DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Arja Pontinen
v
Ingleburn Veterinary Emergency Centre Pty Ltd T/A Ingleburn Veterinary Emergency Centre
(U2015/5214)

Application for relief from unfair dismissal.

[1] On 12 May 2015 Ms Arja Pontinen (the Applicant) lodged with the Fair Work Commission (the Commission) pursuant to s.394 of the Fair Work Act 2009 (the Act) an application for a remedy against her former employer, Ingleburn Veterinary Emergency Centre Pty Ltd T/A Ingleburn Veterinary Emergency Centre (the Respondent).

[2] The Applicant commenced employment as a veterinary nurse in December 2013 at the Respondent’s veterinary clinic in southern Sydney.

[3] The Applicant says that she was notified of her dismissal on 12 April 2015 and the dismissal took effect on the same day.

[4] The Applicant says that she was unjustly accused of stealing $148 from the till of the surgery. This incident took place on 23 March and was captured on a CCTV camera. On 24 March the Applicant was stood down without pay. The Respondent then said that she was a casual.

[5] On 21 April the Applicant was charged by the police with theft.

[6] The Applicant says that she was victimized and not given a proper opportunity to defend herself. She says that many other people have access to the till and that the practice manager had unfairly accused her. She says that the reason she opened the till was to put in an eftpos slip.

[7] In its F3 response the Respondent stated that the Applicant was told not to come in from 25 March because of the investigation and submits that this was the date of effect of the dismissal.

Commission Proceedings

[8] The Respondent lodged an F4 Objection to the application on 3 June 2015 on the ground that the application was out of time and there was no compliance with the Small Business Fair Dismissal Code. The Respondent had some eight employees.

[9] The matter was listed for conciliation on 3 June 2015 but was not settled.

[10] On 22 July 2015 Senior Deputy President Drake granted an extension of time.

[11] By the time the matter was allocated to me as part of the November 2015 roster on 13 November, there had been a couple of false starts arising from the Applicant’s requests for delay until the status of the criminal proceedings was clear.

[12] On 19 October 2015 the Respondent advised the Commission that the Applicant had been convicted in the Campbelltown Local Court of theft.

[13] I conducted a telephone programming mention on 6 November 2015. The Applicant appeared for herself. The Respondent was represented by Mr Anton Duc, counsel and Mr Mark Fetterplace, the director of the Respondent.

[14] The Applicant confirmed that she had been convicted but indicated that she had not been sentenced and would appeal. She requested an adjournment of the hearing pending more clarity with respect to these proceedings.

[15] I adjourned the 13 November hearing. The matter was listed for telephone mention on 21 December. Directions were issued for the Applicant to file further submission/evidence, especially with respect to the criminal proceedings against her, by 16 December. The Respondent was also directed to file by 18 December.

[16] On 20 December the Applicant sent an email advising that she had appealed her conviction and requesting an adjournment until after 12 February 2016, when she said the District Court hearing was listed.

[17] At the request of the Applicant, the mention was postponed until 17 February 2016. We were then advised, by the Applicant that the District Court appeal had been further adjourned until 22 March 2016.

[18] The matter was set down for hearing of for 31 March 2016.

[19] The Applicant did not object to this date and indeed the various adjournments were consistent with her requests and against the strenuous opposition of the Respondent. Nevertheless, while the Respondent was in attendance the Applicant did not appear. She also did not respond to attempts to contact her on the telephone.

[20] The Respondent made an application pursuant to s.399A that the matter should be dismissed. On 31 March, I wrote to the Applicant seeking her response as to why such an order should not be made.

[21] On 1 April the Applicant responded by email apologising for not answering her phone. She provided no explanation for her non-attendance at the hearing. She advised that the District Court hearing had been adjourned until 5 May. She provided no submission on the s.399A application.

[22] On 11 May the Applicant advised my chambers that the District Court proceedings had been further adjourned until 10 June 2016.

Relevant Legislative Provisions

[23] The following legislative provisions are relevant to the determination of this matter.

[24] Section 382 sets out the circumstances that must exist for the applicant to be protected from unfair dismissal:

“382 When a person is protected from unfair dismissal

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.”

The Applicant had the minimum period of service.

[25] The Applicant was covered by a modern award, the Animal Care and Veterinary Services Award [MA0000118]. In addition, her salary was below the high income threshold. It was conceded that she was a person protected from unfair dismissal in accordance with s.382.

[26] Section 396 provides that certain matters, one of which is the Small Business Fair Dismissal Code must be determined by the Commission, before proceeding to deal with the merits of a matter. It provides:

“396 Initial matters to be considered before merits

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.”

[27] The Small Business Fair Dismissal Code is relied on by the Respondent in its defence to the claim.

Was the dismissal unfair?

[28] A dismissal is unfair if I am satisfied, on the evidence before me, that all of the circumstances set out at s.385 of the Act existed. Section 385 provides the following:

“385 What is an unfair dismissal

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

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.”

[29] The Respondent submits that the applicant’s dismissal was consistent with the Small Business Fair Dismissal Code (the Code).

Small Business Fair Dismissal Code

[30] Compliance with the Code is a defence to an unfair dismissal claim. Section 388 of the Act provides for the Minister to declare the Code by legislative instrument. That was done on 24 June 2009.

[31] The Code provides:

“Small Business Fair Dismissal Code

Commencement

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

Summary Dismissal

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

Other Dismissal

In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job.
The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.

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

Procedural Matters

In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.
A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.”

Dismissal of the Application

[32] Section 399A provides:

“399A Dismissing applications

(1) The FWC may, subject to subsection (2), dismiss an application for an order under Division 4 if the FWC is satisfied that the applicant has unreasonably:

(a) failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application; or
(b) failed to comply with a direction or order of the FWC relating to the application; or
(c) failed to discontinue the application after a settlement agreement has been concluded.

(2) The FWC may exercise its power under subsection (1) on application by the employer.

(3) This section does not limit when the FWC may dismiss an application.”

[33] Section 587 provides:

“587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or
(b) the application is frivolous or vexatious; or
(c) the application has no reasonable prospects of success.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or
(b) has no reasonable prospects of success.
(3) The FWC may dismiss an application:
(a) on its own initiative; or
(b) on application.”

Consideration

[34] Following the incident on 23 March the Applicant was suspended, without pay, pending the investigation. The Respondent then said that she was a casual rather than formally dismissing her. Nevertheless, by the time the application was made, there is no dispute that the Applicant had been dismissed.

[35] I accept that the Respondent is entitled to rely on the Code. It had a reasonable belief that the Applicant had committed theft. It acted on that belief by carrying out a formal investigation and reporting the matter to the police. The Applicant was subsequently convicted. Even if the Applicant’s appeal is successful in the future, the Respondent’s defence to the unfair dismissal claim would stand.

[36] I am satisfied that this is an appropriate case for the Commission to dismiss the application pursuant to s.399A. The Applicant acted unreasonably by failing to attend the hearing on 31 March 2016. This was despite the matter being adjourned a number of times at her request. No explanation was provided for her absence and no written submission was provided despite my request.

[37] As I have noted, the Applicant subsequently advised that the appeal of her criminal conviction was delayed until June. This will not change the result and it is not in the interests of justice for a determination of the unfair dismissal claim to be further delayed. I would also dismiss the application pursuant to s.587 because it has no reasonable prospects of success.

[38] The application for unfair dismissal relief is therefore dismissed pursuant to s.399A and s.587. An Order [PR581150] accompanies this decision.

DEPUTY PRESIDENT

Appearances:

A. Pontinen, Applicant;

A. Duc, counsel with M. Fetterplace for the Respondent.

Hearing details:

2015

Sydney:

November 6 (Telephone Conference).

2016:

February 17 (Telephone Conference)

March 31.

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<Price code A, PR581111>