FWA 8303
Fair Work Act 2009
Pat Thomas Memorial Community House Inc
PERTH, 10 OCTOBER 2012
Termination of employment.
 This matter involves an application made by Ms Rhonda Shaw (the Applicant) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent employer is Pat Thomas Memorial Community House Inc (the Respondent).
 The application was the subject of a conciliation conference with a Fair Work Australia Conciliator however the matter was not settled and has been referred to myself for determination.
 The Respondent is a not-for-profit organisation providing services to women and children who have experienced or witnessed domestic violence. The services include a women’s refuge providing emergency accommodation as well as outreach support services for women who have left the refuge and a range of other advisory, information and support services.
 The Applicant worked for the Respondent for approximately nine years from January 2003 through to her dismissal in March 2012. At the time of her dismissal she was employed as the Coordinator for Domestic Violence Outreach Services.
 At the time of the Applicant’s dismissal the Respondent had 13 employees and so was a small business.
 The Executive Officer at the time of the Applicant’s dismissal, being the most senior management position, was Ms Barbara Payne.
 The Applicant was dismissed with notice on 22 March 2012 and was advised of this when the Vice Chairperson of the Respondent’s Board Ms Be Westbrook, accompanied by Ms Payne, handed her a letter to that effect.
The witness evidence
 The Applicant gave evidence on her own behalf and evidence from Ms Victoria Williams, Ms Jennifer Burmaz and Ms Kim Wilkinson all employees of the Respondent was called in support of the Applicant.
 Evidence for the Respondent was given by Ms Be Westbrook, the Respondent’s Vice Chairperson and Ms Barbara Pannell, a past Board member as well as Ms Margaret Adams, Ms Felicity Scott and Ms Kim Stevens all of whom are employees of the Respondent.
 The Executive Officer Ms Payne was not called to give evidence because the Respondent advised it was concerned about possibly negative impacts on her health from doing so.
 In late 2011 the Respondent issued the Applicant with a new contract of employment to sign which she forwarded to the Australian Services Union (the ASU) of which she was a member, for their review. The Applicant advised Ms Payne that she had done this and Ms Payne advised the Applicant that she was disappointed that she had involved the union.
 From this time onwards the Applicant felt and believed that Ms Payne had begun to treat her differently, questioning her about day-to-day matters, micromanaging her and undermining her in front of other staff.
 At the time this was occurring the ASU had just begun to become involved on behalf of other employees as a bargaining representative in negotiations with the Respondent for an enterprise agreement.
 Around this time the Applicant was active on behalf of the ASU in recruiting members in the workplace. The Applicant had been an active delegate of the ASU and an advocate for other staff over a range of concerns throughout 2011 and 2012.
 On 13 March 2012 the Applicant wrote up an “Accident/Incident/Hazard Management Report” which she gave to Ms Payne as the Chief Executive Officer 1.
 The report described some discussions between Ms Payne and the Applicant and characterised what had occurred as:
“...constant harassment, constant scrutiny and undermining by Barbara Payne. I feel Barbara’s questioning my integrity and my commitment to my job. I have been an employee of Pat Thomas Memorial community house for nine years and have never felt so disrespected. By harassment I mean coming to my office unannounced instigating a conversation questioning my whereabouts and making unfounded accusations with a smirk on her face and questioning my integrity and calling me a liar.”
 The report concluded with the statement that the Applicant would be forwarding this to her union and discussing her options with them.
 On 14 March 2012 during a monthly staff meeting there was some conflict between the Applicant and Ms Adams about what the Applicant was attempting to explain to other staff. Ms Adams interrupted the Applicant as she was speaking and there was some tension between the two. Ms Payne intervened between Ms Adams and the Applicant asking Ms Adams to stop speaking and appeared to be angry with the Applicant apparently regarding what she was talking to the staff about.
 On 19 March 2012 the Applicant was handed a written warning 2 in the form of a letter from Ms Westbrook.
 The letter explained that the Board had endorsed two actions being:
1. to advise the Applicant formerly in writing that she was required to abide by any and all instructions and directions given to her by the Executive Officer; and
2. to issue the Applicant a written warning for her failure to uphold the Respondent’s Code of Professional Conduct.
 The letter explained further that in respect to the second item the Board’s view was that her performance and behaviour was not in keeping with the ethos of the organisation and three examples were provided:
1. Undermining the authority of the Executive Officer by instructing staff at a meeting to take their concerns regarding the service to the Applicant contrary to the instruction given to her regarding her role in the organisation.
2. Her performance and behaviour at the same meeting causing stress and anxiety to other staff members.
3. She had conducted herself unprofessionally by questioning a staff member of another service regarding a lunch organised for workers of another service.
 The letter further stated that each of these three matters had been raised in an incident report submitted to Ms Payne.
 The letter concluded by advising that in the event of any other action on the Applicant’s part which in the view of the Executive Officer breaches any instruction or direction or which has the potential to cause damage to the Respondent this would result in further disciplinary action potentially including termination.
 There was no discussion between the Applicant and any representative of the Respondent prior to the issuing of this warning letter or after the issuing of this warning letter about the concerns identified by the Board in their letter.
 The Applicant set about preparing a response to the warning letter 3 which she sent to the ASU for their reaction. This response disputed vigorously all of the issues raised in the warning letter.
 The Applicant’s written response to the letter of warning was never provided to the Respondent because three days after the warning letter was provided, on 22 March 2012, the Applicant was dismissed from her employment.
 On that day, 22 March 2012, before the Applicant was advised that she was terminated Ms Payne gathered the other staff together in a separate room and advised them that she was about to deliver some devastating news to the Applicant and that the Applicant was to be dismissed and would be asked to leave the premises immediately. The staff were directed to remain in that room.
 Ms Westbrook and Ms Payne then approached the Applicant in her office and told her they need to talk to her.
 The Applicant insisted on Ms Kim Wilkinson being present before those discussions commenced and this was duly arranged.
 When Ms Wilkinson was present Ms Westbrook and Ms Payne advised her that she was to be terminated effective immediately and was handed a letter of termination to that effect.
 There was no discussion about the matter and the Applicant was not given any opportunity to respond.
 The letter of termination dated 22 March 2012 says that the Board has,
“...received advice that you have failed to follow a written direction in regard to correspondence with the Departments of Child Protection. Specifically, you emailed Lorena Rose to seek an extension of time for the submission of a report.
In doing so, you have potentially impacted our relationship with the Department and damaged our reputation. Your actions are in breach of instructions previously given to you to ensure that all outside contact is to go through the Executive Officer. This has previously been the subject of discussion with you.
The Board is concerned that your action can be seen as an attempt to undermine the authority of the Executive Officer.
The Board has determined that your conduct breaches the organisation’s values and is inconsistent with our aims and objectives. We had hoped that previous attempts to discuss these matters with you would have resulted in a change in your behaviour. In determining the actions available to us we have considered the warning provided to you this week. Having issued the warning, we would have expected that you would have sought to immediately contact the Executive Officer to explain your actions in emailing Lorena Rose.
We believe that there is no longer a basis for a trusting and supportive relationship between yourself and the Executive Officer and have determined that your employment will cease with effect from 27 April, 2012.”
 The dismissal was effected with pay in lieu of notice.
 The email referred to in the letter of termination had been sent by the Applicant to Ms Lorena Rose, Contract Manager of the Department of Children Protection. The letter was carbon copied to Ms Payne.
 The purpose of the email was to request a four-week extension for a progress report to be provided to the Department.
 Ms Rose responded promptly the same day by email to both the Applicant and Ms Payne explaining that a request for an extension of time to submit the 6 monthly progress report “...is a formal process that needs to come via your Manager” who of course in this case was Ms Payne.
 Prior to sending this email to Ms Rose the Applicant had not discussed her intention to do so with Ms Payne.
 The Applicant’s evidence in cross examination was that she had a cordial and respectful relationship with Ms Adams and there were no disputes between them. She characterised her relationship with Ms Payne as professional. I do not accept the Applicant’s evidence on this and prefer the evidence of multiple witnesses for the Respondent to the contrary.
 The Applicant denied she was ever told it was not her role to directly contact external agencies such as the Department of Child Protection.
 The Applicant denied ever bullying or intimidating staff and her evidence was that this was never raised with her by anyone on behalf of the Respondent.
 I accept that this was never formally raised by the Respondent but reject the Applicant’s evidence she has never bullied or intimidated other staff. I prefer the evidence of other witnesses to the contrary on this point.
 The evidence of Ms Burmaz was there was considerable tension between the Applicant and Ms Adams at the staff meeting on 14 March 2012 and that that she felt the Applicant raising particular issues was reasonable.
 Evidence to a similar effect was given by Ms Wilkinson regarding the 14 March 2012 staff meeting and her evidence confirmed the manner in which the dismissal of the Applicant was dealt with on 22 March 2012 as explained above.
 The evidence of Ms Williams also confirmed the manner in which the Applicant was dismissed on 22 March 2012.
 The evidence of the Respondent’s witnesses described a situation where there had been considerable conflict and tension in the workplace for a lengthy period of time and that the Applicant was a central cause of this disharmony.
 The evidence of Ms Westbrook was that relationships between the Applicant and Ms Payne, Ms Adams, some Board members and some staff had seriously deteriorated because all these other persons were intimidated by the Applicant to the point that neither Ms Payne nor the Board members were willing to meet with the Applicant one-on-one. As a consequence there was no open communication between Ms Payne and the Applicant nor between Board members and the Applicant. As a result discussions and conversations that Ms Westbrook concedes should have been held with the Applicant by Ms Payne, dealing with the Applicant’s misbehaviour, were avoided and did not occur.
 Ms Westbrook’s evidence was that Ms Payne had done a very good job of pulling together an organisation that in 2010 had been in crisis. As a consequence of previous poor management Ms Payne needed to make a range of changes to the operations within the Respondent. Outside consultants were called in for advice and in mid-2011 a range of changes to rosters, staff hours, wages and employment contracts were undertaken.
 Ms Westbrook’s evidence was that the Applicant was resistant to many of these changes which created conflict between her and Ms Payne and that the Applicant was the source of a continuous stream of challenges and complaints about changes Ms Payne was making.
 In December 2011 Ms Westbrook says during an exit interview with another staff member, with the Applicant and Ms Payne in attendance, that staff member made derogatory statements about Ms Payne, was rude abrupt and aggressive and acted in a degrading manner towards Ms Payne all of which the Applicant supported. Ms Westbrook cites this incident as an instance of bullying and intimidation of Ms Payne by some staff including the Applicant.
 In late December or early January 2012 Ms Payne went on leave and Ms Adams was to act as the Executive Officer. Ms Westbrook says the Applicant openly refused to work with Ms Adams if Ms Adams was to be the Acting Executive Officer.
 On 9 March 2012 Ms Westbrook’s evidence is that the Board received a letter from Ms Adams stating that she had been constantly bullied and intimidated and subject to aggression and abuse from the Applicant. The letter also indicated that the Applicant was nasty aggressive and rude to Ms Payne.
 At the same time as the first warning letter was given to the Applicant on 19 March 2012 other staff including the Applicant were given a letter reminding them all of the Code of Professional Conduct they should adhere to.
 Ms Westbrook’s evidence is that since the termination of the Applicant harmony has returned to the workplace.
 I accept the above evidence of Ms Westbrook.
 Ms Margaret Adams also gave evidence and she is the Team Leader/Outreach Coordinator.
 The evidence of Ms Adams was that over a period of time through 2011 as there were a number of changes in management and as changes were made to operational arrangements the Applicant became increasingly hostile to herself and Ms Payne.
 As examples of this Ms Adams says that during a meeting on 21 December 2011 between Ms Payne, Ms Adams and the Applicant at a time when Ms Payne was going on leave and Ms Adams was to act in her position Ms Payne asked the Applicant if she could liaise with Ms Adams regarding Womenzlink brokerage matters in her absence. In response the Applicant in an aggressive tone of voice flatly refused the Executive Officer’s request for her to do this.
 The following day the Applicant approached Ms Adams and in a very aggressive tone asked to speak to her. The pair held a discussion in an office regarding whether clients should use the toilets at the refuge or the office. Ms Adams asserts that the Applicant was very rude and aggressive about the issue. Ms Adams says she felt bullied by the Applicant’s behaviour and believed she was trying to take authority away from Ms Adams while she was acting in the Executive Officer role. Ms Adams evidence was that it is difficult to have a conversation with the Applicant because she often does not want to listen to reason, she becomes very aggressive and is very intimidating.
 Whilst training a new staff member Ms Adams took her to the Applicant’s office to introduce her to the Applicant who was very rude to the new staff member and spoke to her in an aggressive tone.
 Ms Adams says she has witnessed staff being bullied by the Applicant into joining the union and that some staff have told her they did not wish to join but felt intimidated and bullied by the Applicant but fearing repercussions went along with what she said.
 Ms Adams says that because of the intimidation and aggressive and abusive behaviour of the Applicant she started applying for jobs elsewhere and advised the Board of Management that the stress was affecting her health.
 During a staff meeting on 14 March Ms Adams says the Applicant’s discussion of issues with staff involved her making critical judgements of Ms Adams decisions and actions and when Ms Adams sought to clarify these issues in the meeting the Applicant would not listen to what Ms Adams was saying and was quite intimidating in front of the other staff. Ms Adams evidence was that what the Applicant was saying to staff implied that if they needed to know anything else they should contact her directly, thereby undermining Ms Adams’ position as Team Leader/Outreach Coordinator whom supervises all support workers in the refuge and outreach.
 Ms Adams says she witnessed the way that the Applicant spoke to Ms Payne and that she was a very nasty, aggressive rude and bullying.
 Her evidence was since the Applicant was dismissed the refuge has become a pleasant working environment where all the staff are working together as a team and there is no longer any tension.
 I accept the evidence above of Ms Adams.
 The evidence of Ms Scott who was employed in early December 2011 was that after a short period of time her experience of the workplace was that it was a hostile and unpleasant environment. Her evidence was that at times in a room full of people she was being pressured to sign documents by the Applicant and it was often said by the Applicant that it didn’t really matter what she thought or felt about the issues because the majority were on board with the Applicant and the majority would rule. Her evidence was that she was told repeatedly that management, being Ms Payne and Ms Adams were not to be trusted. She believed that the Applicant was the driving force behind these views and says it felt like the Applicant was pursuing a personal vendetta.
 Ms Scott says that overall she found the Applicant’s whole demeanour intimidating.
 Her evidence was that there was considerable criticism and complaints from other staff about Ms Payne and Ms Adams however at no time did she ever feel victimised or intimidated by Ms Payne or Ms Adams and found Ms Payne nothing other than approachable and a fair boss.
 Ms Scott says she was often shocked by the blatant disrespect and rudeness that management were shown by the Applicant. She had witnessed verbal confrontations the Applicant had with Ms Adams in front of other staff on at least two occasions. She believes that the Applicant was intimidating and bullying staff and management.
 Her evidence was that since the dismissal of the Applicant the workplace has been noticeably more peaceful and the conflict and tension has waned.
 I accept the evidence above of Ms Scott.
 Ms Stevens who gave evidence has worked for the Respondent for approximately eight years. In November 2010 she left the Respondent’s employment for a period of three months. Her reason for leaving was predominantly due to workplace bullying at the hands of the Applicant and other staff members. Such behaviour included constant questioning of her use of time, being excluded from conversations and activities in the workplace and being intimidated by the Applicant’s passive aggressive conduct.
 At that time she and a work colleague had made enquiries into workplace harassment and bullying with the Human Rights Commission but did not follow through with a complaint being fearful of repercussion at their employment.
 Having left because of the bullying and intimidation she later became aware that there had been some changes in management and so approached the then new Manager Ms Payne for a job.
 Returning to work for the Respondent Ms Stevens at first did not experience any bullying from the Applicant but rather the opposite and the Applicant welcomed her positively.
 Ms Stevens’ belief was that the Applicant’s conciliatory approach to her was because she was seeking support in her attempts to challenge Ms Payne and Ms Adams.
 Once Ms Stevens realised this she decided to stay neutral and as this became apparent to the Applicant Ms Stevens says she was once again treated differently to other staff members.
 Ms Stevens says that the Applicant had a vendetta against Ms Adams. She has witnessed the Applicant raising her voice and intimidating Ms Adams in a staff meeting which was not caused by Ms Adams and was diffused by Ms Payne. She says that she felt uncomfortable and wanted to leave the room when this occurred.
 Ms Stevens corroborated the example Ms Adams gave of the Applicant approaching Ms Adams about clients using particular toilets. She confirmed that the Applicant shut the door to the office whilst talking to Ms Adams in a raised voice.
 I accept the evidence above of Ms Stevens.
 Ms Pannell whom gave evidence was previously a member of the Respondent’s Board. Her evidence was that in September 2010 Ms Payne was employed as a Team Leader. When the Manager retired Ms Payne was asked by the Board to take on the position of Manager and was eventually promoted to Executive Officer. Ms Pannell was the Chairperson of the Board at this time.
 Ms Pannell had been a member of the Board for 12 years and Chairperson of six years and believed the Ms Payne is the best Manager the Respondent has had and that she was extremely efficient and has good people skills.
 Her evidence was that the Applicant has over time attempted to intimidate and bully Ms Payne and Ms Adams and herself, in some cases successfully. In addition some staff have informed Ms Pannell that they too were bullied by the Applicant.
 Ms Pannell gave evidence that on one occasion following a staff meeting she and another Board member were taken into a room by the Applicant who then screamed aggressively at the other Board member and continued to do so ignoring attempts by Ms Pannell to calm her down.
 Ms Pannell after 12 years as a volunteer resigned from the Board of Management because she could no longer cope with this intimidation and bullying that was going on.
 As I have noted earlier the Applicant in her evidence and in cross examination denied having intimidated or bullied any staff of the Respondent. Importantly this evidence conflicts with the direct evidence of the four witnesses called by the Respondent.
 The Respondent’s witnesses gave evidence openly and where not shaken in cross examination and I accept their evidence regarding their experiences of the Applicant. Specifically I find that over the course of 2011 and up to the time of her dismissal in March 2012 the Applicant had been frequently rude, aggressive and intimidating in her interactions with a number of staff, the Executive Officer Ms Payne, the Team Leader/Outreach Coordinator Ms Adams and with some members of the Board of Management. There is no evidence that she had been treated in any similar way by these persons.
 Those sections of the Act particularly relevant to this application are set out below.
“385 What is an unfair dismissal
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.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA 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 FWA considers relevant.”
“388 The Small Business Fair Dismissal Code
(1) The Minister may, by legislative instrument, declare a Small Business Fair Dismissal Code.
(2) A person’s dismissal was consistent with the Small Business Fair Dismissal Code if:
(a) immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person’s employer was a small business employer; and
(b) the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal.”
“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.”
 The Small Business Fair Dismissal Code is a follows:
“Small Business Fair Dismissal Code
The Small Business Fair Dismissal Code came 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.”
 The Applicant was dismissed by a letter of termination dated 22 March 2012. The reasons for the Applicant’s dismissal given in that letter were that despite a previous warning given to the Applicant she had emailed Lorena Rose seeking an extension of time for the submission of the report and in doing so had failed to follow a written direction regarding correspondence with the Department of Child Protection.
 The evidence in this matter however demonstrates that the written warning given to the Applicant on 19 March 2012 and the issues raised therein had never been the subject of any discussions between the Applicant and the Respondent’s management. The Applicant had not had any opportunity to put to the Respondent’s management her view about the issues raised in that warning letter.
 Secondly while the Applicant certainly did email Ms Rose at the Department of Child Protection seeking an extension of time for the submission of a report there is no evidence that prior to this there was a written direction specifically regarding correspondence with the Department of Child Protection or other external agencies issued to the Applicant.
 Consequently there is no basis for concluding that the Applicant’s emailing of Ms Rose was in some way contrary to a written direction.
 Clearly then the reasons for the Applicant’s dismissal as they were stated in the termination letter were not sound, defensible or well founded. The reasons for dismissal stated in the termination letter were not valid reasons for dismissal.
 Even if these reasons were valid reasons for dismissal the Applicant had been denied procedural fairness by the Respondent in that prior to being handed the letter of termination there had been no discussion with her about the supposed failure to follow a written direction or that her actions could be seen as an attempt to undermine the authority of the Executive Officer. In fact there were no discussions at all with the Applicant about any of these matters prior to the Respondent taking the decision to dismiss the Applicant. The letter of termination was delivered to the Applicant as a fait accompli.
The Small Business Fair Dismissal Code
 To comply with the Small Business Fair Dismissal Code there must be a valid reason based on employees conduct or capacity and the employee must be warned that he or she risks being dismissed if there is no improvement and the employee must be given an opportunity to respond to the warning and given a chance to rectify the problem. None of these requirements were met and consequently the dismissal of the applicant was not consistent with the Small Business Fair Dismissal Code.
Was that the dismissal harsh, unjust or unreasonable?
 I turn now to consider whether the dismissal was harsh, unjust or unreasonable and the criteria set out in section 387 of the Act.
 If the evidence before the Tribunal in this matter solely dealt with the issues set out in the letter of termination then undoubtedly the conclusion would be that the Applicant’s dismissal was harsh, unjust or unreasonable.
 However significant evidence was provided about the Applicant’s behaviour over an extended period of time leading up to her dismissal. As I have found previously the Applicant had for a lengthy period of time being rude, aggressive and intimidating in her interactions with other staff, the Respondent’s management and Board members. The Applicant was also regularly insubordinate to Ms Adams and Ms Payne.
 The evidence is that the Applicant had been an active delegate of the ASU and an advocate for other staff over a range of concerns throughout 2011 and 2012 however this does not explain nor in any way justifies the inappropriate manner in which she interacted with other staff, management and Board members.
 In an application where the Tribunal is asked to decide whether the dismissal of an employee is unfair the authorities make it clear that a valid reason for a dismissal need not be that reason which was given by the employer at the time of dismissal.
 In MM Cables (A Division of Metal Manufacturers Limited) v Zammit 4, a Full Bench of the Australian Industrial Commission held that,
“…the Commission is obliged to consider whether there was a valid reason for the termination – that inquiry is not limited to the reason given by the employer for the termination.”
 More recently in Aperio Group (Australia) Pty Ltd T/A Aperio Finewrap v V Sulemanovski 5 a Full Bench of this Tribunal held that,
“In addressing whether there was a valid reason ... (the Commissioner found that the specific reason for termination) ... was the failure by the applicant to sign the letter of undertaking as demanded by the employer, although he noted that the termination itself must be viewed and considered in the context of the applicant’s behaviour in the workplace over a significant period of time...
It is apparent that in applying s.387(1)(a) of the Act, (the Commissioner) limited his consideration to whether the reason that Mr Sulemanovski refused to sign the undertaking was a valid reason for the termination of employment. The Commissioner was obliged to consider more broadly whether there was a valid reason for the dismissal related to Mr Sulemanovski’s capacity or conduct ... In restricting his consideration to whether the refusal to sign the undertaking was a valid reason for the termination the Commissioner erred, acting upon a wrong principle and misapplying the statutory requirements.”
 So in this case I am under the legislation obliged to consider the broader question of whether there was a valid reason for the dismissal related to the Applicant’s capacity or conduct not the narrower question of whether the reason given by the Respondent for the Applicant’s dismissal was a valid reason.
 That being the case I am satisfied that there was a valid reason for the Applicant’s dismissal related to her conduct being her extremely inappropriate behaviour towards other staff, the Respondent’s managers and Board members which had occurred over a lengthy period of time and can be characterised variously as aggressive, intimidating and insubordinate. This was conduct by the Applicant that should not have been tolerated at all. The evidence is that the Applicant’s misbehaviours caused significant stress, upset and anxiety to a range of people.
 The authorities also however make it plain that if there was a valid reason for dismissal which was not put to the employee at the time of the dismissal this may itself have ramifications.
 In APS Group (Placements) Pty Ltd v Stephen O’Loughlin 6 a Full Bench of Fair Work Australia held that,
“An employer is entitled at the hearing of an application for an unfair dismissal remedy to rely upon whatever reason(s) the employer wishes to rely upon at the time, albeit that in relation to any reason not relied upon at the time of dismissal the employer will have to contend with the consequences of not giving the employee an opportunity to respond to such reason (see s.387(b) and (c) of the FW Act).”
 And so it is in this case that the Respondent did not put to the Applicant that she might be or was to be dismissed for her at times aggressive, intimidatory and insubordinate behaviour. I accept the Applicant’s evidence that these issues were never broached directly with her by the Respondent.
 Considering then the other criteria in section 387(a) to (h) of the Act, it is clear that the Applicant was not notified of the valid reason for dismissal to do with her aggressive, intimidatory and insubordinate behaviour nor was the Applicant given an opportunity to respond to these reasons related to her conduct.
 There was no unreasonable refusal by the Respondent to allow the Applicant to have a support person present during the meeting where she was handed her termination letter but in any event there were no discussions with her regarding her dismissal that related to the valid reasons I mentioned above that involved her behaviour with other staff, management and Board members.
 The dismissal was not related to the Applicant’s performance.
 The employer is a small business and whilst it called on external expertise the mishandling of the dismissal of the Applicant in many ways is a result of the employer’s small size and lack of specialist Human Resource Management expertise.
 The Applicant had been employed for nearly nine years at time of her dismissal which is a relevant factor.
 Because both the Respondent’s senior managers and the Board members felt intimidated by the Applicant the obvious counselling that would commonly be given to an employee exhibiting such misbehaviour as was the case here did not occur. The Respondent’s Executive Officer never formerly counselled the Applicant about her inappropriate interactions with other staff and with herself or Board members. Ultimately matters were brought to a head very rapidly over a period of a few days but in a manner and a time frame that did not allow the Applicant to appreciate that the Respondent, which had never raised their concerns with her, now considered her behaviour as sufficiently serious that her dismissal was under consideration.
 Perhaps it should have been obvious to the Applicant that dismissal was a likely outcome of her continued misbehaviour. Regardless the Applicant was entitled to be warned she could lose her job if she continued to misbehave and to have an opportunity to improve her behaviour. The Respondent absolutely failed to recognise their obligation in this regard. Given her previous positive employment record of some eight years such an opportunity might have changed the ultimate outcome. However such an opportunity was not given to the Applicant. Similarly the Applicant was also denied any opportunity to be heard on the Respondent’s intention to dismiss her before this decision was final. As a consequence of the Respondent’s failure to provide the Applicant any form of procedural fairness the dismissal of the Applicant was unjust and unreasonable.
 The evidence of the witnesses for the Respondent has persuaded me that reinstatement of the Applicant is not appropriate. I do though consider that an order for payment of compensation is appropriate in all the circumstances of this case.
 The parties have provided submissions with respects to the calculation of a remedy of compensation under section 392 of the Act.
 The Applicant was employed for a little over nine years.
 In estimating how long the Applicant would have remained in employment with the Respondent I have taken into consideration the fact that a proper process of counselling and discipline might possibly have resolved the Applicant’s misbehaviour but given the history I think it is more likely than not that at the end of such a process there would have remained reasons for dismissal and the Respondent would have dismissed the Applicant. I am also conscious that the Applicant was seriously dissatisfied with the direction the Respondent’s new management had taken and consequently even if her behaviour had moderated she was unlikely to have stayed in the Respondent’s employment in the long-term and instead sought work elsewhere. In my view the anticipated period of employment had the Applicant not been dismissed was 16 weeks.
 The information from the Applicant is that she was earning $1 083 per week but this had been increased by 6% due to a change in state government funding operative from 1 July 2012 and this had been back paid to 1 July 2011. Allowing for the 6% increase then her weekly salary was $1 148 gross per week. The information also is that an additional $3 635 would have been back paid to her as a consequence of this increase.
 Consequently the remuneration the Applicant would have received or would have been likely to receive if she had not been dismissed is in total:
$1 148 x 16 = $18 368 plus the $3 635 making a total of $22 003 gross.
 I accept that the Applicant has made appropriate attempts to mitigate her loss and has gained some employment since her dismissal.
 The amount of remuneration the Applicant has earned between the date of her dismissal and the end of the anticipated period of employment is limited to one weeks work in July. Other amounts were earned in August but this was after the end date of what I have determined to be the Applicant’s anticipated period of employment so will be ignored in the calculations.
 The Applicant has not separately advised what she earned for this one weeks work in July so I will deduct the equivalent of one weeks earnings with the Respondent from the remuneration the Applicant would have received reducing the total to $20 855 gross.
 At the time of dismissal the Applicant was paid five weeks in lieu of notice at the lesser rate pre the 6% increase being $5 415 which will be deducted from this amount reducing the total to $15 440 gross.
 The legislation requires the Tribunal if satisfied that the misconduct of the Applicant contributed to her dismissal to reduce the amount that would otherwise be ordered by an appropriate amount on account of the misconduct. In this matter the Applicant’s repeated misconduct directly contributed to the Respondent’s decision to dismiss her. If it were not for the poor handling procedurally by the Respondent of the Applicant’s dismissal this would not have been unfair. I think the deduction of four weeks remuneration is an appropriate amount to reduce the compensation because of the Applicant’s misconduct. Consequently $4 592 will be deducted reducing the total to $10 848 gross.
 The Respondent has raised concerns about the ordering of a significant amount of compensation on the viability of the Respondent enterprise because it is a small not-for-profit association which receives funding through government grants.
 In my view the order of magnitude of compensation to be paid to the Applicant will not adversely affect the viability of the Respondent.
 An order will be issued in conjunction with this decision for the Respondent to pay to the Applicant $10 848 gross less the applicable tax within 21 days.
G Upham of the ASU for the Applicant.
R Jones, representative for the Respondent.
Final written submissions:
Applicant, 28 September 2012.
Respondent, 2 October 2012.
1 Exhibit A2.
2 Exhibit A3.
3 Exhibit A4.
4 Print S8106 at paragraph .
5  FWAFB 1436.
6  FWAFB 5230 at paragraph .
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