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.

The full decision can be found here.

Introduction

This FWC decision was as lengthy as the number of issues the (ex) employer had with the applicant. But suffice to say His Honour was singularly unimpressed with the applicant, but fell short of diagnosing her as delusional.

Background

The applicant in this matter was a ground services employee for a major airline since June 2011. She was dismissed for a number of timekeeping infractions (leaving early without permission) and applying for and taking leave without first gaining approval for the period of leave.

The Respondent’s decision to dismiss the applicant:

“…in light of the abovementioned findings, and having considered [the applicant’s] employment history which included earlier counselling, a formal written warning in 2018, and directions given to comply with lawful and reasonable management directions – and [the applicant’s] undertaking to comply with the same”.

In bringing this application, the applicant was:

“…unwavering with her narrative and it was readily apparent she genuinely believed she had been wronged by [the Respondent] on multiple occasions. Her perception remained solidly steadfast while indubitable facts rose to the surface whether through oral testimony or direct evidence…”

The background to this matter is extensive. An independent psychiatrist refers to the applicant having made 30 internal grievances over the past six years, two external claims of bullying to the Commission, and one underpayment claim to the Commission.

In her application, the applicant referred to a sexual harassment complaint she had made against another employee and being required to work with that employee., alleging that the other employee “was staring at her”. The complaint was investigated, and it was determined that there was insufficient evidence to substantiate the complaint. The applicant then lodged a workers’ compensation claim regarding symptoms she attributed to her “concerns”.

The applicant also sustained a knee injury in 2015 and was transferred to another work area for 12 months, and then returned to her pre-injury duties in 2017 to assess whether the applicant was able to perform the inherent requirements of her role.

Hayfever prevents training (but does not prevent drinking coffee)

In 2018, the applicant was found to be drinking coffee at a coffee shop, when she was scheduled to attend on-line training. She failed to respond to telephone enquiries and told no-one of her absence. Upon hearing that the applicant was seen at the coffee shop, her manager went to the coffee shop, where he had a conversation in which her manager said he asked the applicant if she was okay and she went on to refer to her eyes looking puffy, swollen, watery, bloodshot and her nose drippy. Her manager stating that the applicant stated “I AM DYING… I have hay fever”. When asked if she was too sick to work, the applicant responded in a sarcastic tone “No! I am out here taking my tablets!” Her manager requested that they continue the conversation in his office. The manager and the applicant attended to the manager’s office where the applicant became agitated and argumentative about him having approached her in the coffee shop.

Procedural flaws (commentary)

It has been observed previously in both Mr Ian Law v Groote Eylandt Mining Company Pty Ltd T/A GEMCO (Mr Ian Law), and Rogers v Millennium Inorganic Chemicals Limited & Anor that there is no obligation on an employer to conduct a perfect workplace investigation. What is required is for the employer to investigate the alleged misconduct which establishes the allegations on the balance of probabilities. As observed in Mr Ian Law, and employer is not required to investigate to the standard that would be expected of a police investigation. The strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove.

Inconsistent treatment (commentary)

In her evidence, the applicant referred to having received treatment that was inconsistent to that accorded to two other employees, having considered that the acts of the two other employees were more egregious than any conduct she had engaged in, or had been alleged to have engaged in, and yet they were provided with alternative avenues by which to end their employment (instead of termination).

In Darvell v Australian Postal Corporation, the Full Bench made the following comments in relation to the question of differential treatment between employees:

“[21] The issue of differential treatment of employees in respect of termination of employment was considered by Vice President Lawler in Sexton v Pacific National (ACT) Pty Ltd. In Sexton’s case, his Honour said:

‘[33] It is settled that the differential treatment of comparable cases can be a relevant matter under s.170CG(3)(e) to consider in determining whether a termination has been harsh, unjust or unreasonable …

‘[36] In my opinion the Commission should approach with caution claims of differential treatment in other cases advanced as a basis for supporting a finding that a termination was harsh, unjust or unreasonable…or in determining whether there has been a ‘fair go all round’…. In particular, it is important that the Commission be satisfied that cases which are advanced as comparable cases in which there was no termination are in truth properly comparable: the Commission must ensure that it is comparing ‘apples with apples’. There must be sufficient evidence of the circumstances of the allegedly comparable cases to enable a proper comparison to be made.”

“Similarly, in Daly v Bendigo Health Care Group, Senior Deputy President Kaufman said:

‘[62] I am troubled by the apparent disparity in the treatment of Mrs Daly and the other nurses concerned. However, on balance I have concluded that this factor does not render the otherwise justified termination of her employment into one which is harsh, unjust or unreasonable. There was no evidence led as to why the other three nurses were treated differently to Mrs Daly. The fact that none of them was sacked does not of itself render the treatment of Mrs Daly unjust. Although differential treatment of employees can render a termination of employment, harsh, unjust or unreasonable, that is not necessarily the case. I agree with Lawler VP’s observation in Sexton that “there must be sufficient evidence of the circumstances of the allegedly comparable cases to enable a proper comparison to be made” There is not, in this case, sufficient evidence to enable a proper comparison to be made. Having regard to Mrs Daly’s years of experience, her direct involvement with the patient to a greater extent than that of the other nurses and her refusal to acknowledge that she had acted inappropriately, I am not prepared to find that because the employment of the other nurses involved was not terminated, Mrs Daly’s termination of employment was harsh, unjust or unreasonable.”

In this matter, His Honour found:

“Although differential treatment of employees can render a termination of employment harsh, unjust or unreasonable, that is not the case here. From the scant amount of detail [the applicant] provided about the circumstances of the other two employees, it does not appear that the cases are in any respect comparable. However, I acknowledge that there is simply insufficient evidence to make any finding in this regard. Further, it is apparent from [the applicant’s] evidence that the two employees did ultimately have their employment concluded, although the route differed with respect to how that end was reached. One ended by way of resignation (asserted to have been offered), and the other redundancy. In short, the argument pressed by [the applicant] is absent foundation. There is insufficient evidence of the circumstances of the allegedly comparable cases to enable a proper comparison to be made”.

Concluding

His Honour finding that:

“…[the applicant’s] dismissal was not the result of the rogue action of [the respondent]…It was a most measured response to repeated and reprehensible misconduct, carried out with an admirable amount of unyielding patience, understanding and procedural fairness.

“…I do not consider that Ms Jeffs’ dismissal was disproportionate when one considers her repeated non-compliance with written and verbal directions, the disrespect shown to supervisory and managerial staff, and the taking of unauthorised leave”.

Sympathetic, but…

“Further, a dismissal may, depending upon the overall circumstances be considered to be harsh on the person due to the economic and personal consequences resulting from being dismissed. I have taken into account that [the applicant] was an employee with lengthy service. I appreciate that at the time of [the applicant’s] dismissal that she had been on [Return to Work Plan} No. 6 for a work-related knee injury. I observe that it was uncontentious that [the respondent] had complied with its obligations regarding the relevant workers’ compensation legislation. However, I very much appreciate that it may be difficult for [the applicant] to find work. The financial and emotional impact of [the respondent’s] decision to dismiss her has been significant. It has also came at a time where [the applicant] has lost her mother after a period of illness.

“The Commission’s role is not to consider what it would have done, had it been in the position of the employer. Rather, it must consider whether the dismissal was harsh, unjust or unreasonable, taking into account all of the circumstances. I have sympathy for [the applicant] both because of the loss of her mother and her job, and because she lacks insight into how her behaviours are perceived by those around her. There is no demonstration of contrition, and her communication with leaders shows a lack of respect, and, at times, contempt”.[My emphasis].

Overall, His Honour considered some 239 citations in determining this matter.

Commentary

The applicant is this matter was clearly a problem employee, going on the offensive at every opportunity in an effort to mitigate her shortcomings.

In this matter, her (ex)employer provided procedural fairness to the limit I can only imagine. My only thought is (and this requires a great deal of hindsight) that it would have been far cheaper to terminate the employee’s services earlier, even though it may have resulted in an unfair dismissal award.