| [2019] FWC 4637 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Amal Hanna
v
Home Care Assistance
(U2019/2422)
COMMISSIONER CAMBRIDGE |
SYDNEY, 12 JULY 2019 |
Unfair dismissal - summary dismissal for serious misconduct involving abusive and threatening behaviour - advice of dismissal conveyed by email - dismissal for valid reason but with defective procedure - on balance dismissal not harsh, unjust or unreasonable - application dismissed.
[1] This matter involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009 (the Act). The application was lodged on 6 March 2019, and it was made by Amal Hanna (the applicant). The respondent employer is Home Care Assistance (the employer).
[2] The application indicated that the date that the applicant’s dismissal took effect was 26 February 2019. Consequently, the application was made within the 21 day time limit prescribed by subsection 394 (2) of the Act.
[3] Conciliation of the matter was conducted on 8 April 2019. However, the matter was not resolved and it has proceeded to arbitration before the Fair Work Commission (the Commission) in a Hearing conducted at Sydney on 11 June 2019.
[4] At the Hearing, the applicant represented herself with the assistance of her husband, Mr A Butres, and further assistance was provided by way of the services of a language interpreter. The applicant was the only witness called to provide evidence in support of the unfair dismissal claim. The employer was represented by its Operational Manager, Ms S Yousif. Ms Yousif also gave evidence as the only witness called to provide evidence on behalf of the employer.
[5] The applicant commenced work with the employer in about February 2018. The applicant was employed as a casual Home care employee. The employment of the applicant was formalised by way of an executed contract of employment document dated 10 March 2018. The applicant performed a broad range of personalised domestic assistance and support tasks. The work of the applicant was covered and governed by the Social, Community, Home Care and Disability Services Industry Award 2010, MA 000100 (the Award).
[6] The employer’s business operation involves the organisation and facilitation of personalised home care assistance services. The employer provides its home care services to clients located in the Sydney outer west region, and its operations office is located in the Sydney suburb of Fairfield. The employer has approximately 30 casual employees. There was no suggestion that the employer was a small business.
[7] Shortly after the commencement of her employment the applicant raised complaints about what appeared to be an underpayment of wages. The applicant unsuccessfully agitated repeated complaints regarding alleged underpayment. The applicant’s underpayment complaints appeared to have been justified, as the employer confirmed that she was paid $21.01 per hour whilst the lowest hourly rate for a casual Home care employee level 1 prescribed by the Award was $24.60. However, the question of any underpayment is not a matter that could be properly determined in these proceedings.
[8] On 4 December 2018, the employer sent the applicant two emails which contained warnings about particular aspects of the applicant’s conduct at work. In these warning emails, the employer raised concern about matters such as; the applicant taking her daughter to work; leaving early from work; and not maintaining client privacy. In January and February 2019, the applicant was included in further email warnings that were sent to all of the employer’s Care workers.
[9] In February 2019, the applicant commenced to make applications for alternative employment. In the pursuit of alternative employment the applicant asked the employer to provide her with a reference that she could use when making job applications. The applicant’s requests for the employer to provide her with an employment reference were not successful.
[10] On Monday, 25 February 2019, the applicant completed a time sheet that showed that she worked from 9am to 1pm for a client identified as “Samina”. At approximately 1:20 pm, after completing her work engagement at the home of “Samina,” the applicant went to the employer’s office for the purpose of the further pursuit of an employment reference. Perhaps in frustration from the unsuccessful pursuit of a reference, the applicant became highly agitated, and she screamed abuse and threatened various members of the employer’s staff who were working at the employer’s office at the time.
[11] The precise details of this very unfortunate incident at the employer’s office on 25 February were not made clear in the evidence. However, it appeared that the applicant left the employer’s office in a highly agitated state whilst issuing threatening statements directed at the employer’s staff. A short time after the applicant had left the employer’s office, and as a direct result of the incident, at 2:20:08 pm the employer sent the following email message to the applicant:
“Subject: Dismissed from Home care Assistance !!!
Hi Amal,
You came to office today at 1:20 pm, and you started screaming & using abusive words in front of other staffs. When ever [sic] there is a service you were taking your daughter with you, as sussan [sic] already warned you about this not to be repeated again. But you neglected to do so.
Last time when you meet sussan, [sic] you said your Husband [sic] was cursing our Manager’s Mother [sic] which is not appropriate to do so.
And today while leaving you threat [sic] us saying ‘i [sic] will bring my Husband [sic] to the office next time & know how to get the certificate’.
This behaviour as a care worker is not acceptable which will degrade our company reputation. We dismissed you from Home [sic] care assistance. No more jobs will be scheduled.
Today (25/02/2019) is the last working Day.[sic]
Thank you.”
[12] It was not clear from the evidence as to when the applicant read the email sent to her by the employer shortly after 2:20 pm on 25 February 2019. However, on the following morning, 26 February, the applicant attended at the premises of a client that she had previously understood to have involved a scheduled work engagement. The client then informed the applicant that she had been advised that the applicant would not be performing the scheduled service, and instead a different Care worker would attend to the client’s needs on that day. The applicant said that she was shocked at receiving this news, and although the evidence is not entirely clear, it appeared that the applicant then went to the employer’s office seeking certain documentary confirmation of her dismissal.
[13] Once again the evidence was unclear as to precisely what occurred when the applicant went to the employer’s office on 26 February. However, at 10:02:11 am on 26 February 2019, the employer sent a further email communication to the applicant in the following terms:
“Subject: warning !!
Amal,
We already sent email yesterday that your last day will be 25/02/2019. You are threatening us that you will send your husband & told us you know to collect the certificate from us.
We have to call police as you threat [sic] us saying you will bring your husband and using abusive words against office manager .[sic] This is against Australian law.
Regards,”
[14] A short time later, at 10:37:29 am on 26 February 2019, the employer sent the following further email message to the applicant:
“Subject: Send email confirmation
Hi Amal,
If you need any certificate or document send us in email. So that we can proceed.
We require email confirmation or notice to proceed [sic] any request.
Thank you,
Vani”
[15] On Wednesday, 27 February 2019, the applicant sent the following email to the employer:
“Hi Suzanne,
I kindly request for you to send my employment position in writing or via email as I have called Welfare [sic] & they would like to know what my entitlements are as an employee at your office.
Kind Regards,
Amar [sic] Hanna”
[16] In response to this request from the applicant, the employer sent the following email at 12:04 pm on Friday, 1 March 2019:
“Hi Amal,
Kindly find the below attached Confirmation [sic] letter of stop working for your reference.
Regards,
Sussan Yousif”
[17] The Confirmation letter referred to in the email was attached to the communication and was in the following terms:
“March 1, 2019
To Whom It May Concern,
This letter is to confirm that Ms Amal Hanna has stopped employment with Home care assistance Sydney out west (HCA) on the 25th February 2019. She violated the company policy and procedures, by bringing her kid to the work though notified her not to repeat, she has used abusive words and threatened us in the office.
She was working as a Care worker. If you have any queries regarding the above, please call to discuss.
Kind Regards,
Susan Yousif
Operational Manager
HCA Sydney Outer West”
[18] The applicant provided no evidence about her post dismissal activities regarding the pursuit of alternative employment and any other remuneration that she may have obtained since her dismissal.
[19] The applicant was unrepresented. However, during the Hearing the applicant’s husband, Mr Butres, made brief oral submissions on her behalf.
[20] The submissions made by Mr Butres are repeated as follows:
“Okay - dismissal, I want to defer because if she is casual, as far as I know, if she is casual she have to have right amount of rates for many hours. If she is permanent part-time or full-time, she have to give her four weeks' payment or two weeks' notice before she have to terminate. So I don't know which way she is thinking, because as far as I can see, in the beginning, she was earning $27.01, and then in three, four month later she drop her wages to $21.10 so I want to know, what is her role there? So that's about it.” 1
[21] In addition to the verbal submissions made by Mr Butres, the application document, Form F2-Unfair dismissal application, referred to the termination of employment letter dated 1 March 2019, and rejected that the applicant had violated any company policies or procedures by taking her daughter to work. Further, the application document referred to the termination of employment letter which asserted that the applicant had used abusive words and threatened the employer’s staff in the office. The applicant said that this was not true.
[22] Further, in terms of any remedy that the applicant was pursuing, the Form F2 indicated that she sought a “real explanation for unfair dismissal” and an explanation for underpayment of wages and back pay for all underpayments. Further, the applicant indicated that as part of the remedy sought she wanted an explanation as to why she had only received four payslips even though she had requested payslips on numerous occasions.
[23] The employer was represented by its Operational Manager, Ms Yousif. Ms Yousif made only very brief oral submissions during the Hearing.
[24] During the Hearing, Ms Yousif said that the employer sent the applicant an email which advised of her dismissal “because she was really abusive over time we couldn’t take it anymore so that’s why we dismissed her.” 2
[25] Further, the Form F3 – Employer response to unfair dismissal application included the following information about the reasons for the dismissal of the applicant:
“For being dishonest to the company. Homecare Assistance has given notice to Amal Hanna many times for bringing her child to the workplace, leaving early from job, talking over the phone during service hours. The clients complained to us many times and requested to change the care worker.
Amal Hanna used abusive words and threatened us by saying I will send my husband”. We could not tolerate such kind of behaviour so dismissed her immediately” 3
[26] Section 385 of the Act stipulates that the Commission must be satisfied that four cumulative elements are met in order to establish an unfair dismissal. These elements are identified as:
“(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.”
[27] In this case, there was no dispute that the matter was confined to a determination of that element contained in subsection 385 (b) of the Act, specifically whether the dismissal of the applicant was harsh, unjust or unreasonable.
[28] Section 387 of the Act contains criteria that the Commission must take into account in any determination of whether a dismissal is harsh, unjust or unreasonable. These criteria are stipulated as:
“(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.”
[29] In this case the applicant was dismissed as a direct consequence of her misconduct involving her abusive and threatening conduct when she attended the employer’s office during the early afternoon on Monday, 25 February 2019. The employer found that the behaviour of the applicant during this unfortunate incident represented serious misconduct that warranted immediate dismissal.
[30] Upon careful contemplation of all of the evidence that was presented in this case, the serious misconduct of the applicant as was found by the employer, has been established. The nature of the applicant’s misconduct was sufficiently serious such that it did not warrant any further inquiry, and provided sound basis for the immediate dismissal of the applicant.
[31] Consequently, the employer’s finding of serious misconduct arising from the abusive and threatening incident at the employer’s office on 25 February 2019 has been verified. Therefore, there was valid reason for the dismissal of the applicant. The finding of serious misconduct made by the employer, has established sound, well-founded and defensible reason for the dismissal of the applicant.
[32] The employer provided written notification of the applicant's dismissal by way of an email sent at 2:20:08 pm on Monday, 25 February 2019. Advice of dismissal by way of email communication should, as a general rule, be strenuously avoided. In this instance however, I recognise that the behaviour of the applicant would have likely provided a reasonable apprehension of concern for safety of the employer’s managerial staff if a face-to-face meeting with the applicant had been organised for the purpose of advising the applicant of dismissal.
[33] The employer did not provide the applicant with an opportunity to respond or provide some explanation for her behaviour during the 25 February incident. Although it was understandable that the employer responded to the applicant’s behaviour with the decision to immediately dismiss, such an immediately reactive implementation of dismissal involved a clear procedural defect.
[34] The applicant committed an act of serious misconduct that warranted immediate dismissal. However, the employer’s move to immediately invoke dismissal meant that the applicant was denied an opportunity to respond or provide some explanation that may have militated against dismissal. Hypothetically, what if the behaviour of the applicant was caused by some unforeseen reaction to prescription medicine? Or what if the applicant was experiencing severe emotional distress as a reaction to the unexpected death of a beloved pet?
[35] In this instance, no evidence has been provided which might have established some reasonable explanation for the applicant’s serious misconduct. However, the absence of due process is a factor that may establish that the dismissal was unreasonable. The procedural defect in this instance must be balanced against all other factors, particularly the existence of valid reason for dismissal.
[36] The procedural deficiency that was evident is this case has extended to the absence of any opportunity for assistance from a support person because there were no discussions relating to the dismissal before it was invoked.
[37] There was evidence of warning to the applicant about unsatisfactory performance and conduct issues. However, these issues were of secondary relevance.
[38] The size of the employer’s operation would have been likely to have an impact on procedures surrounding the dismissal of the applicant.
[39] The employer clearly did not have any management specialists that may have assisted with procedures. However, the nature of the misconduct of the applicant must be carefully assessed and balanced against clear procedural errors.
[40] There were no other matters that were advanced as relevant to the consideration of the unfair dismissal claim. The applicant’s complaints regarding alleged underpayments and other employment related matters have been duly considered and balanced against all other relevant factors.
[41] In this case the applicant was dismissed for serious misconduct. The serious misconduct occurred early in the afternoon of 25 February 2019 when the applicant attended the employer’s office. The serious misconduct of the applicant was directly experienced by the employer’s manager who made the decision to immediately dismiss the applicant. Upon analysis of all of the evidence presented in this case, the serious misconduct of the applicant has been confirmed.
[42] Consequently, the employer dismissed the applicant for valid reason relating to the applicant's conduct. The conduct of the applicant represented gross and wilful misconduct of such severity as to justify summary dismissal.
[43] However, the applicant was denied an opportunity to respond or provide some explanation for her behaviour. The dismissal of the applicant involved a clear procedural deficiency and this error in procedure must be balanced against all other relevant factors.
[44] On balance, particularly having regard for the serious misconduct of the applicant, and the absence of any subsequent explanation for that behaviour, the Commission has concluded that the dismissal of the applicant was not harsh, nor was it unjust, or unreasonable. Therefore, the application for unfair dismissal remedy must be dismissed and an Order to that effect will be issued accordingly.
COMMISSIONER
Appearances:
Ms A Hanna appeared unrepresented.
Ms S Yousif, Operational Manager appeared for the employer.
Hearing details:
2019.
Sydney:
June, 11.
Printed by authority of the Commonwealth Government Printer
<PR709985>
1 Transcript @ PN286.
2 Transcript @PN183.
3 Form F3 – Employer response to unfair dismissal application @ paragraph 3.1.