DECISION

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

Jennifer Fauni
v
Bright Lightz Cleaning Service
(U2020/1737)

Application for an unfair dismissal remedy – contract cleaning industry – small business – dismissal of part time cleaner for serious misconduct – applicant ‘massaged’ a teacher at a School where she cleaned – Small Business Fair Dismissal Code – allegation not denied – reasonable belief employee’s conduct justified immediate dismissal – dismissal Code compliant – no jurisdiction – application dismissed.

BACKGROUND

[1] Ms Jennifer Fauni commenced employment on 30 April 2018 with Bright Lightz Cleaning Service Australia (the ‘respondent’ or the ‘Company’), a small contract cleaning company in the Northern Territory, employing three persons. She was employed in a permanent part time role (25 hours a week) on one of the Company’s major contracts with the Northern Territory Department of Education. Ms Fauni was dismissed for serious misconduct on 7 February 2020, following an incident which was said to have occurred in mid-September 2019 in which she massaged a teacher, Ms Vanessa Keating, during work hours at the School where she worked. The termination of employment email reads:

‘Hi Jennifer.

We have just been informed by [school name provided] that you provided a service during business hours to one of the teachers late last year which was outside of our Contract of Services.

Unfortunately we have to terminate your employment as your actions breached our Contract of Services with the Northern Territory education department and has very serious repercussions.

In accordance with legislation, you are being given 2 weeks notice that your employment will cease on the 21 Feb 20.

We regret to inform you of this decision as unfortunately we have no recourse due to legal implications of the Breach of Services.’

[2] On 14 February 2020, Ms Fauni (hereafter referred to as the ‘applicant’) filed a claim for a remedy for alleged unfair dismissal, pursuant to s 394 of the Fair Work Act 2009 (the ‘Act’) in which she seeks compensation. In accordance with my usual practice, I listed the matter for hearing, issued directions in preparation for the hearing and fixed a date for a further conciliation on 7 April 2020. At the conciliation, the applicant was assisted by a Tagalog interpreter. No settlement of the claim was reached.

[3] Relevantly, the applicant does not dispute that the massage incident occurred, but claims she had only done so at the teacher’s request to help her with back pain. Given this admission, the requirements of s 397 of the Act, and the fact that both parties were unrepresented, it was agreed that I determine the matters ‘on the papers’ filed and further short submissions.

SUBMISSIONS

The respondent’s objection

[4] As a small business, the respondent contended that it had complied with the Small Business Fair Dismissal Code (the ‘Code’) as the applicant was dismissed without notice, when the employer believed on reasonable grounds that the employee’s conduct was sufficiently serious to justify immediate dismissal; being a serious breach of work health and safety procedures.

[5] As to the incident, the respondent submitted that on a date in September 2019, the applicant stopped her assigned cleaning duties and took it upon herself to provide a massage service to one of the teachers at the School. Further, that the applicant failed to notify the employer of her actions, until it was discovered some time later.

[6] The respondent said that as a Special Needs School, there are strict rules and contractual terms governing all employees who provide services to the School which are well known and must be complied with. Obviously, the respondent is not registered to provide massage services to the Northern Territory Department of Education.

[7] It was said that when confronted with the allegation, the applicant did not respond or provide any information to justify her conduct. As the allegation had been independently verified, the applicant was dismissed with two weeks’ notice.

[8] In a further submission, the respondent observed that the applicant had admitted squeezing the teacher’s back with her hands for two minutes and then using her ‘toe finger’ to presumably walk on her back, when she was laying on the floor. As Ms Keating’s statement makes no reference to laying on the floor, her evidence would not be accepted. Further, there was no evidence that the applicant had reported the incident to management.

[9] The respondent noted that the applicant, together with two other employees, was made aware of her responsibilities and School rules on 30 April 2018, in the presence of the School’s Finance Manager.

The applicant’s case

[10] In her Form F2 – Unfair dismissal application – the applicant said she received no written warning and there was no investigation of the incident. She had not been informed of any rule prohibiting her from massaging the teacher and the ‘allegation was not acceptable to me’. She regarded her dismissal as ‘illegal’ and sought a ‘penalty’ against the employer. In a witness statement, the applicant claimed Ms Keating asked for help as she was uncomfortable and in pain. She asked her to squeeze her shoulder. She did so for about two minutes and ‘using my ‘toe finger’ I slowly squeezed her back for less than a second’. The applicant said her co-worker, ‘Ms Jennifer’, witnessed the incident.

[11] The applicant said she went to the home of the employer after work and reported the incident. Two co-workers were present (neither of whom gave any evidence). The applicant said she waited for a week, but nothing happened. She then went on a family holiday for a few weeks, adding that ‘Ms Jennifer’ was on holiday from 28 September 2020 – 4 February 2020.

[12] On 7 February 2020, the applicant received the email terminating her employment; see: [1] above. She was shocked and speechless. She and her husband went to the employer’s home to get an explanation. She listened to their reasons, but did not agree with the dismissal.

[13] Although she was given two weeks’ notice, the applicant said she could not work for the employer again and felt stressed and depressed and filed her unfair dismissal claim on 14 February 2020 to seek justice.

[14] The applicant also relied on a statement from Ms Keating which reads:

‘This document is a factual declaration in the defense of Jennifer Fauni as I have recently became (sic) aware Jennifer lost her employment with Bright Lightz Cleaning Service after I asked her if she would squeeze my shoulders as I was experiencing discomfort at the time. This occurred for less than two minutes and then I returned to work and Jennifer continued cleaning classroom 4B.

My name is Vanessa Keating, I am a Special Education Support Officer at [school name provided]. In 2019, my allocated classroom was 4B. The exact date of this situation is unknown and the time was somewhere after 3pm.

This occurred only once and I was grateful that Jennifer was there to help.’

CONSIDERATION

[15] Section 385 of the Act defines an unfair dismissal as follows:

What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(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.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.

[16] All four criteria described above must be met for a person to be unfairly dismissed and become entitled to bring an application to the Commission for an unfair dismissal remedy.

[17] Section 388 of the Act deals with the Code as follows:

The Small Business Fair Dismissal Code

(1) The Minister may, by legislative instrument, declare a Small Business Fair Dismissal Code.

(2) A person's dismissal was consistent with the Small Business Fair Dismissal Code if:

(a) immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person's employer was a small business employer; and

(b) the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal.

[18] Section 23 of the Act defines a ‘small business employer’ relevantly as a ‘national system employer is a small business at a particular time if the employer has fewer than 15 employees at the time’. The particular time is the time when the employee had been dismissed. There is no dispute that at the time of the applicant’s dismissal, the employer was a small business to which the Code applied.

[19] The legislative instrument containing the Code declared by the Minister pursuant to s 388(1) is as follows:

Commencement

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

Summary dismissal

It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee's conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.

Other dismissal

In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee's conduct or capacity to do the job.

The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.

The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee's response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer's job expectations.

Procedural matters

In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.

A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to the Fair Work Commission, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.

[20] Section 12 of the Act defines ‘serious misconduct’ as having ‘the meaning prescribed by the regulations’. Regulation 1.07 of the Fair Work Regulations 2009 reads, inter alia:

Meaning of serious misconduct

(1) For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.

(2) For subregulation (1), conduct that is serious misconduct includes both of the following:

(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;

(b) conduct that causes serious and imminent risk to:

(i) the health or safety of a person; or

(ii) the reputation, viability or profitability of the employer's business.

[21] It is common ground the applicant was dismissed (albeit with two weeks’ notice not worked) for serious misconduct. Therefore, the summary dismissal section of the Code applies in this case.

[22] The application of this section of the Code was described in Pinawin t/a RoseVi.Hair.Face.Body v Domingo [2012] FWAFB 1359 (‘Pinawin’), where the Full Bench said at [29]:

‘[29] We believe that the approach and observations in these two decisions are correct. There are two steps in the process of determining whether this aspect of the Small Business Fair Dismissal Code is satisfied. First, there needs to be a consideration whether, at the time of dismissal, the employer held a belief that the employee’s conduct was sufficiently serious to justify immediate dismissal. Secondly it is necessary to consider whether that belief was based on reasonable grounds. The second element incorporates the concept that the employer has carried out a reasonable investigation into the matter. It is not necessary to determine whether the employer was correct in the belief that it held.’

[23] In Ryman v Thrash Pty Ltd t/a Wisharts Automotive Services [2015] FWCFB 5264, the Full Bench elaborated further and said at [40]-[41]:

‘[40] Whether the employer had “reasonable grounds” for the relevant belief is of course to be determined objectively.

[41] In summary, drawing on the conclusions stated above and the ratio in Pinawin, we consider that the “Summary dismissal” section of the Code operates in the following way:

(1) If a small business employer has dismissed an employee without notice - that is, with immediate effect - on the ground that the employee has committed serious misconduct that falls within the definition in reg.1.07, then it is necessary for the Commission to consider whether the dismissal was consistent with the “Summary dismissal” section of the Code. All other types of dismissals by small business employers are to be considered under the “Other dismissal” section of the Code.

(2) In assessing whether the “Summary dismissal” section of the Code was complied with, it is necessary to determine first whether the employer genuinely held a belief that the employee’s conduct was sufficiently serious to justify immediate dismissal, and second whether the employer’s belief was, objectively speaking, based on reasonable grounds. Whether the employer has carried out a reasonable investigation into the matter will be relevant to the second element.’

[24] Plainly, there was no requirement for the employer to have held a belief that the employee’s conduct was sufficiently serious to justify immediate dismissal as the conduct was admitted and although explained, it was conduct which on any objective view, was a serious breach of the respondent’s contractual terms with the Northern Territory Department of Education. This put at risk the contract of one of the respondent’s major clients.

[25] While I accept that the applicant strongly believes she had helped a person in discomfort after being asked to do so, the applicant should have politely refused, particularly as she was on shift and on the School’s premises. This was a far cry from a person reacting to some medical emergency, in order to help a person in serious trouble.

[26] Moreover, I consider it was inappropriate for Ms Keating to have asked the applicant to massage her. However, the fact the applicant considered she could do so, not only compromised the employer’s contractual arrangements with the Northern Territory Department of Education, but may have resulted in an injury to Ms Keating, if something had gone wrong. Although not necessarily relevant there was no evidence that the applicant has any qualifications in massage therapy, although it is curious why Ms Keating had agreed to both a shoulder massage and a back massage, presumably with the applicant ‘working’ her feet (toes) on Ms Keating’s back.

[27] Accordingly, I am satisfied that the employer had admitted conduct which was sufficiently serious to justify the applicant’s immediate dismissal. As to the applicant’s claim of no investigation of the allegation, this was also unnecessary, as there was nothing to investigate. Ms Keating’s version of events, or the recollections of what the applicant said was a co-worker witness, would not have altered the seriousness of the conduct, or the respondent’s decision to dismiss her.

[28] In my view, the fact the applicant received two weeks’ pay in lieu of notice was a reasonable response from the employer, which it was strictly not required to pay.

[29] The Commission is satisfied that the respondent complied with the Code in dismissing the applicant on 7 February 2020. Accordingly, there can be no unfair dismissal, pursuant to s 385 of the Act, and the application by Ms Fauni must be dismissed. I so order.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR721230>