dismissal not being harsh, unjust or unreasonable;

against

(ii) the mitigating circumstances and other relevant matters that may properly be brought to account as weighing against a finding that dismissal was a fair and proportionate response to the particular misconduct.” 30

[79] As indicated by these authorities the existence of a valid reason is often the most important consideration among the matters the Commission must have regard to in s.387. It is also clear from these authorities that a “valid reason” is one that is “sound defensible and well founded,” as opposed to one that is capricious, spiteful or prejudiced. It must also be valid in the context of both the employee’s capacity or conduct, and the operational requirements of the business. The test must also be applied in a practical, common sense way to ensure the parties are treated fairly in circumstances where each has rights and privileges, but duties and obligations as well. I have sought to adopt the approach of these authorities in coming to a decision in this matter.

[80] I am satisfied at first glance that Champions IGA had a valid reason to dismiss Ms Meyer. While she had been employed by the business since 2007, and initially had a good employment record, the issues to do with her conduct had been ongoing since 2014. They essentially involved her regular failure to attend at work on time, as well as her frequent absences from work during her normal rostered shifts. This occurred on an almost weekly basis according to the evidence of Ms Haire. The number of occasions on which these issues were raised with Ms Meyer is also emphasised in the evidence of Mr Dimitrov, and in the extensive meeting notes attached to his witness statement. This situation was compounded by Ms Meyer’s regular failure to inform the business when she was not able to be at work on time, or needed time off after arriving at work, despite being asked on repeated occasions to inform her Manager on these occasions. Champions IGA also emphasises that while her behaviour at times might have been impacted by the personal issues she was dealing with, on other occasions she was late because she had simply slept through her alarm.

[81] The evidence also indicates that her unauthorised absences from work, and her failure to attend at work on time, had significant consequences for the business, given Ms Meyer’s role in setting the prices to apply in the Store each day. Her behaviour also began to impact on staff morale as other staff observed her being given preferential treatment while they were required to cover for her absences or non-attendance at work.

[82] Ms Meyer’s unauthorised and unreported absences from work also created a potential occupational health and safety issue for the business as it was often unable to account for where she was. In summary, all of these circumstances would, prima facie, appear to provide a valid reason to terminate Ms Meyer’s employment.

[83] However, the decision in Selvachandran emphasises that a valid reason must be one that is sound, defensible or well founded. It also makes clear that the relevant legislation must be applied in a practical and common sense way to ensure that both the employee and the employer are each treated fairly. In addition, the reason relied on must be valid in the context of the employee’s capacity or conduct or based on the operational requirements of the employer’s business. Champions IGA was aware at the time it dismissed Ms Meyer that she had been dealing for some time with some difficult personal issues. These involved in more recent times domestic violence. It was also aware that these circumstances were contributing to the problems it was experiencing at work with Ms Meyer. It might often be considered appropriate for these matters to be taken into account in the context of s.387(h) “any other matters that the FWC considers relevant.” However, given that Champions IGA made the decision to dismiss Ms Meyer when it was broadly aware of the issues in her personal life I am satisfied that it is appropriate to consider whether it can still be said to have a “valid reason” that was “sound, defensible and well founded” in these circumstances, or whether it should have come to a different decision in this knowledge.

[84] Ms Meyer indicated in her evidence that she entered into a personal relationship in 2014 which over time became increasingly abusive and controlling. By the end of last year she described it as being “toxic and unbearable,” 31 and involving instances of domestic violence and threats being made toward her. This led her to seek an intervention order which was granted late last year. It extended to encompass her workplace and as a consequence details were provided to the Store Manager, Mr Dimitrov.

[85] She was also living at the time in substandard rental accommodation, which the landlord failed to rectify, and this impacted on her daughter’s health. She was finally able to move into other more acceptable accommodation in January of this year.

[86] Ms Meyer’s evidence indicated that these issues impacted on both her performance and reliability at work. She said she provided some details to Ms Draper and Mr Dimitrov, but felt too embarrassed to provide a full explanation. She also submits that the business was not well equipped to respond to these issues, given it did not have a policy in place concerning domestic violence, and there was little indication that any of its Managers had received relevant training in dealing with these circumstances.

[87] Ms Meyer also acknowledged that her absences from work were not always due to some unexpected personal circumstance, and on occasions she had simply been late because she had slept through her alarm. She also acknowledged that while she considers her termination to be unfair Champions IGA were generally caring and supportive of her. Its evidence provides a number of examples of this.

[88] For example, Mr Dimitrov indicated in his evidence that he was aware Ms Meyer had some personal issues away from work and he always tried to be flexible and lenient with her. He was prepared to allow her to bring her daughter into work on occasions, and to then allow her to take her to school. Her pay was never docked when she was late or when she took additional breaks from work without authorisation. His evidence also detailed the extensive number of occasions on which he spoke to her about work-related issues, and makes clear that the business was extremely tolerant of her when the circumstances could have justified her termination at a much earlier point in time. Mr Dimitrov also provided her with a reference at the time she left her employment in an attempt to assist her to find employment elsewhere.

[89] Ms Draper’s evidence also made reference to the support and assistance provided to Ms Meyer at different times. For example, between May and September 2016 Champions IGA organised and paid for her to attend a series of professional counselling sessions that were intended to assist her in dealing with the issues she was experiencing away from work. The business also initiated and put in place an employee assistance program. Ms Meyer was also provided with other informal support over an extended period, and the business continued to be flexible in providing her with time off work. Ms Draper also indicated that on two occasions the business had assisted by lending her small amounts of money. However, despite the extensive support provided to Ms Meyer over an extended period of time she had a protracted history of absences from work, with no improvement in her behaviour and little to suggest any improvement was likely. She also failed to respond on a consistent basis to the requests from her Managers to be in contact when she was going to be late for work, or needed time off after she had arrived at work.

[90] I am satisfied, in conclusion, that the evidence makes clear that Champions IGA went to extraordinary lengths over an extended period of time to assist Ms Meyer in dealing with the issues outside of work that were impacting on her. It also makes clear that it became increasingly frustrated by her failure to comply with the directions given to her to make contact when she was not going to be at work on time, or needed time off at short notice.

[91] I have also had regard to the submissions made on behalf of Ms Meyer about the alleged failure of Mr Jowett, in particular, to be fully aware of the circumstances impacting on her. There is also a suggestion in her submissions that Mr Jowett was unduly influenced by earlier references about drug taking or the use of drugs. It is accepted that the evidence does indicate that Mr Jowett was not made aware of the issues involving domestic violence until the discussions in the meeting on 14 February. This does seem unusual given Ms Meyer had spoken to Mr Dimitrov and Ms Haire about these matters, particularly after she obtained an intervention order which extended to the workplace. However, Mr Jowett did indicate in his evidence that he was aware prior to the meeting in February that Ms Meyer was dealing with some personal issues away from work, without necessarily being aware of all of the details. In addition, after the issue of domestic violence was raised he decided it was appropriate to defer any further action at that point, and to take time to consider how to respond.

[92] In coming to a conclusion about the matter of “valid reason” the Commission acknowledges and has genuine sympathy for the circumstances Ms Meyer was dealing with. They involve behaviour that is totally unacceptable. In circumstances where such behaviour is occurring it might clearly need to be taken into account in considering or providing an explanation for what is occurring at work. This will obviously depend upon the circumstances involved in each particular matter.

[93] However, I have had particular regard to the following circumstances in dealing with the present matter. Firstly, the issues to do with Ms Meyer’s behaviour and conduct extended over a significant period of time, having existed since 2014. She was spoken to, first informally, and then in a more formal sense on many occasions over this time, but despite repeated assurances there was little or any change in her behaviour. Champions IGA has accordingly been exceedingly tolerant of her behaviour over an extended period of time. It put up with her lack of punctuality, despite the impact this had on the Store, its staff and its customers. Ms Meyer would then on occasions leave work without authorisation after having commenced her shift. This placed pressure on the other staff in the Store, and raised issues for the business in that it was not always able to account for her whereabouts.

[94] However, Champions IGA was not only tolerant of Ms Meyer’s behaviour, it was also supportive of her as well. It paid for her to attend a series of professional counselling sessions in an endeavour to assist with the issues in her personal life. It lent her small amounts of money on two occasions. It urged her to raise any issues that she wanted to discuss at any time. It allowed her to bring her daughter to work at the commencement of her shift on occasions, and then gave her time off when she took her daughter to school. It finally provided her with a reference at the time she left her employment.

[95] Ms Meyer also did little to advance her cause in terms of her relationship with her employer. She was asked on repeated occasions to inform her Manager if she was not able to be at work on time, or needed to leave work for a period of time after having commenced her shift. However, she regularly failed to comply with these requests or directions. She also acknowledged in cross-examination that her lack of punctuality was not always due to her difficult personal circumstances, but on occasions was simply due to her having slept through her alarm.

[96] Champions IGA finally relies the decision in Adan McIntosh v Australian Federal Police 32 and the following extracts, in particular, when Commissioner Deegan concluded:

“[123] I accept that the applicant was subjected to difficult circumstances in his family life. This does not excuse the applicant’s attitude, particularly in light of the consideration shown to him by the employer so as to assist him to deal with his problems. The AFP facilitated the applicant (a graduate at the time) to undertake an overseas posting to be close to his family and immediately thereafter allowed him to take extended leave without pay, despite the fact he was an employee with only twelve months service at the time. In those circumstances, the applicant’s apparent resentment at being denied, on operational grounds, a compassionate transfer to Brisbane on his return from his extended period of leave without pay was unwarranted.

[124] The applicant made much of the difficulties he endured in attempting to provide for his children and their mother. While the applicant’s personal situation was unfortunate, the attitude of the applicant towards his employer is almost incomprehensible. It was readily apparent that the applicant expected the AFP to provide him with every possible concession to assist him with managing his personal circumstances, though conversely he seemingly deemed it unnecessary to honour even the most basic work requirements such requesting authorisation for his absences, notifying his supervisor of his repeated late attendances or attending work in a regular manner. The applicant seemed to operate under the misapprehension that he was in a position to determine his own hours of work and was able to refuse to do work if he had no interest in it.” 33

[97] I am satisfied that this decision is of relevance to the determination of this matter in terms of its references to the Applicant’s difficult personal circumstances, and his failure to communicate when he was not going to be at work, or would be late for work. However, it is not suggested in the context of the present matter that Ms Meyer was of the view that she could determine her own hours of work, or was only required to perform work she was interested in carrying out.

[98] As indicated, it is impossible not to be sympathetic toward Ms Meyer. However, at the same time Champions IGA has been very fair and reasonable in its dealings with her in response to conduct that extended over a prolonged period of time. The decision in Selvachandran makes clear that the reason relied on for termination must be valid in the context of both the employee’s capacity or conduct and the operational requirements of the business. Having regard to all of the circumstances I am accordingly satisfied that Champions IGA had a valid reason to terminate Ms Meyer’s employment in the sense that the reason relied on was sound, defensible and well-founded based on an objective analysis of the relevant facts.

(b) whether the person was notified of that reason

[99] Ms Meyer was clearly notified of the reason for her termination. In addition, this was confirmed in the termination letter provided to her.

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[100] The evidence makes clear that the issues relating to Ms Meyer’s capacity or conduct were raised with her on repeated occasions over an extended period of time and she was given every opportunity to respond.

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal

[101] There is no evidence indicating any unreasonable refusal by Champions IGA to allow Ms Meyer to have a support person present to assist at any discussions relating to her dismissal. The business in fact made sure that a representative from the SDA was present as a support person on the last two occasions in February and March of this year when meetings were held with her.

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

[102] Ms Meyer received a series of formal warnings during the time she was employed and acknowledged in her evidence that she received a final warning in December of last year. The evidence of Ms Haire and Mr Dimitrov also indicates that she was spoken to informally on an almost weekly basis about her behaviour and the impact it was having on the business.

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal

[103] I am satisfied that it is appropriate to deal with these two matters together. Champions IGA has a number of supermarkets at different locations. While they are each relatively small in size it is in combination a reasonably sized business. It also has an Operations Manager and a dedicated Human Resources Manager, who are available to provide advice and support to the individual stores about employment related matters. It is also able to call on support from the Master Grocers Association in appropriate circumstances. It does not appear in response that the size of the business, or the lack of any access to appropriate expertise, had any impact on the procedures followed in effecting Ms Meyer’s dismissal.

(h) any other matters that the FWC considers relevant

[104] Ms Meyer’s personal circumstances and how they might have impacted on her behaviour and conduct at work are of relevance in this context. However, as indicated I have already had regard to these matters in dealing with the issue of “valid reason.”

Conclusion

[105] I have had regard to each of the matters in s.387 that the Commission is required to take account of. I have also had regard to all the circumstances involved in this matter. I am not satisfied, in conclusion, that Ms Meyer was unfairly dismissed in the sense that her dismissal was “harsh, unjust or unreasonable.” In coming to this decision I have had particular regard to the conclusions reached in regard to “valid reason.” Having concluded that she was not unfairly dismissed it follows that her application must be dismissed.

al of the Fair Work Commission with member's signature