| [2019] FWC 5622 [Note: An appeal pursuant to s.604 (C2019/5165) was lodged against this decision.] |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Creina Murkitt
v
Staysafe Security T/A Alarmnet Monitoring
(U2019/2978)
COMMISSIONER PLATT |
ADELAIDE, 16 AUGUST 2019 |
Application for an unfair dismissal remedy – social media post – valid reason – dismissal disproportionate and thus harsh – reinstatement not sought – compensation – no desire to continue employment – workers compensation receipts – no monetary loss – no compensation awarded.
[1] On 18 March 2019, Ms Creina Murkitt lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) seeking a remedy for an alleged unfair dismissal by her former employer Staysafe Security T/A Alarmnet Monitoring (Alarmnet) which took effect on 6 March 2019.
[2] On 26 April 2019, Alarmnet filed a Form F3 Employer Response which contended Ms Murkitt was dismissed on 6 March 2019 as a result of a serious breach of the social media policy.
[3] The matter did not resolve at Conciliation and was allocated to my Chambers on 3 May 2019.
[4] A Directions Hearing was conducted on 10 May 2019 and Directions were issued for the filing of material and the matter was listed for Hearing on 18 June 2019.
[5] There was no dispute that Ms Murkitt was protected from unfair dismissal pursuant to s.382 of the Act.
[6] There was no contention by Alarmnet that the dismissal was a case of genuine redundancy or that the Small Business Fair Dismissal Code applied.
[7] The uncontested factual background to the matter is as follows:
• Ms Murkitt was employed on a full-time basis by a predecessor of Alarmnet in February 2005.
• Ms Murkitt’s most recent contract of employment 1 was dated 23 December 2010 and contained a provision that she “not intentionally do anything that is or maybe harmful to the Company”.
• On 6 June 2017, Alarmnet (which was a family company) was purchased by Staysafe (SA) Pty Ltd (which continues to trade as Alarmnet). Ms Murkitt’s employment continued under the new ownership.
• Alarmnet has a social media policy 2 which required employees to refrain from posting inappropriate material “which included material that was intended (or could possibly) cause insult, offence, intimidation or humiliation to the Company...or is defamatory and could adversely affect the image, reputation, viability or profitability of the Company…”.
• The social media policy was emailed to Ms Murkitt on 8 November 2017. 3
• In the last few months of Ms Murkitt’s employment the Policy Manual was placed in the control room.
• From about 5 December 2018, Ms Murkitt was absent work as a result of a medical condition which was determined to be compensable under workers compensation legislation.
• On 26 February 2019, Ms Murkitt made a Facebook post concerning Alarmnet. This post subsequently became the subject of discussion at the workplace.
• On 27 February 2019, Alarmnet corresponded with Ms Murkitt about the Facebook post.
• A disciplinary meeting was conducted on 5 March 2019. Alarmnet advised Ms Murkitt that it believed that the comments made in the post constituted a breach of the social media policy and gross misconduct. Ms Murkitt confirmed she made the post and that she was angry at the time.
• On 5 March 2019, Ms Murkitt’s employment was summarily dismissed (with effect from 6 March 2019).
[8] The issues in dispute in this matter are as follows:
• Did Ms Murkitt’s conduct constitute a valid reason for her dismissal; and
• Was the dismissal harsh, unjust or unreasonable given the circumstances?
[9] There being some contested facts involved, the Commission is obliged by s.397 of the Act to conduct a Conference or hold a Hearing.
[10] Section 596(1) of the Act provides that a party may be represented in a matter before the Commission by a lawyer or paid agent only with the permission of the Commission.
[11] Section 596(2) provides that the Commission may grant permission for a person to be represented by a lawyer or paid agent in a matter before the Commission only if:
(a) it would enable the matter to be deal with more efficiently, taking into account the complexity of the matter; or
(b) it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or
(c) it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.
[12] The decision to grant permission is not merely a procedural step but one which requires consideration in accordance with s.596 of the Act. 4 The decision to grant permission is a two-step process. First it must be determined if one of the requirements in s.596(2) have been met. Secondly, if the requirement has been met, it is a discretionary decision as to whether permission is granted.5
[13] On 24 May 2019, Ms Davies (of Counsel) filed written submissions seeing permission to represent Alarmnet pursuant the s.596 of the Act, based on complexity and efficiency, the benefit of effective representation, and fairness between the parties. Ms Murkitt did not seek to be represented and opposed the application. I determined that the factual matrix of this matter was relatively simple, and the determination of the matter would rely on a straightforward application of s.387 of the Act. I also determined that it would be unfair to allow Alarmnet to be represented taking into account the fact that Ms Murkitt was not represented.
[14] I exercised my discretion not to grant permission for Alarmnet to be represented.
[15] I advised the parties that I proposed to conduct a Determinative Conference.
[16] After taking into account the views of Ms Murkitt and Alarmnet and whether a Hearing would be the most effective and efficient way to resolve the matter, I considered it appropriate to conduct a Determinative Conference. (s.399 of the Act).
[17] A Determinative Conference was conducted on 18 and 19 June 2019. Ms Murkitt represented herself and Alarmnet was represented by Mr Jeremy Darlington (Security Operations Centre Manager).
[18] Witness statements in support of the Applicant were received from Ms Murkitt, 6 Mr David Brenchly,7 Ms Natalie Pavy,8 and Mr Yodren Brekalo9 All of these witnesses gave evidence.
[19] Alarmnet submitted a written list of objections to the information contained in the Applicant’s material. The objections refer to hearsay and/or opinion evidence and material which took the form of submissions rather than evidence, contained in the Applicant’s material. Whilst the Commission is not strictly bound by the rules of evidence, procedural fairness must be afforded. I accept that there are issues within the Applicant’s material. The Applicant is self- represented and not conversant with evidentiary niceties. I have determined to receive all of the material submitted by both parties and to consider the nature of the material when considering the weight to be applied.
[20] Ms Murkitt’s relevant evidence is summarised as follows:
• Ms Murkitt commenced employment in May 2004 as a casual employee and started full-time employment on 5 February 2005.
• On Friday 30 November 2018, a close work mate of Ms Murkitt was killed on his way home from work. Ms Murkitt held the view that Alarmnet did not sufficiently support its employees after this incident and was significantly impacted by this event.
• Ms Murkitt was not given nor signed a copy of the social media policy and that the policy was introduced as a result of excessive non-work related internet use and the downloading of porn.
• On 22 February 2019, Alarmnet would have been aware (through the receipt of medical reports) about Ms Murkitt suffering from a psychological injury which was attributable to the conduct of the new management.
• Ms Murkitt made the Facebook post and contends it is true and correct.
• Ms Murkitt did not appear to expect that the post would become a topic of discussion at the workplace.
• The post was made on the same day that she was advised by an independent psychiatrist that she would not be able to return to the workplace as it would be too toxic environment. Ms Murkitt was angry that she would not be going back to her place of employment.
• Ms Murkitt attended the meeting with Mr Bridge and Mr Aslanis on 5 March 2019 to discuss the making of the post. Ms Murkitt was accompanied by a support person.
• Prior to the formal commencement of the disciplinary meeting, Ms Murkitt was introduced to Ms Aslanis and said “Hi John, I have heard a lot about you and none of it’s been good”. Ms Murkitt contends she had a smile on her face and that she was sarcastic in her comment to Ms Aslanis about not hearing anything good about him. 10
• The account of the disciplinary meeting of 5 March 2019 given by Ms Pavey (and Mr Aslanis) is largely agreed. Ms Murkitt denied that she was confrontational and less than friendly during the meeting.
• Ms Murkitt gave Mr Bridge two “farewell” cards at the disciplinary meeting written to the control room staff.
• On 6 March 2019, she received a letter by email advising that her employment had been terminated.
• Ms Murkitt had not been the subject of any prior disciplinary outcome.
• Post-dismissal Ms Murkitt has been in receipt of workers compensation payments which are about the same as her wages.
• Ms Murkitt denies she said she would be embarrassed to return to Alarmnet, but said words to the effect of “we didn’t have the time any more to give customer service like all the years before the new management took over” and that she was “unable to come back to work as the Return to Work doctors, investigators and specialists had all said she would not be allowed to return due to the toxicity and workload imposed by the new management.”
• Ms Murkitt contends that she was dismissed because of the WorkCover claims, given the proximity of the decision to the receipt of the Return to Work reports on 16 February 2019.
• Ms Murkitt contends that Alarmnet was not financially impacted by the post.
• Ms Murkitt initially denied that the emails sent post-dismissal were intimidating but during the Hearing accepted that that many of the emails could appropriately be so characterised.
• Ms Murkitt’s statement detailed a negative view of the treatment of staff by Alarmnet which she appears to have formed post-dismissal.
• Ms Murkitt contends that the dismissal was unfair. Ms Murkitt did not seek reinstatement. 11
• During her evidence Ms Murkitt made numerous references 12 that she would not have returned to work even if not dismissed.
• Ms Murkitt conceded that the Facebook post was not in the interests of Alarmnet. 13
• Ms Murkitt was aware of the social media policy but not the full extent of it. 14
• Ms Murkitt advised she prepared the farewell cards (which were presented at the disciplinary meeting) and that they were not prepared in contemplation of being dismissed, she had made a decision not to return to the workplace based on advice she had received. 15
[21] Mr Brenchley’s relevant evidence is summarised as follows:
• He worked as an operator at Alarmnet and had worked with Ms Murkitt for in excess of 12 years. 16
• He saw the Facebook post made by Ms Murkitt in late February 17.
• The post was common knowledge at Alarmnet and the subject of discussions between staff. 18
• A copy of the employee manual which contained the social media policy was available at each operator’s desk. 19
• Mr Brenchley believed that when Ms Murkitt made the post, she was very upset about the way she had been treated. 20
• Mr Brenchley believed that the post was circulated by a work colleague who had an “axe to grind” with Ms Murkitt.
[22] Ms Pavy’s relevant evidence is summarised as follows:
• On 5 March 2019 she attended a disciplinary meeting between Ms Murkitt, Mr Bridge and Mr John Aslanis.
• Prior to the commencement of the disciplinary meeting whilst Ms Murkitt was being introduced to Ms Aslanis she heard Ms Murkitt say to Mr Aslanis “I have heard a lot about you and none of its been good.” 21
• Mr Bridge asked Ms Murkitt if she wrote the Facebook post and Ms Murkitt agreed she made the post and advised it was because she was angry. Ms Murkitt was asked if she was not willing to come back to work, to which Ms Murkitt replied, “I wouldn’t use the word willing, I have been instructed by two WorkCover specialists that I am not able to return”.
• Ms Pavy initially believed that Mr Aslanis’ recording of the meeting was incorrect but agreed with the account recorded in his notes. 22
• Mr Pavy explained that at the meeting Ms Murkitt stated she did not want to work for the current management, and gave Mr Bridge two envelopes. 23
[23] Mr Brekalo’s relevant evidence is summarised as follows:
• He is Ms Murkitt’s partner.
• Whilst he met Ms Murkitt prior to the disciplinary meeting, she told him there was no need for him to attend.
• He entered the Alarmnet building with Ms Murkitt, met Mr Bridge and Mr Aslanis and then left after Ms Murkitt said she did not need him there.
• Mr Brekalo waited in the car park until Ms Murkitt returned about 10 minutes later. Ms Murkitt told him everything was fine and that she would talk to him that night. He then left.
[24] Witness statements in support of the Respondent were received from Mr Darlington (Security Operations Centre Manager), 24 Mr Aslanis (Bureau Manager)25, and Mr Stephen Bridge (Business Manager).26 The Respondent also tendered a bundle of documents exchanged between Ms Murkitt and persons employed by Alarmnet, and their representative, during the period between 6 March 2019 and 30 May 2019.27
[25] Mr Darlington’s relevant evidence is summarised as follows:
• Between 25 January 2017 and 4 April 2019 he was a Director of Alarmnet. Alarmnet is an associated entity of Staysafe (Aust) Pty Ltd (Staysafe).
• He is the Security Operations Centre Manager for Staysafe.
• Neither Staysafe nor Alarmnet employ dedicated Human Resources personnel.
• On 28 June 2017, Staysafe acquired Alarmnet which had been previously operated by Melissa and Gary Palmer. The Palmers left the business in July 2018.
• Ms Murkitt was offered continuing employment as a control room operator in writing by Alarmnet on 6 June 2017. The offer included a term which required Ms Murkitt to use her best endeavours to promote and enhance the interests, welfare, business, profitability, growth and reputation of the Company; and not to intentionally do anything that is or may be harmful to the Company. 28
• On 22 August 2017, Alarmnet re-published a Policy and Procedure Manual. Ms Murkitt was emailed a copy of the manual and advised that the manual was also available at her workstation. 29 Page 13 of the manual contained a social media policy which referred to the use of Facebook and required that employees refrain from posting inappropriate material (which included material that was intended (or could possibly) cause insult, offence, intimidation or humiliation to the Company or its clients, business partners or suppliers. The policy noted that a breach may result in disciplinary action including termination of employment.30
• Mr Darlington said he was advised that Ms Murkitt worked her last shift on 5 December 2018 as she had been unfit to work from that date and that she was receiving workers compensation payments in respect of two injuries.
• On 21 February 2019, Mr Darlington received an email from Mr Bridge (Business Manager) that included a copy of a Facebook post made by Ms Murkitt.
• Mr Darlington was concerned about the post and he formed the view that it attacked the business, its Directors and the service provided to clients. Mr Darlington was concerned it could have adversely affected the business. Mr Darlington sought advice about the matter.
• On 27 February 2019, Mr Darlington emailed Ms Murkitt requesting her attendance at a meeting to discuss the Facebook post, advising that he considered the conduct to be serious misconduct and that her continued employment was at risk. Ms Murkitt was invited to bring a support person. The email also contained an extract from the social media policy. 31
• Ms Murkitt responded by email on 28 February 2019 and asked how the post had come to the Company’s attention as the post was made in a manner that was only visible to her friends and questioned if Alarmnet had breached her privacy. On the same day, Ms Murkitt sent an email to the control room complaining that someone out of 3 potential friends at the workplace, had “leaked” the Facebook post to “the bosses” and advised she was looking forward to meeting the person to “hash it out”.
• The disciplinary meeting took place on 5 March 2019 and Mr Aslanis attended on behalf of Mr Darlington.
• After discussing the content of the disciplinary meeting with Mr Aslanis, Mr Darlington came to the view that the Ms Murkitt was aware of the social media policy, the conduct was deliberate, no remorse was shown, and Ms Murkitt did not appear to be aware about the potential impact of the post.
• On 6 March 2019, Mr Darlington determined that Ms Murkitt’s employment should be terminated and sent her an email informing her of the decision 32.
• There was a dispute over the words used by Ms Murkitt during the interview – as detailed in the letter of termination. Ms Murkitt contended she said she was “angry” where as the termination letter referred to her as being “mad”.
• Mr Darlington advised that he took into account Ms Murkitt’s medical condition (although he said he was not privy to the written medical assessments that were tendered) and considered alternatives to dismissal. 33 He determined to dismiss Ms Murkitt as a result of her conduct and the lack of any remorse or contrition.
• Since the dismissal, Mr Darlington has been advised by one of Ms Murkitt’s “friends” that a client of the business viewed the post. There were 3 other Alarmnet employees who had access to the post.
• Mr Darlington submitted a letter dated 12 March 2019 from Gallagher Basset indicating that Ms Murkitt had been receiving a benefit of $1,090.53 (gross) per week since 3 December 2018 in respect of a claim for “adjustment disorder with depressed mood which it was accepted as having arisen from her employment.” 34 Ms Murkitt was also in receipt of a benefit of $40.29 (gross per week from 27 February 2019 in respect of carpel tunnel syndrome which it was also accepted arose from her employment. Gallagher Basset had calculated Ms Murkitt’s average earnings (including some overtime) as $1,130.82 as at 29 March 2019 and the payments were being made at 100% of that level35.
• Mr Darlington provided a large number of communications between Ms Murkitt and employees of Alarmnet made between 6 March 2017 and 30 May 2019. Many of the communications were critical or insulting towards the recipient and/or Alarmnet.
• Whilst Mr Darlington asserted there were previous performance issues with Ms Murkitt, he was unable to provide any details about these concerns or any evidence of a formal performance management process. 36
[26] Mr Aslanis provided two statements 37 and gave evidence. His relevant evidence is summarised as follows:
• He was employed by Staysafe (Australia) Pty Ltd as Bureau Manager.
• In February 2019 he was shown a Facebook post by Mr Darlington. He was shocked by the content.
• He attended a disciplinary meeting in respect of the Facebook post on 5 March 2019 and took handwritten notes of what was said at the meeting. 38 These meeting notes were then emailed to Mr Darlington on 5 March 2019. These notes are consistent with the evidence of Mr Darlington and Mr Bridge.
• Ms Murkitt was accompanied by Ms Pavy.
• He described Ms Murkitt’s behaviour towards him as less than friendly and she made a comment about him that “she had heard a lot about him and none of it was good”.
• At the end of the meeting, Ms Murkitt handed Mr Bridge two envelopes, one addressed to the control room the other addressed to Mr Brenchley.
• Since Ms Murkitt’s dismissal he has received a number of emails which he described as harassing and intimidating. Some employees of Alarmnet have complained about receiving the emails.
[27] Mr Bridge provided a statement 39 and gave evidence. His relevant evidence is summarised as follows:
• He works for Alarmnet, but did not directly supervise Ms Murkitt.
• On or about 19 February 2019, he was made aware of the Facebook post by an employee of Alarmnet. He thought the post was untoward and uncalled for and was in breach of the social media policy.
• On 27 February 2019, Mr Darlington advised him that he had received advice and wanted a meeting arranged to allow the allegation to be discussed with Ms Murkitt.
• The meeting was conducted on 5 March 2019. The meeting was attended by Mr Darlington, Mr Aslanis, Mr Bridge, Ms Murkitt and Ms Pavy.
• During the introduction process, Ms Murkitt said (sarcastically) to Mr Aslanis words to the effect of, “I have heard about you and none of its good”.
• Mr Bridge’s account of the meeting included Ms Murkitt admittedly to being the author of the post and having received the social media policy. Ms Murkitt said that when she made the post she was angry. She was embarrassed to be a part of Alarmnet and the business was going downhill. Ms Murkitt did not want to work with the current management.
• Mr Bridge felt Ms Murkitt’s demeanour was very negative and standoffish.
• The meeting lasted ten minutes.
• On 6 February 2019, Mr Darlington advised Mr Bridge that he had decided to dismiss Ms Murkitt.
• After the dismissal, Ms Murkitt sent numerous communications to employees and targeted a staff member with threatening emails.
[28] Ms Murkitt did not file written submissions.
[29] Alarmnet filed written submissions which contended that:
• Ms Murkitt was aware of and understood the social media policy.
• Ms Murkitt had breached the obligation under her contract of employment.
• The Facebook post was intentional.
• Ms Murkitt’s actions constituted serious misconduct.
• Ms Murkitt was advised of the valid reason and given an opportunity to respond.
• No remorse was shown.
• Ms Murkitt was afforded procedural fairness.
• Alarmnet does not employ a dedicated Human Resources person.
• Since the dismissal, Ms Murkitt has received one hundred percent of her wage in workers compensation payments and will not sustain any loss.
• The Commission should consider Ms Murkitt’s post-dismissal conduct.
• Any award of compensation should be reduced due to misconduct.
[30] There is no dispute that Ms Murkitt was dismissed at the initiative of Alarmnet.
[31] I am satisfied that the Ms Murkitt has been dismissed within the meaning of s.385 of the Act.
[32] It is not disputed that Ms Murkitt was protected from unfair dismissal within the meaning of s.382 of the Act.
[33] Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission 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.
[34] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me. 40
[35] I set out my consideration of each below.
[36] In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded” 41 and should not be “capricious, fanciful, spiteful or prejudiced.”42 However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.43
[37] Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination. 44 The question of whether the alleged conduct took place, and what it involved, is to be determined by the Commission on the basis of the evidence in the proceedings before it.45
[38] There was no dispute that Ms Murkitt made the Facebook post. Ms Murkitt accepted that the post was critical of Alarmnet’s management team.
[39] Ms Murkitt did not concede that it was a breach of the social media policy. Other than the distribution of the Policy Manual in 2017 and making it available at the workplace, it does not appear that Alarmnet took any further action to educate or remind employees of their obligations under the various policies included the social media Policy.
[40] Ms Murkitt’s Facebook post, despite her privacy settings, became the subject of discussion by a number of Alarmnet employees and one client. This has resulted in a connection between the action of making the post and Ms Murkitt’s employment. Ms Murkitt took steps to ascertain who made the post, and the identity of the person who provided the post to the workplace. This is not a relevant matter, the fact that the post became available to and the topic of conversation in the workplace is a sufficient connection. Ms Murkitt advised that at least 4 of the persons who could have read her post worked at Alarmnet.
[41] Ms Murkitt was interviewed about the post on 5 March 2019. The interview was short. Ms Murkitt advised she made the post, that it was a private opinion made to her “friends”, that she did not intend to come back to work and that the post was made in anger. The thrust of what was said at the interview is not in dispute.
[42] Ms Murkitt appropriately conceded that the Facebook post was in breach of the obligation in her contract of employment “not to intentionally do anything that is or maybe harmful to the Company”. I find that the nature of the post breached that obligation and the requirements of the social media policy.
[43] There was insufficient evidence to support Ms Murkitt’s contention that she was dismissed due to her workers compensation claim.
[44] Having regard to the matters I have referred to above, I find that there was a valid reason for the dismissal related to Ms Murkitt’s conduct.
[45] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment, 46 and in explicit47 and plain and clear terms.48
[46] Ms Murkitt was advised of the valid reason at the disciplinary meeting on 5 March 2019. It appears that Alarmnet took into account some matters which were not put to Ms Murkitt, however in the circumstances this represents a relatively minor breach of procedural fairness and may have been due to the lack of internal Human Resources support.
[47] Having regard to the matters referred to above, I find that the Applicant was notified of the reason for her dismissal prior to the decision to dismiss her being made.
[48] An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment. 49
[49] The opportunity to respond does not require formality and this factor is to be applied in a common sense way to ensure the employee is treated fairly. 50 Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements.51
[50] Ms Murkitt was given an opportunity to respond to the valid reason at the disciplinary meeting on 5 March 2019.
[51] Ms Murkitt was accompanied by a support person at the disciplinary interview.
[52] As the dismissal did not relate to unsatisfactory performance, this factor is not relevant to the present circumstances.
[53] Neither party submitted that the size of the Respondent’s enterprise was likely to impact on the procedures followed in effecting the dismissal.
[54] Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant.
[55] I consider that the following matters are relevant to my consideration of whether the dismissal was harsh, unjust or unreasonable:
• Ms Murkitt had been employed for almost 15 years and was not the subject of any formal disciplinary action.
• I accept Ms Murkitt’s evidence that she was upset at the way Alarmnet handled the death of Mr Peter Hand and of the way in which it was managing the employees.
• Ms Murkitt was suffering from a psychological condition at the time that the conduct occurred and at the time of the disciplinary meeting. This was supported by medical reports. That Ms Murkitt was also suffering from a medical condition was known to Alarmnet. I accept that Alarmnet may not have received the medical reports which provided further information as to the condition. Ms Murkitt continued to be unfit for work as a result of this condition and was receiving benefits under the workers compensation legislation.
• Mr Darlington advised that he took into account Ms Murkitt’s medical condition but as she showed no remorse or responsibility for her actions he determined dismissal was the appropriate outcome.
• It appears to me that Alarmnet did not sufficiently take into account the impact of her medical condition at the time it determined to dismiss her. It appears likely that Ms Murkitt’s medical condition continued to impact on her conduct until after the dismissal (including when she sent a large number of inappropriate communications to Alarmnet employees). Whilst Ms Murkitt’s medical condition does not excuse her conduct, it goes some way to explain it.
• The Facebook post was a single event, and did not result in any financial harm to Alarmnet. I accept it resulted in disharmony in the workplace.
• In my view, the sanction of dismissal in the light of Ms Murkitt’s medical condition, length of service, the lack of any previous performance issues, was not a proportionate outcome.
[56] I have made findings in relation to each matter specified in section 387 as relevant.
[57] I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable. 52
[58] Having considered each of the matters specified in section 387 of the Act, I am satisfied that the sanction of dismissal of the Applicant was harsh in these cicumstances.
[59] I am therefore satisfied that the Applicant was unfairly dismissed within the meaning of section 385 of the Act.
[60] Being satisfied that the Applicant:
• made an application for an order granting a remedy under section 394;
• was a person protected from unfair dismissal; and
• was unfairly dismissed within the meaning of section 385 of the Act.
[61] I may, subject to the Act, order the Applicant’s reinstatement, or the payment of compensation to the Applicant.
[62] Under section 390(3) of the Act, I must not order the payment of compensation to the Applicant unless:
(a) I am satisfied that reinstatement of the Applicant is inappropriate; and
(b) I consider an order for payment of compensation is appropriate in all the circumstances of the case.
[63] Ms Murkitt did not seek reinstatement, and Alarmnet opposed such an order.
[64] Having regard to the matters referred to above and the post-dismissal conduct of the Ms Murkitt, I consider that reinstatement is inappropriate.
[65] Having found that reinstatement is inappropriate, it does not automatically follow that a payment for compensation is appropriate. As noted by the Full Bench, “[t]he question whether to order a remedy in a case where a dismissal has been found to be unfair remains a discretionary one…” 53
[66] Section 392(2) of the Act requires all of the circumstances of the case to be taken into account when determining an amount to be paid as compensation to the Applicant in lieu of reinstatement including:
(a) the effect of the order on the viability of the Respondent’s enterprise;
(b) the length of the Applicant’s service;
(c) the remuneration that the Applicant would have received, or would have been likely to receive, if the Applicant had not been dismissed;
(d) the efforts of the Applicant (if any) to mitigate the loss suffered by the Applicant because of the dismissal;
(e) the amount of any remuneration earned by the Applicant from employment or other work during the period between the dismissal and the making of the order for compensation;
(f) the amount of any income reasonably likely to be so earned by the Applicant during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that the Commission considers relevant.
[67] I consider all the circumstances of the case below.
[68] There was no submission made on this point, and in any event I am satisfied that an award of compensation would not affect the viability of the employer.
[69] The Applicant’s length of service was just under 15 years.
[70] As stated by a majority of the Full Court of the Federal Court, “[i]n determining the remuneration that the Applicant would have received, or would have been likely to receive… the Commission must address itself to the question whether, if the actual termination had not occurred, the employment would have been likely to continue, or would have been terminated at some time by another means. It is necessary for the Commission to make a finding of fact as to the likelihood of a further termination, in order to be able to assess the amount of remuneration the employee would have received, or would have been likely to receive, if there had not been the actual termination.” 54
[71] Ms Murkitt stated in her written material and her evidence repeatedly that she would not have continued to work for Alarmnet based on the medical advice she had received.
[72] Ms Murkitt took two cards to her disciplinary interview which she asked be given to the control room employees. Ms Murkitt described these as “farewell cards”. In her evidence Ms Murkitt said that she had no intention of returning to work, based on her advice from her medical advisors. The farewell cards were not prepared in the anticipation of her dismissal. The unlikelihood of Ms Murkitt returning to work is consistent with the evidence.
[73] In the circumstances, I believe it is reasonable to assess compensation in this matter on the basis that Ms Murkitt would not have continued to work for Alarmnet if she had not been dismissed.
[74] The Applicant must provide evidence that they have taken reasonable steps to minimise the impact of the dismissal. 55 What is reasonable depends on the circumstances of the case.56
[75] Ms Murkitt has not been able to work due to her continuing medical condition.
[76] The evidence before me indicates that Ms Murkitt has (by virtue of receiving workers compensation payments) continued to receive her pre-dismissal income as at the date the matter was heard. Ms Murkitt has not suffered any financial loss as a result of the dismissal up to that point.
[77] Ms Murkitt has been in receipt of workers compensation payments at the one hundred percent level since her dismissal on 6 March 2019. Unless Ms Murkitt recovers she will continue to receive those payments until 5 December 2019 at which time they would reduce to eighty percent of her pre-injury earnings.
[78] Since the dismissal, Ms Murkitt has made a large number of communications to Alarmnet, including both individual employees and its representatives. 57 The communications are not disputed. A large number of these communications are of a threatening and/or intimidating manner. They have understandably adversely impacted the employment relationship.
[79] As noted by the Full Bench, “[t]he well-established approach to the assessment of compensation under s.392 of the Act… is to apply the “Sprigg formula” derived from the Australian Industrial Relations Commission Full Bench decision in Sprigg v Paul’s Licensed Festival Supermarket (Sprigg). 58 This approach was articulated in the context of the Act in Bowden v Ottrey Homes Cobram and District Retirement Villages59.”60
[80] In all the circumstances, I do not consider that payment of compensation is appropriate because of my view that Ms Murkitt would not have continued to work for Alarmnet if she had not been dismissed, the workers compensation payments received and her misconduct. I therefore decline to order any remedy, notwithstanding that I found the Applicant was a person protected from unfair dismissal and had been unfairly dismissed. 61
[81] In accordance with s.392(4) of the Act, I make no allowance for any shock, distress or humiliation that may have been caused by the dismissal.
COMMISSIONER
Appearances:
C Murkitt the Applicant
J Darlington on behalf of the Respondent.
Hearing details:
18 June.
Adelaide.
2019.
Printed by authority of the Commonwealth Government Printer
<PR711282>
1 See attachment JP4 in Exhibit R4.
2 See attachment JP5 in Exhibit R4.
3 See Attachment JP7 ion Exhibit R4.
4 Warrell v Fair Work Australia [2013] FCA 291.
5 Ibid.
6 Exhibit A3 Statement, Exhibit A4 (Reply Statement re Mr Bridge), Exhibit A5 (Reply Statement re Ms Aslanis), Exhibit A6 (Reply Statement re Mr Darlington), Exhibit A7 (incomplete correspondence re death of Mr Peter Hand), note that Exhibit R2 is a complete copy of Exhibit A7.
7 Exhibit A1.
8 Exhibit A2.
9 Exhibit A12.
10 PN173.
11 PN1496.
12 PN1419, PN1422, PN1508.
13 PN1472.
14 PN1480, PN1478.
15 PN1413-1421.
16 PN70-71.
17 PN60.
18 PN60-63.
19 PN84-92.
20 PN 52,57.
21 PN175.
22 PN147.
23 PN164.
24 Exhibit R4.
25 Exhibit R5 and Exhibit R6 (Reply Statement).
26 Exhibit R7.
27 Exhibit R1.
28 Exhibit R4 attachment JD1.
29 Exhibit R4 attachment JP5.
30 Exhibit R4 attachment JP5.
31 Exhibit R4 attachment JD11.
32 Exhibit R4 attachment JD16.
33 PN1112-1161.
34 Exhibit R4 attachment JP9.
35 Exhibit R4 JP9.
36 PN1365-1374.
37 Exhibit R5 and R6.
38 Exhibit R6.
39 Exhibit R7.
40 Sayer v Melsteel Pty Ltd [2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].
41 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
42 Ibid
43 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.
44 Edwards v Justice Giudice [1999] FCA 1836, [7].
45 King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24].
46 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
47 Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).
48 Ibid.
49 Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), [75].
50 RMIT v Asher (2010) 194 IR 1, 14-15.
51 Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.
52 ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]–[7].
53 Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter [2014] FWCFB 7198, [9].
54 He v Lewin [2004] FCAFC 161, [58].
55 Biviano v Suji Kim Collection PR915963 (AIRCFB, Ross VP, O’Callaghan SDP, Foggo C, 28 March 2002), [34] citing Lockwood Security Products Pty Ltd v Sulocki and Ors PR908053 (AIRCFB, Giudice J, Lacy SDP, Blair C, 23 August 2001), [45].
56 Biviano v Suji Kim Collection PR915963 (AIRCFB, Ross VP, O’Callaghan SDP, Foggo C, 28 March 2002), [34] citing Payzu Ltd v Saunders [1919] 2 KB 581.
57 Exhibit R1.
58 (1998) 88 IR 21.
60 Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries [2016] FWCFB 7206, [16].
61 Smith and Others v Moore Paragon Australia Ltd (2004) 130 IR 446 at par [32].