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Introduction

This matter (which has been successfully appealed), relates to an unfair dismissal application involving a casual employee who the company argues did not work on a “regular and systematic” basis.

In this application for an unfair dismissal remedy, the respondent lodged a jurisdictional objection that the applicant was a casual employee and was not regularly and systematically employed, had no reasonable expectation of continuing employment and therefore was not a person protected from unfair dismissal. The jurisdictional objection upheld in the 20 September 2019 decision [[2019] FWC 6448]. The September decision was appealed and a Full Bench of the Commission quashed the September decision and remitted to a Commission Member for final determination [[2020] FWCFB 306].

Background

The applicant was employed as a casual sales assistant. The respondent argued that applicant failed to properly notify of her absences, sent intimidatory and disrespectful emails and created a threat to the health and safety in the workplace. The applicant had also covertly recorded conversations between herself and the respondent.

FWC consideration

Commission considered that the recordings were not consistent with the respondent’s version that the applicant had behaved aggressively although the covert recordings would constitute a valid reason for dismissal. The Commission however noted the recordings were not the reason relied on for the dismissal and could not have been as the employer was unaware of the recording until the filing of materials in this matter. The Commission noted that the applicant did not intend to harm the employer by making the recordings and could have achieved the same objective if she had of advised the respondent that she was making the recordings.

Finding

The Commission was satisfied that the dismissal of the applicant was unreasonable because she was not notified of the reasons for her dismissal and did not have an opportunity to respond. The applicant was also effectively denied the opportunity for a support person. The Commission found that the applicant was unfairly dismissed.

Outcome

The applicant wanted to be reinstated. The Commission noted that given the conduct of the applicant having recorded conversations, there was a likelihood that on return to work there would be disciplinary action which would likely result in the applicant’s termination. The Commission further noted that trust and confidence was lost as a result of the recordings and reinstatement would be inappropriate in the circumstances. The Commission held that Directions were to be issued to elicit necessary information to consider and finalise the matter of compensation.

This article is part of a regular newsletter. If you wish to receive the newsletter providing information on the latest employee relations news and trends click here and use the “contact us” tab.

My business grows by referrals. I would appreciate it if you would pass my details on to your colleagues, clients or associates who could benefit from my skill set. Defending/Preventing unfair dismissals, policies and procedures, contracts of employment, codes of conduct and more…

Introduction

Full decision here:

This is a VERY instructive and interesting decision that keeps you guessing until its (anti-climactic) ending. It includes an employee who (did or did not) get on with her boss, an incompetent National HR Manager who provided the applicant with wrong advice and failed to follow due process, and the applicant shooting herself in the foot (figuratively speaking) by bringing a covert recording to the table.

Background

  • The Applicant in this matter seeks reinstatement, an order for compensation and an apology.
  • The Respondent lodged a jurisdictional objection that the Applicant was a casual employee and was not regularly and systematically employed and had no reasonable expectation of continuing employment and therefore was not a person protected from unfair dismissal.
  • On 20 September 2019 the jurisdictional objection was upheld in a decision by Deputy President Mansini.
  • The Applicant lodged an appeal to the decision and was quashed by the Full Bench of the Fair Work Commission who ordered the matter be referred back to a final determination by a Commission Member.

The uncontested factual background to the matter is as follows, the Applicant:

  • Accepted an offer of employment with the Respondent on 15 June 2018,
  • Was hired as a Casual Sales Assistant;
  • Worked her first shift on 25 June 2018 and her last shift on 28 February 2019;
  • Was dismissed on 1 March 2019.

The Applicant was employed as a casual sales assistant and her duties included sales, customer service, stock replenishment, as well as various other duties. It is apparent she worked without any issues of concern with her performance from the start of her employment until at least the end of January 2019.

The Respondent concedes that the Applicant had never been disciplined, or spoken to regarding any issues with her performance or conduct during her employment and had never received any warnings (written or verbal) regarding customer complaints, employee complaints, conduct complaints, or performance complaints or issues.

According to the letter of termination, the Applicant was dismissed for a variety of reasons. These are set out in the letter of termination signed 1 March 2019.

In the Respondent’s submissions filed prior to the determinative conference, it was said that the Applicant engaged in three instances of misconduct as follows:

  • “The first related to her failure to comply with the Respondent’s policy with respect to notification of absences. That misconduct is elevated because not only did the Applicant fail to comply with the policy which applied generally (albeit she asserts it was not enforced at her store), she failed to comply with a specific direction in relation to this from her Regional Manager, Ms Faill. Ms Faill specifically directed the Applicant to contact her by telephone to confirm whether she would be able to attend her shift on 14 February 2019. The Applicant failed to do so and instead elected to send a text message to the Store Manager communicating her inability to attend work.
  • The second instance of misconduct related to the Applicant’s conduct during the meeting of 26 February 2019. The Applicant’s conduct was disrespectful, insubordinate and intimidating. The Applicant refused to accept her superior, Ms Faill’s, explanation and position, and continually reiterated complaints that were demonstrated to have no substance. Ms Faill reported feeling threatened by the Applicant’s conduct. The Applicant’s conduct created a threat to the health and safety of Ms Faill.
  • The third instance of the Applicant’s misconduct is evidenced through the email sent by her to Ms Faill on 27 February 2019. The tone of that email is appalling in its lack of respect for Ms Faill and her position. It is a continuation of the disrespectful, insubordinate and intimidating conduct she had engaged in during the meeting of the previous day.”

The reduction in the Applicant’s hours of work

The Applicant, up until January 2019, regularly worked around 20 to 25 hours per week. The Respondent conceded that the Applicant’s hours of work were reduced in January 2019 and February 2019, as asserted in paragraphs 22 and 23 of the Applicant’s witness statement:

“22. For the month of January 2019, I noticed that my allocations of hours were slightly reduced. I did not communicate any concerns to Ms Lazarevska because I had worked quite a bit over the Christmas period and accepted a little reprieve.

  1. For the month of February 2019 after the rosters were released, I notice again a reduction in my hours, and not for other employees, even though I gave majority of the month availability with the exception of 3 days…”

The Respondent submits that the Applicant protested “vehemently” the reduction in hours at the end of January 2019 and through February 2019.

The Respondent accepted that:

“… it took the decision in the middle of February 2019 to provide the Applicant with one shift per week while it considered her availability and reliability.”

The Respondent submitted that:

“8. The difficulty with the Applicant’s vehement protests regarding her hours of work are that the reduction of actual hours worked in February in particular were due to a significant extent to:

a) the Applicant’s limited availability during that month; and

b) the Applicant’s refusal to accept shift at the Moonee Ponds store; and

c) the Applicant being absent due to illness for two days.

In the four-week period immediately before the peak Christmas trade period commenced at the start of December 2018, the Applicant worked a total of 60.25 hours. In the four-week period commencing on 28 January 2019 and continuing to the cessation of her employment the Applicant worked 50 hours. She was also absent from work for two shifts and rejected another 5-hour shift. The Applicant’s discontent was founded on a false understanding of how her hours of work had changed…”

The controversy over the hours is important as it is clearly a key issue with respect to two of the three reasons relied on by the Respondent for dismissing the Applicant.

The first reason for the dismissal

The Respondent’s policy provides as follows:

Attendance and Punctuality

Regularity of attendance and punctuality is expected of each employee.

However, there are times when absence or lateness is unavoidable. In these instances, you must make every effort to contact your Manager at least 2 hours before your scheduled work time. If you are scheduled to work the first shift of the day, then you must notify your Manager by 7:30 am on that day. If you are going to be late for a shift, you must make every effort to contact your Manager as soon as possible, to inform them of your expected time of commencing your shift.

Excessive absenteeism or tardiness can result in disciplinary action being taken, up to and including termination of employment.

Reporting Absences

If it is necessary for you to be unexpectedly absent for any reason, you must notify your Manager by telephone (a text message does not satisfy this requirement and is unacceptable) at least two (2) hours before you are due to report for work. This is mandatory so plans can be made for your duties to be assumed by someone else or divided among your co-workers. Reporting your absence to one of your co-workers does not satisfy this requirement.

You should report daily if your absence extends beyond one (1) day. If you do not report as required for three (3) consecutive days/shifts, it will be deemed that you have abandoned your position, and after due process has been followed and no response has been received from you, your employment will be terminated.”

The Applicant’s evidence was that she was sick due to influenza on 13 February 2019, that she did not have her phone with her when Ms Faill attempted to call the Applicant to ask whether the Applicant would be available to work on 14 February 2019, and that she would have contacted Ms Faill out of courtesy had she known of Ms Faill’s attempt to contact her. On the Applicant’s evidence, she appears to have been unaware that Ms Faill had asked to be contacted directly.

Evidence was also given that the Applicant frequently texted the Store Manager regarding absences. There had been no apparent rebuke from the Store Manager for doing so, The text message exchange on 13 February 2019 between the Applicant and the Store Manager reflects that.

In any case, the Applicant did text the Store Manager, and on her evidence, which I accept, was unaware that Ms Faill wanted her to contact her directly.

It is clear that the Respondent’s policy provided that absences were to be notified by phone call and that sending texts was not acceptable. Therefore, the Applicant in texting her impending absence was not conforming with the policy of the store. Notwithstanding that, the Applicant communicated her absence in a manner she traditionally used and had not been admonished for in the past. The evidence of Ms Faill was that she left a voicemail that asked for a call back from the Applicant to confirm her unavailability. However, the evidence adduced at the determinative conference suggested that the Applicant was unaware of the voicemail at the time it was left. Moreover, it appears uncertain at what later time, or even if, the Applicant became aware that a voicemail was left by Ms Faill.

On this point the Commissioner found:

“I accept the Applicant’s evidence that at the relevant time she was unaware of the specific directions of Ms Faill to contact her. In considering all of the circumstances, I am not satisfied that the first reason for the dismissal is a sound and defensible, and therefore valid, reason for the dismissal”.

The second reason for the dismissal

The second reason relates to the meeting on 26 February 2019. The Applicant’s evidence is that on that day she was rostered to work, and she arrived to work at approximately 8.50 am. She went to the storeroom and viewed the newly released rosters. The Applicant was shocked and distressed to discover that she had received just one 5-hour shift each week in March 2019. The Applicant says that she was concerned and feeling ill. She told Ms Lazarevska, the Store Manager, that she was unwell and wanted to go home. Ms Lazarevska told the Applicant that Ms Faill was coming to the store that day and wanted to meet with the Applicant. Ms Lazarevska told her not to sign on for the day. The Applicant then went back to her car in the car park to wait for Ms Faill to arrive. At that point the Applicant decided that she will record the impending meeting with Ms Faill as she claimed to be fearful as to what the meeting was about.

However, the evidence of Ms Faill is that Ms Lazarevska told her the Applicant wanted to see her. The email exchange on 26 and 27 February 2019 is consistent with the views of both witnesses. That is, both of them say that Ms Lazarevska told them separately that each wanted to speak to the other. Ms Lazarevska did not provide evidence at the determinative conference.

The evidence of Ms Faill as to what happened at that meeting was:

“At approximately 8.50 am I was in the back area at the stock reserve having a discussion with the HR Manager. I introduced Ms Chandler to the HR Manager, who then left the area. I then had a discussion with Ms Chandler about her hours and her failure to comply with the obligation to notify directly her absences.

“Ms Chandler was complaining strongly about what she perceived as a reduction in her hours of work. I attempted to explain to her that she had made herself unavailable for the majority of days during February, and as such there was no ability for the business to offer her additional hours. In this regard there were weeks where she was listed as not available for up to four and five days. At multiple points during the discussion Ms Chandler sought to say that she didn’t make herself unavailable on those days, however then accepted that she did, albeit that it was the Store Manager who recorded this unavailability.

“During the discussion I found Ms Chandler to be unreasonable and unprepared to accept my answers. She became quite angry as the discussion progressed, turning red in the face and stepping towards me in what I felt was an aggressive manner. I felt very uncomfortable with her conduct and became fearful of her. Despite her agreeing that she had made herself unavailable for the majority of days each week in the month of February, she continued to demand to know why her hours had been reduced. I became fearful of her conduct and did not want to be in her presence. I advised her that I had another meeting and needed to end the discussion. I did this twice before I was able to bring the discussion to an end.”

However, the applicant’s evidence was mostly contrary to that of Ms Faill.

During the hearing the Applicant provided evidence that she was fearful of the discussions with Ms Faill due to her position as Regional Manager and that during the meeting they had discussed Ms Faill’s direction to reduce the Applicant’s hours.

The Applicant did not inform Ms Faill at that time nor at any time up until the filing of the material for this determinative conference that she recorded their conversation.

The Commissioner:

“I deal with that matter subsequently. Nevertheless, there is audio recording of the discussions. On listening to that, it is sometimes hard to hear the Respondent, but the Applicant can be clearly heard. In my view, the recording does not support the claims of Ms Faill as to the nature of the discussions. The Applicant is certainly forthright. She clearly feels that Ms Faill does not understand the manner in which the Applicant communicates her unavailability. The latter part of the conversation is a confused and rather circular conversation that I have no doubt Ms Faill found frustrating.

“The evidence, including the audio recording, supports the Applicant’s characterisation of her conversation with Ms Faill. The applicant explained and re-explained the way in which she made herself unavailable for her shifts and repeated this a number of times, clearly believing that Ms Faill did not understand. While Ms Faill I think does understand the rostering, the Applicant was making her case against the background of having her shifts decreased to only one shift and not understanding why this occurred. As the Applicant was being told it was because of her lack of availability, she repeatedly disputed that she was unavailable.

“In any event, while the conversation was robust, the audio recording is not consistent with Ms Faill’s version that the Applicant was aggressive and that Ms Faill felt intimidated and uncomfortable. Subsequent to the meeting, the Applicant sent some emails to Ms Faill, who responded on 27 February 2019 with the following:

“Hi Angela,

Please know you can contact our HR department at our head office on 03 8888 8100 any point to discuss any issues you may feel need to be raised.

Yesterday was not a disciplinary meeting for a formal meeting. Hence no notes taken not meeting lodged, Yvette & myself where at the Essendon store on a different matter totally.

Mirjana the manager had told me you wanted to speak with me & had roughly broached the subject around rostering.

I have CC’ed the HR manager into this email to make all aware & to be open & transparent to the matter.

Thank you.

Katirena”

There is nothing in that email that suggests that Ms Faill had any concern at all about the conduct of the Applicant at the meeting. Nor did Ms Faill at any time during the meeting counsel the Applicant about her behaviour. As the Commissioner put it:

“The email from Ms Faill to the Applicant on 27 February 2019 as well as the audio recording of the conversation by the Applicant do not support Ms Faill’s evidence as to the conduct of the Applicant in the conversation. To the extent there is a conflict on the evidence between the Applicant and Ms Faill as to what occurred in the conversation of 26 February 2019, I prefer the evidence of the Applicant.

“I am not satisfied that the conversation of 26 February 2019 can be characterised as disrespectful. There is nothing disrespectful about the Applicant’s language. As to being insubordinate, this is “refusing to obey orders from someone in authority, and not showing respect for them”, while the Applicant questioned the decision maker’s authority, there is no indication that the Applicant refused to obey orders or was disrespectful.

“The claim that the Applicant’s conduct created a threat to the health and safety of Ms Faill is simply not made out on the evidence. Having regard to the evidence, I am not satisfied that the Applicant is guilty of the alleged misconduct set out in the second reason. I am not satisfied that this is a valid reason for dismissal”.

The third reason for the dismissal

The third reason relates to the emails of 26 and 27 February 2019. The email trail commences with the Applicant sending an email on 26 February 2019, the day of the meeting with Ms Faill, stating that she was concerned about the conversation and raising concerns. The email was responsive to the request of Ms Faill who asked the Applicant to send concerns in writing.

The Commissioner:

“In any case, I agree the first sentence of the email from the Applicant to Ms Faill on 27 February 2019 at 10.16 am is rather sarcastic and to that extent disrespectful. Beyond that, it is not apparent that the email has a “tone” that is “appalling”, as was submitted by the Respondent’s representative. In any case, Ms Faill herself did not describe the email as “appalling”. She described the email as having a “disrespectful” tone. She described the 26 February 2019 email from the Applicant as having a tone that was “intimidatory”.

“In my view, the emails are a forthright expression of the concerns of the Applicant, about her allocation of hours. Other than the sarcasm of the first sentence of the email of 27 February 2019, they are, objectively viewed, neither intimidatory nor disrespectful. At the time of responding to the email of 27 February 2019, Ms Faill did not indicate any concern whatsoever with the email that was sent to her. Having considered the evidence, I am not satisfied that the emails of 26 and 27 February 2019 that the Applicant sent to Ms Faill constituted misconduct. They do not constitute a sound and defensible reason for the dismissal and their sending is not a valid reason for the dismissal”.

Covert recording is a valid reason for dismissal

While it was not the reason given for the dismissal, the covert recording of the conversation with Ms Faill may be, depending on the circumstances, a valid reason for the dismissal. The Applicant recorded the conversation with Ms. Fail. She also recorded the conversation she had on the phone with National HR Manager on 28 February 2019.

The Applicant’s evidence is that she recorded the conversation with Ms Faill because she was fearful. The Commissioner finding:

“Overall, the responses from the Applicant demonstrate a level of vagueness to her claim that she was fearful of Ms Faill prior to the meeting taking place. It is not a credible claim. She claims she felt intimidated by Ms Faill during the meeting and perhaps to a certain extent she was. However, that does not explain on what basis the Applicant felt such a level of fear before the meeting even began that would allow one to understand why her thoughts turned to recording the meeting.

“The claims of the Applicant that she was fearful of Ms Faill before the meeting are not credible and I do not accept that she was fearful.

“The Applicant was not sure what the meeting would be about and elected to covertly record it. She could have, and should have, asked Ms Faill if she agreed to the recording but she did not. However, I am also of the view that on all of the evidence this conduct was out of character for the Applicant and it was not her intent to damage the relationship with the employer. Ultimately the only use that the recording has been put to is to defend the Applicant from the accusations as to her conduct at the meeting. Nevertheless, while it was not the intent of the Applicant to damage the relationship with the employer, it is apparent that the covert recording has damaged the relationship.

“In a previous decision where it was found that the applicant was not justified in secretly recording discussions with co-workers Deputy President Colman observed that:

“… it would have been open for me to find this conduct to constitute a separate valid reason for dismissal (the Commission is not confined in its consideration of s 387(a) to valid reasons relied on by the employer).”

“The Deputy President’s decision was appealed unsuccessfully but this point was not challenged on appeal.

“The Commission’s Full Bench has also found on appeal in another matter that the Member at first instance:

“… was entitled to conclude that the Appellant had made the recording in secret and that this action was contrary to his duty of good faith and fidelity to the employer and undermined the trust and confidence required in the employment relationship. This action, in itself, was grounds for summary dismissal.”

“As to the recording of the conversation with National HR Manager, this was also inappropriate. However, I have taken into account that this was a conversation where [National HR Manager] was making incorrect claims to the Applicant as to her rights under the Act. Given the numerous flaws in the process of effecting the dismissal presided over by [National HR Manager], there may have been some justification in the applicant recording the conversation. However, as was the case with Ms. Faill, the Applicant should have advised [National HR Manager] that she was recording the conversation. It is apparent that she did not”. [GR: HR cops it again from FWC].

The Commissioner concluding:

“Taking into account all of the circumstances, I am satisfied that the covert recording of the conversations with Ms. Faill and [National HR Manager] is a valid reason for dismissal. It was not the reason relied on for the dismissal and could not have been as the employer was unaware at the time the recording had taken place until the filing of materials in this matter. Whilst the Applicant did not intend to harm the employer by making the recording, she could have achieved the same objective by advising that she was making the recording. I am not satisfied that the Applicant was genuinely fearful of Ms Faill. Covert recording of the conversations was inappropriate and damaging of a relationship of trust and confidence with the employer. This is a factor weighing against a finding that the dismissal was unfair”.

Process of dismissal (HR in the spotlight)

With a further appraisal of the National HR Manager, the Commissioner found:

“The process followed by the Respondent to effect the dismissal was riddled with flaws. While the Respondent had a right to reject the Applicant’s preferred support person, their determination to press ahead with the meeting at the time scheduled without taking into account the Applicant’s request for more time was unreasonable. [National HR Manager] misled the Applicant with her claim that 24 hours’ notice of the meeting is all that is required under the FW Act. When asked to provide that information to the Applicant, [National HR Manager] doubled down and made the ridiculous claim that the FW Act does not require her to give that information. [National HR Manager]contemplated rescheduling the meeting in a phone call, and then demanded that the meeting take place”.

“While the Applicant was on notice that she was to attend the meeting, she was also told that the repercussion of not doing so was suspension until the meeting could take place. However, [National HR Manager] apparently did not feel restrained by making that commitment as she moved to terminate the Applicant within hours of her non-attendance at that meeting. At best, the process followed by [National HR Manager] in effecting the dismissal was bungled and incompetent. I have taken into account that [National HR Manager] claims in the letter of dismissal that in deciding to dismiss the employee she had taken into account “…your appointment as a casual sales assistant, with no systematic hours…as clearly defined under the Fair Work Act and confirmed through the Fair Work Ombudsman today…”. It is not apparent how the Fair Work Ombudsman could have given such a confirmation as it would turn on the facts as to the nature of the engagement of the Applicant. In any case, the claim was in error. That error was confirmed by the Full Bench of the Fair Work Commission [Chandler v Bed Bath N’ Table [2020] FWCFB 306, [20]-[21]] and does not excuse the numerous failings in the process of effecting the dismissal”.

Was the dismissal harsh, unjust or unreasonable?

[113] Section 387 of the FW 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.

Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct?

In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded” and should not be “capricious, fanciful, spiteful or prejudiced.” 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.

Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination”

“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. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.”

The Commissioner’s conclusion:

“…I am not satisfied that the…reasons given for the dismissal are valid reasons for dismissal for the reasons set out. However, I have found that the further reason, that of the covert recordings undertaken by the Applicant is a valid reason for dismissal. That valid reason weighs against a finding that the dismissal is unfair.

Was the Applicant notified of the valid reason?

In considering this component of the law, the Commissioner found:

“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, and in explicit and plain and clear terms. Notification of “the reason” relates to the “valid reason” for the dismissal. In this case, the only valid reason is the covert recording of the conversation.

“It is apparent that the Respondent was unaware of the recordings having been undertaken until the commencement of these proceedings. In the circumstances there was not an opportunity to notify the Applicant. However, that does not change the fact that the Applicant was not notified of the reason.

“In all the circumstances, I find that the Applicant was not notified of the reason for her dismissal. This weighs in favour of a finding of unfairness”.

Was the Applicant given an opportunity to respond to any valid reason related to their capacity or conduct?

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.

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. 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.

For the Commission to have regard to whether an employee has been given an opportunity to respond to the reason for dismissal, there needs to be a finding that there is a valid reason for dismissal.

As the recording of the conversations was not known until after the dismissal, it is apparent that the Applicant was not given an opportunity to respond to the valid reason.

The Commissioner finding:

“The reason for the termination need not be that which was given by the employer. It can be any reason underpinned by the evidence provided to the Commission. If the employer seeks to rely on a reason for dismissal other than the reason given or relied upon at the time of the dismissal “they will have to contend with the consequences of not giving the employee an opportunity to respond to such reason”.

“This is such a case and the employer has to deal with the consequences that there was not an opportunity given to respond. The failure to give an opportunity to respond weighs in favour of a finding the dismissal is unfair”.

Did the Respondent unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal?

Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present.

There is no positive obligation on an employer to offer an employee the opportunity to have a support person:

“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.”

The Commissioner finding:

“I find that the Respondent, in insisting that the Applicant find another support person within such a short period of time and not delaying the time of the meeting to allow that to occur, had the effect of depriving the Applicant of the ability to have a support person.

“Having regard to the matters referred to above, I find that the Respondent unreasonably refused to allow the Applicant to have a support person present at discussions relating to the dismissal”.

To what degree would the absence of dedicated human resource management specialists or expertise in the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal?

The Applicant submitted that the Respondent’s enterprise did not lack dedicated human resource management specialists or expertise.

The Respondent submitted that the lack of dedicated human resource management expertise in the Respondent’s enterprise would be likely to impact on the procedures followed in effecting the dismissal because:

“[i]t is clear from the process undertaken in relation to the dismissal that while the Respondent at the time employed a human resources manager, that human resources manager did not have expertise in relation to the procedural requirements for effecting a dismissal.”

The Commissioner:

“This is a concession rightly made that the former human resources manager did not manage the process of the termination at all well and did not fulfil the relevant procedural requirements.”

At this stage we find out that the HR manager has moved on, not being up to the challenge, but nonetheless the company did have HR expertise:

“Having regard to the foregoing, I find that the Respondent’s enterprise did not lack dedicated human resource management specialists and expertise. However, that particular human resources manager was incompetent in respect to her ability to deal with the termination of an employee. Ultimately this is a neutral consideration”.

Other considerations

The Commissioner noting:

“I am not satisfied, consistent with my findings above, that the Applicant demonstrated a high level of antipathy to the Respondent, it follows that I do not think that any antipathy would have continued. I accept that the matters set out by the Applicant going to her financial difficulties and her difficulty in obtaining employment are factors that are relevant to the consideration as to whether the dismissal is unfair and weigh towards a finding of unfairness”.

The exciting ending…

Was it an unfair dismissal [drum roll]? The Commissioner finding:

“I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable.

“In this matter, I am satisfied that there was a valid reason for the termination of the Applicant’s employment, that being the recording of the conversation with Ms Faill and [National HR Manager]. This weighs against a finding of unfairness. However, the Applicant was not notified of the valid reason nor given an opportunity to respond and was effectively denied an opportunity to have a support person as a result of the botched process of effecting the dismissal. The effect of the dismissal on the Applicant has been significant. All of these factors weigh towards a finding of unfairness.

“Having considered each of the matters…I am satisfied that the dismissal of the Applicant was unreasonable because she was not notified of the reason and did not have an opportunity to respond to the reason for dismissal and was effectively denied the opportunity for a support person. It was harsh because of the significant impact the dismissal has had on her in circumstances where she had entered into a significant financial commitment to buy property and has had considerable difficulty finding alternative employment.

“I am therefore satisfied that the Applicant was unfairly dismissed within the meaning of s.385 of the FW Act”.

Remedy

Under s.390(3) of the FW Act, the FWC must not order the payment of compensation to the Applicant unless:

(a) It is satisfied that reinstatement of the Applicant is inappropriate; and

(b) It considers an order for payment of compensation is appropriate in all the circumstances of the case.

Is reinstatement inappropriate?

The Applicant submitted that reinstatement is appropriate because:

  • the Applicant loved her job, colleagues and customers, and would like to continue working in that role;
  • termination of employment was not warranted for the reasons given by the Respondent
  • the Applicant may not find another job suitable to her skillset given her age and the COVID-19 pandemic;
  • it took the Applicant 18 months to find this job; and
  • the Applicant is currently in significant financial distress and finding another job might take a very long time, if she does find one.

With reference to a Full Bench decision of the Fair Work Commission,[Thinh Nguyen & Thanh Le v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter [2014] FWCFB 7198, [14]-[28]. The Respondent submitted that reinstatement is inappropriate because:

“(a) reinstatement would be futile given the Respondent has very limited work being performed at the Essendon store such that the Applicant would not be able to be offered any work and the Applicant considers herself to only be employed at the Essendon store;

(b) reinstatement would be futile given the Respondent, subsequent to the termination, has discovered the conduct of the Applicant in secretly recording her discussions with Ms Faill and Ms Dowlan, and there is a likelihood that this conduct will result in disciplinary action and result in termination of her employment (see ; and

I the relationship between the Applicant and the Respondent has irretrievably broken down […] and as such there has been a fundamental loss of trust and confidence in the employment relationship.” 97 (footnotes omitted)

[156] In Anderson v Thiess Pty Ltd, 98 the Full Bench set out the following regarding remedies for reinstatement:

“We accept the respondent’s submission that a decision as to whether it is appropriate to order the remedy of reinstatement is discretionary in nature. As was explained in the Full Bench decision in Nguyen v Vietnamese Community in Australia, a broad range of factors may be relevant in a consideration of the appropriateness of reinstatement:

“[9] The question whether to order a remedy in a case where a dismissal has been found to be unfair remains a discretionary one. …

[10] Subsection 390(3) underscores the primacy of reinstatement as a remedy for an unfair dismissal as the discretion to order a remedy of compensation may only be exercised if the Commission is satisfied that reinstatement is ‘inappropriate’. Further, one of the objects of Part 3-2 of Chapter 3, in which the unfair dismissal provisions appear, is “to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement”. We would observe that to describe reinstatement as the ‘primary remedy’, is to simply recognise that reinstatement is the first, perhaps even the foremost, remedy under the Act. The relevant question in determining whether to grant the remedy of reinstatement of an employee in relation to a dismissal that is found to have been ‘unfair’ is whether reinstatement is appropriate in the particular case.

[15] In Australia Meat Holdings Pty Ltd v McLauchlan a Full Bench of the AIRC gave consideration to the differences in the provisions of the IR Act and the WR Act and concluded that “a consideration of appropriateness of reinstatement involves the assessment of a broader range of factors than practicability … [I]n considering whether to order the reinstatement the Commission is not confined to an assessment of the practicability of such an order are that must decide whether such an order is appropriate”. We agree with this observation.

[16] We now turn to the relevant question concerning the appropriateness of reinstatement.

[17] Reinstatement might be inappropriate in a whole range of circumstances, for example if such an order would be futile such as where reinstatement of an employee would almost certainly lead to a further termination of the employee’s employment because the employer has since discovered that the employee engaged in an act of serious misconduct which was only discovered after the employee’s termination or if the employer no longer conducts a business into which the employee may be reappointed.”

The discretionary nature of the decision-making exercise in relation to reinstatement, which apart from the criterion of appropriateness is not guided by any requirement to take any particular matter into account, necessarily means that no one consideration and no combination of considerations is necessarily determinative of the result and that the decision-maker is allowed some latitude as to the choice of the decision to be made. It also means that in any appeal from a decision concerning the grant or refusal of the remedy of reinstatement, it is necessary for the appellant to demonstrate error in the decision-making process. Any such error will usually have to be of the type identified in House v The King.” (footnotes omitted)

“I agree that these are the appropriate principles and apply them to the consideration in this case. I accept the evidence of the Respondent that there is very limited work at the Essendon store such that the Applicant would be able to be offered little or perhaps no work at all. Moreover, I accept that given the discovered conduct of the Applicant recording the conversations, there is likelihood that on return to work there would be disciplinary action which would likely result in her termination.

“I also accept that in the circumstances, trust and confidence have been lost as a result of the secret recording of the conversation.

“Having regard to the matters referred to above, I consider that reinstatement is inappropriate. I will now consider whether a payment for compensation is appropriate in all the circumstances”.

Is an order for payment of compensation appropriate in all the circumstances of the case?

The Commissioner:

“Having found that reinstatement is inappropriate, it does not automatically follow that a payment for compensation is appropriate. As noted by the Full Bench of the Fair Work Commission, “[t]he question whether to order a remedy in a case where a dismissal has been found to be unfair remains a discretionary one…”

“In this matter, there remain some gaps in the information such that I am unable to determine the matter of compensation at this time. As the Respondent points out, it is not clear from the document filed by the Applicant which entries are job applications and whether there are multiple entries related to the same application. It is also not clear what income the Applicant received after the dismissal”.

Anti-climax

“Directions will be issued in order that I can elicit the necessary information to enable me to consider and finalise the matter of compensation. Those directions will issue no later than Monday 17 August 2020”.

[Note at the time of reporting the matter of compensation had not been reported.]