| [2020] FWC 5703 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Stephanie Fisher
v
Cabra-Vale Ex-Active Servicemen’s Club Ltd t/a Campbelltown RSL
(U2020/9912)
COMMISSIONER RIORDAN |
SYDNEY, 23 DECEMBER 2020 |
Application for an unfair dismissal remedy.
[1] On 20 July 2020, Ms Stephanie Fisher (the Applicant) filed with the Fair Work Commission (the Commission) an application (the Application) for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (the Act).
[2] The Application named Cabra-Vale Ex-Active Servicemen’s Club Ltd t/a Campbelltown RSL (the Respondent) as the Applicant’s former employer. The Applicant’s employment at the Respondent was covered by the Cabra-Vale Ex-Active Servicemen’s Club/s Limited and Cabra-Vale Diggers at Campbelltown RSL Employee Enterprise Agreement 2015-2018 (the Agreement).
[3] The Applicant commenced employment with the Respondent in February, 2018. During her employment the Applicant worked as a Food, Beverage and Gaming Attendant. The Applicant was dismissed on 30 June 2020; the Applicant’s termination letter stated that the Applicant was dismissed for misconduct.
[4] On 25 June 2020, the Applicant was asked to cover her nose ring and remove some ear studs by her supervisor. The Respondent’s Operations Manager, Mr Luke Whalan, also witnessed the Applicant using her mobile phone from the security camaras in his office while she was working in the poker machine cash booth. The Applicant was directed to attend a meeting by Mr Whalan. Mr Whalan did not provide the Applicant a precise reason for the meeting but simply said that it involved her work performance. The Applicant refused to attend the meeting.
[5] The Applicant claimed that she had previously been invited to meetings with Mr Whalan, which resulted, on two occasions, with her receiving an informal verbal warning in mid-2019 and allegedly a written warning in late 2019.
[6] It is not in dispute that the United Workers Union (UWU), of which the Applicant is a member, is currently undertaking a campaign in the hospitality industry. One of the elements of the campaign is for members to ask for any allegations to be provided in writing before attending any meeting with an employer.
[7] The UWU’s campaign poster states:
“KEEP THIS CHECK LIST HANDY IF YOU ARE EVER REQUESTED TO GO INTO GOING (sic) TO A MEETING BY ANY MEMBER OF MANAGEMENT.
1. Stay calm and ask the manager to explain why they would like to meet you.
Make sure you have another Union member with you that you trust for support.
Even if management advise you that the matter is small and a Union Official or delegate’s presence is not required, still insist on phoning the Member Rights Centre just to be sure.
2. Ask the manager to put this in writing and arrange for a mutually agreeable time to meet.
You are entitled to understand why you are being requested to attend a meeting.
You are entitled to be able to prepare for this meeting.
You are entitled to understand all of the details of the allegations made against you.
….
4. Remember, never feel pressured to go to a meeting with management alone.
If you are feeling pressured to attend a meeting with management, use the below script.
“I am entitled to know why you would like to meet with me. I have asked you several times to explain this and you have failed to provide this information. I now as a result feel pressured to meet with you I will be raising this with my Union and formalising it as a grievance against you”.”1F0F 1
[8] As luck would have it, after the Applicant initially refused to attend a meeting with Mr Whalan, an official of the UWU, Mr Danny Manich, was in the lunchroom of the Respondent. The Applicant was given permission to seek advice from Mr Manich. When the Applicant did not arrive at the meeting, Mr Whalan then approached the Applicant in the lunchroom and once again requested that she attend a meeting upstairs advising it was not a disciplinary meeting. Mr Manich advised Mr Whalan that the Applicant was not obliged to attend this meeting unless the Respondent advised the Applicant of the reasons for the meeting in writing. The Applicant allegedly repeated this claim when asked on a number of occasions to attend the meeting, with the option of bringing Mr Manich as a support person. It was not in dispute that, unbelievably, Mr Manich stated that he was not allowed to be the Applicant’s support person.
[9] When the Applicant refused to attend the meeting for a final time, the Applicant was stood down immediately for failing to follow a lawful direction.
[10] The Applicant was invited to a meeting on 29 June 2020 to discuss the Applicant’s refusal to attend a meeting. Relevantly, the correspondence
“Dear Stephanie,
RE: REFUSE REASONABLE DIRECTIVE.
I refer to the discussion we had yesterday and confirm that you are requested to attend a meeting at the Cabra-Vale Diggers Club, 1 Bartley Street Canley Vale, on Monday 29 June 2020 at 10.30am.
The meeting is to discuss the alleged refusal to cooperate and participate in an investigation process regarding your work performance. Accordingly, on Thursday 25 June 2020, I personally attended the lunchroom and asked for you to meet with me regarding some performance and work-related matters, which you refused.
You advised that your refusal was based on not having information to prepare, you were asked to move from the lunch room and attend function room to further the discussion, as the staff room is not appropriate for discussing work performance, you again refused this request.
It was explained that the club is within its rights to request a meeting to investigate work related matters and a support person was offered and refused. Attending the function room would have provided you with the information that you required to prepare, and another meeting could have been organised to follow up on the discussion. Despite this information being provided, you again refused.
You were further informed of the seriousness of refusing a reasonable directive and the possible consequences, to which you understood and chose to leave work rather than follow a reasonable directive to attend a private area to discuss the work and performance related matters.
You are asked to attend the meeting on Monday 29 June 2020 to respond to the allegations noted above, and provide any information or responses that you feel should be taken into consideration, or would justify the refusal to comply with reasonable directive in these circumstances.
As you were advised, refusing to follow a reasonable directive, is serious and wilful misconduct. Accordingly, the Club will be considering disciplinary action up to and including termination if the allegations are substantiated.
Due to the seriousness of the above we encouraged you to attend a meeting and have a witness or a representative present at the meeting.
Yours faithfully,
Luke Whalan”2F1F 2
[11] Mr John McShane, an official of the UWU attended this meeting with the Applicant. During the meeting the Applicant continued to assert that the Respondent must provide her with any allegations in writing before she would attend a meeting with Mr Whalan. It is not in dispute that Mr McShane asked the Applicant;
“You don’t mean every single meeting though?”
To which the Applicant replied:
“Yes I do.”
It is not in dispute that the Applicant maintained this stringent stance throughout the meeting.
[12] The Respondent terminated the Applicant on 30 June 2020.
“Dear Stephanie,
Re: TERMINATION OF EMPLOYMENT
On behalf of the Cabra-Vale Ex-Active Servicemen's Club ('Club'), I hereby advise that your employment is terminated for misconduct.
On 25 June 2020, you were invited to a show cause meeting to discuss your failure to comply with a reasonable and lawful direction to attend a meeting with your manager earlier that day.
On 29 June 2020, you and your representative met with the Club and you were given the opportunity to provide responses as to why you failed to comply with a reasonable and lawful direction and to show cause why the Club should not terminate your employment.
You advised; it was your right not to attend a meeting with a manager unless you were given notification in writing of what would be discussed at the meeting. You instructed you would not change your actions on the 25 June 2020 and that you would continue to not comply with any directions to meet with management unless they provided you notification in writing of what would be discussed.
The Club advised there was no right to have all communication in writing and discussed with you why this was not appropriate, as meetings with management were often quick, informal discussion or "coaching sessions" to help employees perform to the standard required. The Club also assured you if there was a serious conduct issue or consistent ongoing performance concerns that would likely result in termination or warnings the Club would as necessarily provide communications in writing.
You again confirmed you would not change your actions on the 25 June 2020 and confirmed that you would not comply with the reasonable and lawful direction to meet with your manager in the future unless you were given prior written notice of what would be discussed.
The Club has considered your responses and determined that you have failed to provide a substantial reason for failing to comply with the reasonable and lawful direction, you have failed to show any remorse for your actions, and you advised you would continue to fail to comply with reasonable and lawful direction in the future. The Club has therefore decided to terminate your employment. Your termination is effective 1 July 2020.
All statutory and employee entitlements shall be paid into your nominated bank account no later than 9 July 2020. As you know on 26 July 2019 you signed an authorised deduction form for the cost of replacement of any uniforms not returned to Club dry cleaned at termination. If you do not want us to deduct these monies from your final pay, could you please return your uniforms to the Club prior to 8 July 2020.
Yours sincerely,
Kristen Gower”3F2F 3
[13] The relevant sections of the Act relating to an unfair dismissal application are:
The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:
(a) whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;
(d) whether the dismissal was a case of genuine redundancy.
(1) The object of this Part is:
(a) to establish a framework for dealing with unfair dismissal that balances:
(i) the needs of business (including small business); and
(ii) the needs of employees; and
(b) to establish procedures for dealing with unfair dismissal that:
(i) are quick, flexible and informal; and
(ii) address the needs of employers and employees; and
(c) to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.
(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a “fair go all round” is accorded to both the employer and employee concerned.
Note: The expression “fair go all round” was used by Sheldon J in in re Loty and Holloway v Australian Workers’ Union [1971] AR (NSW) 95.
A person is protected from unfair dismissal at a time if, at that time:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the employment;
(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.
(1) An employee’s period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee.
(2) However:
(a) a period of service as a casual employee does not count towards the employee’s period of employment unless:
(i) the employment as a casual employee was on a regular and systematic basis; and
(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis; and
(b) if:
(i) the employee is a transferring employee in relation to a transfer of business from an old employer to a new employer; and
(ii) the old employer and the new employer are not associated entities when the employee becomes employed by the new employer; and
(iii) the new employer informed the employee in writing before the new employment started that a period of service with the old employer would not be recognised; the period of service with the old employer does not count towards the employee’s period of employment with the new employer.
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.
see section 388.
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.
[14] The Applicants submitted that Mr Whalan’s direction to attend a meeting was not reasonable in the circumstances and thus the Applicant was entitled to refuse that direction.
[15] In support of this contention the Applicant referred the Commission to a decision of Deputy President Sams in Emma Horan v Tren Trading Pty Ltd t/a Dubbo Early Learning Centre [2019] FWC 3249. The Applicant claimed that when comparing the decision of the Deputy President to various other Commission decisions0F the following principles can be established:
“a. A direction to attend a disciplinary or investigative meeting is generally reasonable;
b. A direction to attend a disciplinary meeting without affording some level of procedural fairness is not reasonable;
c. It is a question of degree as to whether a direction to attend a meeting is rendered unreasonable for want of procedural fairness.”4F3F 4
[16] The Applicant submitted that in answering the above question the Commission should take note of the decision of Lee J in Avenia v Railway & Transport Health Fund Ltd [2017] FCA 859 (Avenia).
[17] The Applicant contended that despite Lee J’s decision in Avenia arising in the context of a contractual dispute the following principles are relevant when determining whether an individual was reasonable in refusing a direction from their employer:
“a. A direction to attend a meeting will be unreasonable if:
i. The purpose of the meeting is to determine whether to make a decision which would affect the rights of the employee AND;
ii. Reasonable procedural fairness is not afforded.
b. A direction to attend a meeting will also be unreasonable if:
i. The direction to attend the meeting is given in such circumstances that would lead the employee to conclude that the purpose of the meeting was to determine whether to make a decision that would affect the rights of the employee;
ii. Sufficient procedural fairness is not afforded;
iii. The employer does not take reasonable steps to correct the employee’s misapprehension as to the subjective intention of the meeting.
c. The degree of procedural fairness is one of degree and to be determined by the context of the direction. Specifically with respect to a meeting to determine dismissal for misconduct, Avenia held that:
i. The employee must be given reasonable notice;
ii. The employee must be given particulars of the allegations to enable them to respond.”5F4F 5
[18] The Applicant further submitted that the level of procedural fairness that a decision maker (in this case the Respondent) owes to an individual is contingent on the nature of the decision to be made.
[19] Applying the above principles to the facts at hand, the Applicant submitted the following arguments. Firstly, that the meeting of 25 June 2020, was objectively disciplinary. Secondly, the circumstances in which the Applicant was invited to the meeting were such that the Applicant would have reasonably believed that the meeting was disciplinary and that the Respondent did not take necessary steps to correct the Applicant’s misapprehension.
[20] With respect to the first of these arguments the Applicant submitted that Mr Whalan’s subjective intention concerning the 25 June 2020 meeting was as follow:
“a. To put to the Applicant the allegation of regarding her conduct and her performance;
b. To hear the Applicant’s response to these allegations;
c. To determine within the meeting whether to take disciplinary action or some other form of adverse against the Applicant because of those allegations.”6F5F 6
As such, the Applicant submitted that the meeting should be classified as disciplinary.
[21] Regarding the second contention, the Applicant submitted that the Respondent’s custom and practice with respect to their disciplinary procedure was as follows:
“a. The employee in question would be verbally directed to attend the operations manager’s office via an intermediary;
b. The employee would not be told what the purpose of the meeting was even when asking;
d. The employee would then have allegations regarding past conduct put to them;
e. The employee would then be given a brief opportunity to respond to those allegations in the meeting;
f. The operations manager would then determine whether a warning should be issued;
g. The operations manner would then issue that warning.”7F6F 7
[22] The Applicant submitted that the above procedure was consistent with the Applicant’s previous experience with the Respondent’s disciplinary procedures. As such, the Applicant argued that the Commission should find that the Applicant reasonably believed that the meeting was disciplinary.
[23] The Applicant further submitted that the Respondent failed to correct the Applicant’s misapprehension that the meeting was disciplinary.
[24] To the extent that the Applicant’s was dismissed for using her mobile phone, the Applicant claimed that it did not give the Respondent a valid reason for dismissal nor was the Applicant notified of this reason or given an opportunity to respond to the allegation.
[25] The Applicant submitted that the Commission should have regard for the following considerations when determining whether the Applicant’s dismissal was harsh, unjust or unreasonable.
“If the Commission is satisfied that the refusal to attend the meeting was a valid reason for dismissal, the Applicant submits that dismissal was still harsh when having regard to the following:
a. The Respondent had engaged in past conduct which would strongly suggest to the Applicant that the meeting was disciplinary in nature;
b. The Applicant refused under the honest belief that the meeting was going to be disciplinary in nature;
c. The Applicant would have been entitled to refuse attendance in a disciplinary process without any particulars or information;
d. The Applicant had what appears to have had somewhat traumatic experiences when complying with such a direction in the past:
i. Being repeatedly told she was a liar without any reasonable basis;
ii. Being subject to unreasonable and inappropriate comments such as ‘we don’t like liars here’;
iii. Being detained in the room unless she admitted to facts about herself which she knew to be untrue;
iv. Being threatened with having her shifts cut.”8F7F 8
[26] The Respondent’s primary contention was that in the circumstances, Mr Whalan’s direction to attend a meeting was reasonable and thus the Applicant was not entitled to refuse his direction.
[27] The Respondent took the Commission to clause 9.1 of the Agreement which states:
“Employees must comply with the Club's Policies and Procedures as amended by the Club/s from time to time.”9F8F 9
[28] Further, the Respondent referred to page 9 of the Respondent’s employee handbook which states:
“The success of the Club is founded on ensuring all staff perform their roles professionally and to the required standard. If a staff member is found not to be performing to standard, a coaching or counselling session is the first step for the staff member with their supervisor or manager looking for the reasons for this gap and agreeing on the necessary steps to assist the staff to reach the standard.
A staff member who does not show a willingness to change or responsibility to take steps to change their behaviour may face disciplinary action.”10F9F 10
[29] Significantly, the Respondent submitted that on numerous occasions on 25 June 2020, Mr Whalan informed both the Applicant and Mr Manich that the meeting that Mr Whalan was requesting the Applicant to attend was not disciplinary in nature.
[30] The Respondent submitted that the Applicant’s refusal to attend the meeting was unreasonable and unlawful, therefore, the Respondent had a valid reason to terminate the Applicant.
[31] The Respondent submitted that the Applicant was notified of the reasons for her dismissal and was given an opportunity to respond. It is not in dispute that the Applicant was allowed to have a support person present with her at the meeting on 29 June 2020.
[32] The Respondent argued that during the Applicant’s employment she was regularly counselled and coached on her performance. The Respondent claimed that for the most part the counselling and coaching sessions took place on an informal basis. The Respondent denied that the Applicant has ever received a written warning.
[33] The Respondent submitted they have a dedicated human resources management team which resulted in them providing the Applicant with full procedural fairness and a thorough process in effecting the dismissal.
[34] The Applicant testified that during her tenure at the Respondent she was regularly counselled for performance and compliance issues. The Applicant gave a number of examples of counselling sessions between Mr Whalan and herself. For the most part, the examples related to her breaching the Respondent’s uniform policy by not covering up her nose ring, wearing too many earrings and using her mobile phone. The Applicant claimed that these counselling sessions took place ‘on the job’ and in front of other employees.
[35] It was the Applicant’s evidence that she had three meetings while working for the Respondent that had the potential to be classified as disciplinary meetings. Each of these meetings were held between the Applicant and Mr Whalan.
The first meeting
[36] The Applicant claimed that the first meeting took place in mid-2018 and that she did not believe the meeting to be disciplinary. The Applicant claimed that the meeting was to address a customer complaint. The Applicant stated that prior to the meeting commencing, Mr Whalan said words to the effect:
“I just want to have a talk, there was a customer complaint.”11F10F 11
[37] The Applicant stated that Mr Whalan gave constructive feedback during the meeting and that she did not believe the meeting to be disciplinary.
The second meeting
[38] The Applicant claimed that the second meeting took place in mid-2019. It was the Applicant’s evidence that she was told to go upstairs to talk to Mr Whalan but not told what the meeting was about. The Applicant stated that as a result of the meeting she received a verbal warning and that she believed that Mr Whalan recorded that warning on her file. Further, the Applicant stated that she believed that she was asked to sign something during the meeting.
The third meeting
[39] The Applicant claimed that the third meeting took place in late 2019. It was the Applicant’s evidence that she was told to go upstairs to talk to Mr Whalan. The Applicant claimed that Mr Whalan asked the duty manager to stay in the meeting as a witness. The Applicant stated that she was given a written warning as a result of the meeting.
The events of the 25 June 2020
[40] The Applicant’s account of the events of the 25 June 2020, can be summarised as follows:
• The Applicant was at her workstation and had her mobile telephone in her possession.
• At around 12 noon, Mr Whalan directed the Applicant to ask a colleague to watch the cash box while she put her phone away.
• At around 1:30 pm, the Applicant was asked by her duty manager to go up to see Mr Whalan. The Applicant asked her duty manager what the meeting was about. The Applicant’s duty manager claimed that she did not know. The Applicant refused to attend the meeting.
• A short time later, Mr Whalan came to see the Applicant at her workstation. Mr Whalan asked the Applicant to attend the meeting. The Applicant asked Mr Whalan numerous times what the meeting was about. It was the Applicant’s evidence that Mr Whalan: “kept saying it’s about work performance, but wouldn’t tell me anything further.”12F11F 12
• The Applicant understood that a UWU Organiser was in the lunchroom. With respect to this the Applicant stated the following:
“…It was at this point that I said I was going to talk to the Union organiser to see if I was doing the right thing. Up until this point I didn’t think it was right for me to come up to a disciplinary meeting without knowing what it was about first. But I wanted to talk to a union person to be sure and also get some support. Danny said he couldn’t attend a meeting like this with me because he was just an organiser.
Then I went downstairs. I explained to Danny that I was being called into a meeting about my work performance on the spot and wasn’t getting told what it was about. I said I’d said no to the meeting until they told me what it’s about. Danny checked with someone else on the phone and told me I’d done the right thing and that I should have notice for a meeting like this.”13F12F 13
• Mr Whalan joined the Applicant and Mr Manich in the lunchroom and again requested the Applicant attend the meeting, to which the Applicant refused. The Applicant asked why Mr Whalan couldn’t tell the Applicant what the meeting was about in the lunchroom. Mr Whalan responded that it was not appropriate to talk about it there.
• The Applicant was suspended.
The 29 June 2020 meeting
[41] The Applicant submitted that she was given a letter requiring her to attend a meeting on 29 June 2020, to discuss her refusal of a reasonable directive. The Applicant attended the meeting with a UWU representative. The Respondent was represented by Mr Whalan and Ms Gower.
[42] It was the Applicant’s evidence that during the meeting the Applicant explained that she refused Mr Whalan’s request to meet on 25 June 2020, because there was no email sent out and the meeting was due to her work performance.
[43] The Applicant stated that the following exchange occurred between her and Ms Gower:
“She (Ms Gower) also asked me this: ‘if you were to go back to work and asked to go to a meeting, would you still say no?’ I responded with something like:
yes, if there was no warning about the meeting, no notice and no information on what the meeting was about’.”14F13F 14
The Applicant stated that she still believed that if she was to participate in a disciplinary meeting, she should be told what the meeting is about and given time to prepare. The Applicant testified that she believed that the meeting on 25 June 2020, was disciplinary.
[44] Mr Whalan stated that the Respondent’s performance management process occurs in three stages. Firstly, if a manager or supervisor identifies a staff member not complying with the Respondent’s workplace standards then they engage the staff member in an informal discussion. The discussion is subsequently recorded in the staff member’s performance log. Secondly, if the employee does not rectify the behaviour that was the subject of the informal conversation the employee is invited to participate in a counselling and coaching meeting to address why this behaviour has not been rectified. Finally, if the staff member continues to fail to meet the workplace standards the Respondent would engage the staff member in a formal disciplinary meeting. At this stage, the allegation of poor performance would be put to the staff member in writing and the employee would be given time to prepare for the meeting.
[45] Mr Whalan submitted that he had participated in a number of informal counselling and coaching sessions with the Applicant. Further, Mr Whalan stated that the Applicant had not received a written warning as a result of any of these meetings.
[46] It was Mr Whalan’s evidence that the meeting that he invited the Applicant to participate in on 25 June 2020, was an informal counselling and coaching session. Mr Whalan’s account of the events of 25 June 2020, did not substantially differ from the Applicant’s except Mr Whalan claimed he repeatedly informed the Applicant that the meeting was not a disciplinary meeting and as such he did not have to give her written notice of the meeting.
[47] Mr Whalan claimed that he attended the 29 June 2020 meeting. It was Mr Whalan’s evidence that during this meeting the following exchange occurred between the Applicant, Ms Kristen Gower the Respondent’s Chief Operating Officer and Mr John McShane, an official of the UWU.
Ms Gower -“OK Stephanie so where are we at, do you still insist on having it in writing every time management wishes to speak with you?”
The Applicant - “Yes, I know my rights, that’s why there is email.”
Mr McShane - “You don’t really mean for every single thing though?”
The Applicant - “Yes I do.”15F14F 15
[48] Ms Gower is the Respondent’s Chief Operating Officer.
[49] Ms Gower’s evidence with respect to the Respondent’s performance management process is consistent with that of Mr Whalan.
[50] Further, Ms Gower’s evidence with respect to the events of 25 June 2020, is largely consistent with the evidence of Mr Whalan.
[51] Ms Gower submitted that she was present at the 29 June 2020, meeting. Ms Gower gave the following recount of an exchange between the Applicant, Mr McShane and herself.
Ms Gower – “If the situation occurred again and Luke wanted to speak to you about something Stephanie do you understand that the Club does have the right to speak to you without putting it in writing”
The Applicant - “I would not turn up to any meeting without being advised ahead of time and in writing.
Mr McShane - “But you’re not expecting all meetings to be in writing?”
The Applicant - “Yes it would have to be in writing, United Voice have posters and information saying this”16F15F 16
[52] Ms Kelly is employed as a Supervisor at the Respondent.
[53] Ms Kelly’s evidence with respect to the Respondent’s performance management process was consistent with that of Mr Whalan and Ms Gower. Ms Kelly gave the following account of the Respondent’s performance management process.
“What is the club’s process for disciplining staff, e.g. issuing formal or written warnings?
i. Speak with the staff about the problem
ii. performance log the issue
iii. Formal coaching and counselling sessions
iv. Formal warnings
v. Termination”17F16F 17
[54] Further, Ms Kelly’s evidence with respect to the events of 25 June 2020, is largely consistent with evidence given by Mr Whalan.
[55] It was Ms Kelly’s evidence that the meeting that Mr Whalan directed the Applicant to attend was to take place not in Mr Whalan’s office but in the ‘Topaz room’. Ms Kelly claimed that she advised the Applicant of the location of the meeting. Ms Kelly testified that on the first occasion that Mr Whalan directed the Applicant to attend a meeting with him he advised the Applicant that it was:
“an informal chat”18F17F 18
The Applicant’s Submissions in Reply
[56] The Applicant’s submissions in reply reinforced that the relevant principle to be extracted from Avenia is:
“A direction to attend a non-disciplinary meeting without procedural fairness is unreasonable if:
a. The direction is made in terms and under circumstances that would lead an employee to reasonably believe that it is a direction to attend a disciplinary meeting;
b. The employer does not take reasonable steps to correct the employee’s misapprehension.”19F18F 19
[57] The Applicant submitted that in the circumstances the Applicant reasonably believed that the meeting was disciplinary and that the Respondent failed to correct that misapprehension.
[58] In response to Mr Whalan’s recount of the exchange that took place between the Applicant, Ms Gower and Mr McShane during the meeting of 29 June 2020, the Applicant stated the following:
“8. I do recall saying something like this, but I also said later in the meeting that I just wanted to know what the meeting on the 25th was about. I said this after Kristen and Luke finally admitted after about two hours that the first meeting was about my phone. Towards the end of the meeting, I did not say I needed notice in writing every time. Instead I recall saying something like:
‘Notice in writing would have been nice, but I just wanted to know what the meeting was about’.
9. I do not at all believe that notice in writing is required for every meeting and I do not believe I was saying this on the meeting on the 29th. What I said early in the meeting has been taken out of context in Luke’s statement. We were talking about a situation where I was told to come meet in Luke’s office without being told anything about what it was about. From my past experience, when Luke does this the purpose of the meeting is to issue a warning or take some other disciplinary action, and I don’t believe it’s fair to go into a meeting like that without written notice.”20F””19F 20
[59] I have taken into account all of the submissions and evidence that have been provided by the parties.
[60] I have taken into account that the Applicant, unbelievably, was issued with a verbal warning for allegedly not following a corporate policy when undertaking a shift swap with a similarly trained and graded employee. I note that the Applicant was required to agree with Mr Whalan that she was an unreliable employee on the basis of this shift swap. Without going into the details of the situation this was one of the worst cases of management bullying that I have ever seen. In response to a question from me Mr Whalan stated:
“Any other employee ever breach policy and get a verbal warning at first instance?---I can't recall off the top of my head.
You just told Mr Aghazarian that you can recall - - -?---Sorry?
You just told Mr Aghazarian that you can recall these meetings, these process meetings that you have?---Yes, sorry, I'm just struggling to recall at the moment to find an example.
Is it possible that there is no other example of an employee making a breach of a policy which on the first occasion that didn't result in a verbal warning?---It's possible.
So why have you taken that approach with Ms Fisher?---As I say, it was more the meeting, getting Stephanie's responses, that she just didn't seem to understand that she had done anything wrong and I just wanted to stress that. But I understand that looked harsh.
I'm struggling to see how she has done anything wrong as well, Mr Whalan, and that's why I asked you the question, were there any other employees that received a verbal warning for the first breach of a policy and you're unable to provide me with an example?---No.
Once again, I go back to the question, why did you issue Ms Fisher with a verbal warning?---Apart from trying to stress the importance of following policies, I can't provide any other reason.
What do you say today in relation to that?---Yes, I can see that it may have been a harsh approach.21F20F 21
The Respondent should consider whether Mr Whalan should undertake some additional training in relation to his management practices because this verbal warning was clearly inappropriate.
[61] I have taken into account that the Applicant appears to have repeatedly and knowingly breached the Respondent’s policies in relation to her nose ring, the number of earrings in each ear and the use of her mobile phone at work.
[62] I have taken into account that the Applicant has changed her position as to what she allegedly said at the meeting on 29 June 2020 at the Hearing. The Applicant now claims that she was happy to attend meetings with management as long as she was verbally told the reason for the meeting prior to her attendance.
[63] I have taken into account that the UWU has not put forward either Mr McShane or Mr Manich to contradict the evidence of the Respondent’s witnesses.
[64] I have taken into account the evidence of the Applicant and Ms Gower, that the Applicant believed that she was working within her rights because she was following the information on the UWU’s posters.
[65] I have taken into account that the Applicant was advised by the Respondent of the serious repercussions of failing to follow a lawful direction, including the possibility of dismissal, prior to the Applicant being stood down.
[66] I have taken into account that the Applicant followed the advice of Mr Manich on 25 June 2020 in refusing to attend a meeting with Mr Whalan unless she was advised in writing of the reason for the meeting.
[67] Addressing section 387(h) of the Act, the Applicant contended that the Commission should consider the following factors when determining whether her termination was harsh, unjust or unreasonable.
• The Respondent’s past conduct suggested that the meeting was to be disciplinary.
• The Applicant honestly believed that the meeting was to be disciplinary.
• The Applicant would be entitled to refuse to attend a disciplinary meeting without sufficient notification of the reasons for the meeting.
• The Applicant was traumatised by her experience with the Respondent’s disciplinary process.
[68] I have commented above on the heavy-handed nature of one of the Respondent’s previous disciplinary meetings with the Applicant. However, I am not satisfied that in the current context her past experiences have a bearing on whether the dismissal was harsh, unjust or unreasonable. It is difficult to see what the Respondent could have possible done to ensure that the Applicant attended any meeting if the Applicant was simply going to suggest that all meetings would be disciplinary. I have taken this into account.
[69] The UWU has obviously embarked on a campaign to educate members on their rights in relation to attending meetings with management. Unfortunately for the Applicant, the UWU distributed information to its members and gave instructions to its officials which is just plainly wrong. To state that an employer does not have the right to discuss any issues with their staff without putting the reason for the meeting in writing cuts across the basic premise of managerial prerogative. The misinformation displayed by the UWU and expressed by Mr Manich, resulted in the Applicant losing her job.
[70] I suspect that a significant portion of the responsibility for the Applicant’s termination rests with the UWU. Representing members carries a significant responsibility for any union official. The advice that a union official gives will be relied upon by its members. I accept that no union is infallible but the leadership of the UWU had an obligation to ensure that the information contained in their campaign propaganda was legal and accurate.
[71] Although Mr McShane may have provided accurate alternate advice to the Applicant at the meeting on 29 June 2020, the Applicant insisted on following the advice on the UWU’s posters.
[72] As a result, the Applicant insisted that she would continue to defy any request to attend a meeting with the Respondent unless the reason for the meeting was provided in writing. Therefore, the illegal behaviour of the Applicant was going to continue.
[73] I am not convinced that the Respondent’s policy of holding information gathering meetings without an employee nominated support person present is appropriate. To do so allows for either party to be verballed. For the Respondent to be able to stop an information meeting at a critical point and claim that the meeting is now a disciplinary process is also inappropriate. Further, it is obvious that a verbal warning is part of any disciplinary process and should be treated as such by the parties.
[74] I am satisfied that Mr Whalan advised the Applicant that the meeting was not a disciplinary meeting. In relation to the principles in Avenia the Respondent’s assertion that the meeting was not disciplinary should have satisfied the Applicant’s misapprehension that the meeting was not a disciplinary meeting.
[75] I am satisfied and find that the Respondent had a valid reason to terminate the Applicant on the basis that the Applicant refused to comply with a reasonable direction. If the Applicant had refused to attend a meeting because her union delegate was unavailable, then that reason would have been acceptable.
[76] It is unfortunate in the extreme that such a minor issue such as a meeting invitation has led to the termination of the Applicant. However, the Applicant was not dismissed for breaching the uniform policy. The Applicant was dismissed for the serious reason of failing to follow a lawful direction, albeit on the advice of the UWU.
[77] Despite having found that the Respondent had a valid reason to terminate the Applicant, a dismissal can still be deemed unfair because it is harsh, unjust or unreasonable.
[78] I am not comfortable with the Applicant being required to carry the burden of her dismissal throughout the rest of her employment career based on the poor advice that was provided to the Applicant by the UWU.
[79] There is little doubt that the Applicant is a very strong-willed young woman. She was prepared to stand up for her rights at work based on the trust that she had in her union. The fact that the UWU gave her poor advice is not her fault. If representative error can be used by an applicant to overcome the statutory time limit of an unfair dismissal application then common sense would allow an applicant to use the same ground to mitigate their conduct which created the valid reason for their termination. I find that the termination of the Applicant by following the advice of the UWU was unreasonable the Respondent should have notified a dispute to the Commission in relation to the UWU’s campaign.
[80] Further, the termination of an employee residing in south west Sydney during COVID-19, emanating from a trivial issue such as non-compliance with a clothing policy, with the unlikelihood of gaining alternative employment renders the termination harsh. Whilst I understand the frustration of the Respondent, attempts should have been made by the Respondent to contact the leadership team of the UWU to highlight their concerns about the Unions ill-informed campaign material.
[81] As a result, I find the dismissal of the Applicant was harsh and unreasonable primarily due to the representative error of the UWU.
[82] The relevant provisions of the Act in relation to remedy are:
390 When the FWC may order remedy for unfair dismissal
(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:
(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) The FWC may make the order only if the person has made an application under section 394.
(3) The FWC must not order the payment of compensation to the person unless:
(a) the FWC is satisfied that reinstatement of the person is inappropriate; and
(b) the FWC considers an order for payment
391 Remedy—reinstatement etc.
Reinstatement
(1) An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:
(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or
(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.
(1A) If:
(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and
(b) that position, or an equivalent position, is a position with an associated entity of the employer; the order under subsection (1) may be an order to the associated entity to:
(c) appoint the person to the position in which the person was employed immediately before the dismissal; or
(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before
the dismissal.
Order to maintain continuity
(2) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to maintainthe following:
(a) the continuity of the person’s employment;
(b) the period of the person’s continuous service with the employer, or (if subsection (1A) applies) the associated entity.
Order to restore lost pay
(3) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.
(4) In determining an amount for the purposes of an order under subsection (3), the FWC must take into account:
(a) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for reinstatement; and
(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.
392 Remedy—compensation
Compensation
(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.
Criteria for deciding amounts
(a) the total amount of remuneration:
(i) received by the person; or
(ii) to which the person was entitled; (whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and
(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.
[83] The Applicant does not seek reinstatement.
[84] It would be contrary to section 381 of the Act and the principle of a ‘fair go all-round’ for the Respondent to be required to pay compensation due to the representative error of the UWU.
[85] I Order no compensation be paid to the Applicant.
[86] I so Order.
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
<PR723916>
1 Witness Statement of Kristen Gower Statement, dated 19 October 2020, Annexure I.
2 Witness Statement of Luke Whalan Statement, dated 19 October 2020, Annexure E.
3 Witness Statement of Kristen Gower Statement, dated 19 October 2020 Annexure J.
4 Applicant’s Outline of Submissions filed 23 September 2020 [13].
5 Applicant’s Outline of Submissions filed 23 September 2020 [22].
6 Applicant’s Outline of Submissions filed 23 September 2020 [25].
7 Applicant’s Outline of Submissions filed 23 September 2020 [37].
8 Applicant’s Outline of Submissions filed 23 September 2020 [54].
9 Cabra-Vale Ex-Active Servicemen’s Club/s Limited and Cabra-Vale Diggers at Campbelltown RSL Employee Enterprise Agreement 2015-2018 clause 9.1.
10 Witness Statement of Luke Whalan Statement, dated 19 October 2020, Annexure A.
11 Witness Statement of Stephanie Fisher filed 23 September 2020, [6].
12 Witness Statement of Stephanie Fisher filed 23 September 2020, [44].
13 Witness Statement of Stephanie Fisher filed 23 September 2020, [46]-[47].
14 Witness Statement of Stephanie Fisher filed 23 September 2020, [61].
15 Witness Statement of Luke Whalan, dated 19 October 2020, [23].
16 Witness Statement of Kristen Gower, dated 19 October 2020, [17]
17 Witness Statement of Jodie Kelly, dated 19 October 2020, [6].
18 Witness Statement of Jodie Kelly, dated 19 October 2020,[12].
19 Applicant’s Outline of Submissions in Reply filed 26 October 2020, [5]
20 Applicant’s Outline of Submissions in Reply filed 26 October 2020, [8]-[9].
21 Transcript of 27 October 2020 Hearing, [619] –[626].