FWA 195
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
PERTH, 15 JANUARY 2010
Termination of Employment.
 This application has been lodged by Ms Kathryn Docking (the applicant) who is applying for an unfair dismissal remedy under section 394 of the Fair Work Act 2009. The respondent employer is Mantova Holdings Pty Ltd T/A Raine and Horne Midland (the respondent).
 The application was dealt with by a Fair Work Australia conciliator however the matter was not settled.
 The applicant was employed by the respondents from 4 February 2008 until 22 July 2009. The applicant’s employment was terminated by way of a letter provided by the respondent's Licensee/Principal Vince Pileggi and dated 22 July 2009.
 The applicant explains in her evidence that on 7 July 2009 she wrote to Michael Pileggi the manager of the respondent regarding concerns at the way she had been treated and regarding some accusations he had raised the previous day.
 The next day 8 July 2009 Michael Pileggi gave her a letter which was a first written warning. The letter says it has been issued due to Ms Dockings argumentative behaviour towards some clients, staff and members of management and a lack of effective communication with other team members.
 The applicant says that she was not able to properly respond at the time this letter was given to her because she had to leave the workplace to pick up her children.
 The next day 9 July 2009 Michael Pileggi handed her a letter which was said to be a second and final warning. It raises the same issues as the first warning letter. The letter indicates that if Ms Docking has any questions regarding these issues she should speak to either Michael or Vince Pileggi. The letter also stresses that Ms Docking should not attempt to approach clients or other staff members regarding this warning notice.
 Later that morning at approximately 11:30 a.m. Ms Docking says that Vince Pileggi called her into his office and Michael Pileggi was in attendance. Ms Docking told them that giving her the written warnings without any opportunity to respond was unfair. Vince Pileggi said that he would rip up the second warning notice and that things don't have to be like this. However Ms Docking says she told him that the letter had been issued and she was keeping it.
 Ms Docking asked them about the concerns they had with her and they raised a number of complaints with her which she responded to. Ms Docking says that they again repeated that her behaviour with staff was argumentative but that they could only give her one example of such a disagreement.
 There was also discussion about what they meant by poor communication.
 The next day 10 July 2009 Ms Docking became unwell and proceeded on sick leave not returning to work until 16 July 2009.
 On that day the receptionist showed her an inappropriate photograph that had been taken on a work mobile phone. Ms Docking wrote a letter of complaint to the respondent about this matter. The next day 17 July 2009 Ms Docking was ill and absent from work. She remained unwell not returning to work until 22 July 2009. That day she was telephoned by Vince Pileggi who requested that when she came into the office she report directly to him. Later that day she did as requested and Vince Pileggi then provided her with the letter of termination.
 The letter explains that Ms Docking had previously been issued two written warnings as mentioned above. It states that since then she has not made an adequate effort to improve rather she has become worse and has affected others in the workplace. The letter also alleges Ms Docking has been using office equipment in the workplace to apply for a new job elsewhere. As a consequence the letter explains that the employment is now ended.
 The relevant provisions of the Act are considered below.
“s. 396 Initial matters to be considered before merits
FWA 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.”
Was the application made within the period required?
 The applicant was terminated on 22 July 2009 and this application was lodged on 24 July 2009. The application has been made within the period required in subsection 394 (2), being within 14 days after the dismissal took effect.
Is the applicant protected from unfair dismissal?
 Section 382 specifies when a person is protected from unfair dismissal as follows:
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 respondent from the evidence employed at the time of the termination six employees and so is a Small Business Employer. Therefore under s. 383 the minimum employment period applicable is 12 months. There is no doubt that the applicant has completed a period of employment of at least 12 months. It is not suggested that the applicant’s annual earnings exceed the higher income threshold.
 Consequently I find that the applicant is protected from unfair dismissal.
Was the dismissal consistent with the Small Business Fair Dismissal Code?
 Section 388 states that a person's dismissal was consistent with the Small Business Fair Dismissal Code if:
“(2)(b) The employer complied with the Small Business Fair Dismissal Code in relation to the dismissal.”
 The Small Business Fair Dismissal Code (the Code) is set out below:
“Small Business Fair Dismissal Code
The Small Business Fair Dismissal Code comes into operation on 1 July 2009.
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.
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.
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.”
Has the employer complied with the Small Business Fair Dismissal Code?
 What occurred in this case was not a summary dismissal for misconduct and these parts of the above Code do not apply. The Code also has provisions dealing with “Other Dismissals” which are applicable.
 In this instance the employer did give the employee a reason why she was at risk of being dismissed. This was explained in the two warning letters of 8 and 9 July 2009. Certainly she contested the reasons and holds a different view about the issues but considering the evidence of the three witnesses does not allow me to conclude that the reasons where not sound, defensible or well founded. Certainly the reasons her employment was at risk were reasons based on her conduct or capacity to do her job.
 Ms Docking was warned in writing that she risked being dismissed if there was no improvement. She did have an opportunity to respond to the warning and had a reasonable chance to rectify the problems however the respondent considered that her behaviour in response was in part further repetition of the behaviour that triggered the warnings.
 That being the case I am satisfied that the respondent has complied with the Small Business Fair Dismissal Code in relation to the dismissal.
 Consequently for the purposes of s.385 the dismissal was consistent with the Small Business Fair Dismissal Code.
 There is no suggestion that the employment ended because of redundancy.
 In summary considering the initial matters under section 396 I find that:
 Section 385 defines what is an unfair dismissal as follows:
“A person has been unfairly dismissed if FWA 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.”
 A person has been unfairly dismissed only if all of the criteria in s.385 (a), (b), (c) and (d) are satisfied. In this case I am satisfied the dismissal was consistent with the Small Business Fair Dismissal Code. Consequently within the meaning of s. 385 the applicant has not been unfairly dismissed.
 Therefore this application will be dismissed and an order to that effect will issue in conjunction with this decision.
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