DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Miss Jisu Jeong
v
Alpha Flight Services Pty Ltd T/A Alpha Flight Services
(U2016/319)

Application for relief from unfair dismissal.

[1] Miss Jisu Jeong applies under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy with respect to her dismissal by Alpha Flight Services Pty Ltd T/A Alpha Flight Services (Alpha Flight). Alpha Flight provides catering and retail services to various airlines.

[2] Ms Jeong commenced employment as a chef with Alpha Flight on 1 October 2012. In September 2014, Ms Joeng was promoted to the role of sous chef and was responsible for the supervision of other staff members. 1

[3] At the hearing on 12 May 2016, Ms Jeong was represented by Mr John George, a friend of Ms Jeong. Alpha Flight was represented by Mr Murray Procter, Solicitor of ClarkKann Lawyers. On 4 May 2016, I issued a decision [[2016] FWC 2778] granting leave for Alpha Flight to be represented by a lawyer pursuant to s.596 of the Act.

[4] Ms Jeong gave evidence on her own behalf. Evidence for Alpha Flight was given by:

● Mr Craig Cole, Unit Manager; and

● Mr Matthew Ball, HR/Administration Support.

Background

[5] Ms Jeong was summarily dismissed for a failure to comply with Alpha Flight’s Honesty, Integrity and Truthfulness Policy. Specifically, Ms Jeong was dismissed for falsifying a medical certificate provided to her by her doctor on 13 January 2016.

[6] Ms Jeong sustained an injury to her neck on or around 3 November 2015. Mr Jeong’s evidence is that the injury was sustained at work due to an increase in her workload and the amount of overtime that she had been performing. The injury was reported to Alpha Flight and to WorkCover. Ms Jeong was subsequently placed on light duties with restrictions on her lifting capacity to 2 kilograms. 2

Ms Jeong’s evidence is that shortly after making a claim of workers’ compensation, she was bullied and harassed by her manager, Mr Cole. Ms Jeong claimed that this occurred between November 2015 and early January 2016. Mr Cole denies that he bullied or harassed Ms Jeong.

Medical certificate supplied by Ms Jeong to Alpha Flight

[7] On 13 January 2016, Ms Jeong fell ill with flu-like symptoms and had a doctor attend her home. Dr. B. Patel examined Ms Jeong and diagnosed her with a viral flu. Dr. Patel provided Ms Jeong with a medical certificate declaring her unfit for work. The medical certificate presented by Ms Jeong to Alpha Flight provided as follows:

“MEDICAL CERTIFICATE
To whom it may concern

Date: 13/1/16

I certify that I have examined: Jisu Jeong

On: 13/1/16

In my opinion he/she was/is suffering from: Viral Flu

And was unfit for work/school from 14/1/16

To 17/1/16 inclusive

He/she will be able to resume work/school on 18/1/16,

Other comments (if necessary): If feeling bette (sic) can return to work earlier

...”  3

(my emphasis added)

[8] The emphasised dates above reflect the dates that were allegedly amended by Ms Jeong. It is not contested by Ms Jeong that she amended two dates. She admits to having amended:

“To 18/1/16 inclusive”

to

“To 17/1/16 inclusive”

and

“He/she will be able to resume work/school on 19/1/16”

to

“He/she will be able to resume work/school on 18/1/16”.

[9] Ms Jeong disputes that she amended the date “13/1/16” to “14/1/16”.

[10] On 14 January 2016, Ms Jeong emailed a copy of the medical certificate to Mr Ball, who then forwarded it to Mr Cole and Mr Peter Otto, Executive Chef.

[11] On 18 January 2016, Ms Jeong returned to work as she was feeling better.

Meetings held to discuss the medical certificate

[12] On 19 January 2016, Mr Ball approached Ms Jeong and invited her to have a quick chat about how she was going with her doctor appointments and physiotherapy. Ms Jeong attended the meeting with Mr Ball and Mr Cole present. At the meeting, Mr Cole raised concerns with the medical certificate produced by Ms Jeong dated 13 January 2016. Mr Ball took notes at the meeting. 4

[13] At the meeting, Mr Cole questioned Ms Jeong about whether she had made any amendments to the medical certificate. In cross examination, Ms Jeong conceded that during the meeting of 19 January 2016 she denied making any alterations to the medical certificate. 5

[14] Alpha Flight conducted another meeting on 21 January 2016 to discuss the issue of the medical certificate. The meeting was again attended by Mr Cole, Mr Ball (as note taker) and Ms Jeong.

[15] At the meeting of 21 January 2016, Mr Cole informed Ms Jeong that he had contacted Dr Patel to discuss the medical certificate and the alteration of dates to the medical certificate. Mr Cole put to Ms Jeong that he was of the view that Ms Jeong had altered the document. Ms Jeong did not make any admissions to altering the medical certificate at the meeting on 21 January 2016.

[16] During the meeting of 21 January 2016, Ms Jeong was advised by Mr Cole that as he had concluded that she had amended the medical certificate, she would be summarily dismissed for serious misconduct.

[17] At the time of the dismissal, Ms Jeong had not made any admissions to Alpha Flight in relation to making any amendments to the medical certificate.

Ms Jeong’s evidence

[18] Ms Jeong’s evidence is that during the G20 event in Brisbane in November 2014, she was working 18 hour days every day for Alpha Flight to assist with the increased workload. Ms Jeong stated that later that month she started to feel regular and sharp pains in her neck. Whilst on a holiday to Korea in September 2015, she consulted a doctor in relation to the pain she was experiencing.

[19] On 3 November 2015, Ms Jeong verbally reported the incident to the Health and Safety Officer (HSO) of Alpha Flight. On 6 November 2016, Ms Jeong attended the regular supervisors’ meeting and discussed her injury with Mr Cole and Mr Otto. Ms Jeong requested assistance with completing a formal incident report to WorkCover in relation to her neck injury.

[20] Ms Jeong’s evidence is that at the meeting of 6 November 2015, she first noticed that she was being subjected to bullying and intimidation from Alpha Flight management.

[21] Ms Jeong completed the incident report form and Alpha Flight subsequently made an appointment for Ms Jeong to attend to see a medical practitioner, Dr Hutchinson. Ms Jeong’s evidence is that Dr Hutchinson recommended that Ms Jeong be placed on ‘light duties’ with lifting restrictions of no more than 2 kilograms. In the performance of her work she was to have a break every 60 minutes.

[22] Ms Jeong stated that it was after she was placed on ‘light duties’ that she noticed that the way Alpha Flight services management treated her “changed dramatically”. Ms Jeong’s evidence is that Mr Cole would walk past her work area and hold his neck to one side and say “How’s your neck”, or “I hope you’re doing your stretches” in front of everyone. Ms Jeong claims that Mr Cole was often grinning when he said this to her.

[23] Ms Jeong further stated that Mr Cole often made her feel that he did not believe that her WorkCover case was genuine, or that she was lying.

[24] In her evidence, Ms Jeong provided further examples of bullying and harassment that she alleges that she suffered as a result of bringing a WorkCover claim. Ms Jeong’s evidence is that her mental health began to suffer and that she was depressed as a result of the treatment by Alpha Flight management.

[25] In relation to the events that led to her dismissal, Ms Jeong stated that she fell ill on 13 January 2016, and contacted the home doctor to visit her home. Ms Jeong stated that Dr Patel attended her home, examined her, and wrote a medical certificate giving her five days off work.

[26] Ms Jeong’s evidence is that she changed the period of incapacity from 18 January 2016 to 17 January 2016, together with changing the return-to-work date from 19 January 2016 to 18 January 2016, so that she could return to work one day earlier. Ms Jeong stated that she did not know this was wrong, given she wasn’t receiving any benefit out of returning to work early.

[27] Ms Jeong stated that she felt that she needed to return to work as early as practicable so that she didn’t experience further alleged bullying and intimidation for taking time off work.

[28] With respect to the other date that had been changed, Ms Jeong stated that Dr Patel changed that date from 13 January 2016 to 14 January 2016 in her presence. 6 With regard to that date change, Ms Jeong stated:

“Dr Patel changed the date on the 14th was when she write on it 13th, I questioned her.  I already finished work, so I won't need time off from today and in some reason she changed that right in front of my eyes to 14th to have off.” 7

[29] On 19 January 2016, Ms Jeong presented for work. At approximately 10:30am she was advised by Mr Ball to attend a meeting with him and Mr Cole. Ms Jeong’s evidence is that Mr Ball did not tell her what the meeting was about or ask whether she needed a support person.

[30] Ms Jeong contends that during the meeting she was made to sit while Mr Cole stood over her, which made her feel threatened and intimidated. Mr Cole explained to Ms Jeong that he had concerns about the medical certificate and that he felt the dates had been altered.

[31] Ms Jeong stated to Mr Cole that Dr. Patel had given her too many days off work and it was Dr. Patel who had altered the medical certificate. Ms Jeong did not admit to making changes to the dates on the medical certificate.

[32] Ms Jeong stated that many other things were discussed at the meeting, including what she took to be a threat made by Mr Cole that WorkCover was reviewing her case, and if the claim was not found to be genuine, she may have to repay the fees that had been paid for medical treatment to-date.

[33] On 21 January 2016, Ms Jeong was advised by Mr Ball that she had to attend a meeting with himself and Mr Cole to revisit the discussions that were had on 19 January 2016.

[34] Ms Jeong asked Mr Cole whether she could have a representative present to attend the meeting. Mr Cole advised Ms Jeong that she could choose anyone from within the building to attend as a support person. Ms Jeong stated that she did not want a colleague to represent her because she felt that none of her colleagues would want to represent her for fear of their own job. Ms Jeong further stated that she did not think any of her colleagues would be experienced enough to handle the situation. Ms Jeong’s evidence is that Mr Cole refused to allow her to have a representative from outside Alpha Flight.

[35] Ms Jeong stated that she was advised during the meeting that Mr Cole had contacted Dr. Patel by telephone to discuss the medical certificate. Ms Jeong stated that Mr Cole advised her that Dr. Patel had advised him that she had not changed any of the dates on the medical certificate.

[36] Ms Jeong stated that Mr Cole then informed her that because she had made changes to the dates on the medical certificate, her employment was terminated.

[37] Ms Jeong contends that she again asked Mr Cole if she could have a representative at the meeting. She says that Mr Cole responded that she could have anyone present who worked in the building. Ms Jeong says that she responded by saying she would like a support person from outside of the organisation. That person could be available on the telephone. Mr Cole denied the request.

[38] Ms Jeong stated that she had advised Mr Cole that if Alpha Flight did not accept the medical certificate, Alpha Flight could choose not to pay for the sick leave that she had taken. Her evidence is that she said to Mr Cole, “You do not have to fire me.” Ms Jeong said that she was asked to return her keys and informed that she would be contacted the next day in relation to her final payment.

[39] Ms Jeong’s evidence is that she did not receive any payment in lieu of notice on termination. Following the termination of her employment, Ms Jeong says that she experienced depression, stress, and had difficulty sleeping. She claims that she still has psychological issues resulting from the alleged workplace bullying.

[40] Ms Jeong has been unable to secure employment in the catering industry due to the injury to her neck and lifting restrictions of a maximum of 10 kilograms.

[41] It is Ms Jeong’s evidence that she would have ended her employment with Alpha Flight in late-May 2016 to relocate to Sydney with her partner.

Alpha Flight’s evidence

[42] The evidence of Alpha Flight is that the Brisbane unit operates on a 24/7 basis, with approximately 304 employees located in Brisbane. Ms Jeong supervised five to six staff.

[43] Mr Cole denied all of the allegations of bullying conduct alleged by Ms Jeong.

[44] On 14 January 2016, Mr Cole reviewed the medical certificate supplied by Ms Jeong. Mr Cole’s evidence is:

“When I looked at the certificate, I noticed that it looked unusual and was not what we normally saw. The aspects that stood out to me were the changes in the dates (Because they were not initialled) and the fact that the certificate stated “if feeling bette [sic] can return earlier”. I hadn’t seen a statement to that effect included on a medical certificate before, and it was particularly strange to me.

It was also strange that the date Jisu was seen (said to be 13 January 2016) and the date that it is said Jisu was unfit for work (14 January 2016) were different. Normally, the date that the patient is seen and the date that they are unfit for work is the same day or, in some cases, the date the patient is seen is a day or couple of days after they are unfit for work (i.e. a retrospective medical certificate). I don’t think I have ever seen a prospective medical certificate.” 8

[45] On 15 January 2016, Mr Cole emailed the home doctor service and requested that Dr. Patel contact him to discuss the medical certificate that had been provided. Mr Cole attached to the email the medical certificate.

[46] On 18 January 2016 9, Dr. Patel contacted Mr Cole by telephone. A discussion was held relevant to the medical certificate supplied to Ms Jeong. According to Mr Cole’s evidence, Dr. Patel stated that if there had been one date changed, she would have put a line through it and initialled it. Dr. Patel denied having made the three or four changes that Mr Cole described to her. It is Mr Cole’s evidence that Dr. Patel said that if there numerous changes to be made to a medical certificate, she could simply write a new medical certificate as it took her a short time to do so.

[47] Mr Cole consulted with the Human Resources department of Alpha Flight, who recommended speaking with Ms Jeong to understand her version of events.

[48] Mr Cole stated that when he met with Ms Jeong on 19 January 2016, the purpose of the meeting was to discuss the medical certificate – “I just wanted to get to the bottom of what had happened with the medical certificate” 10 – and he wanted to find out how she was progressing with her injury.

[49] Mr Ball attended the meeting between Mr Cole and Ms Jeong. Mr Ball made extensive notes of the meeting. A summary of the meeting notes detail that the following was discussed:

(a) Mr Cole inquired if Ms Jeong had been given a cortisone injection the day before;

(b) The medical certificate (the full detail is reproduced at [8];

(c) Rostered hours and a direction for Ms Jeong to speak with Mr Otto regarding her hours of work;

(d) Ms Jeong’s return to work on light duties. “Craig advised Jisu that things like this Work Cover investigate and if they find issues they will close the claim and then the individual is responsible for the costs. Craig added that Work Cover do investigate most claims and that he was just providing her with the information.”

(e) Pain levels and the amount of cortisone injections a person can have; and

(f) Mr Cole to call the doctor to confirm the medical certificate and the dates.

[50] Mr Ball’s notes reflect the following was discussed in relation to the medical certificate supplied by Ms Jeong:

“Craig advised Jisu that we had an issue with her medical certificate and the dates on it which had been changed. Jisu said in response that the doctor had told her to return to work on 19 January 2016 but Jisu had advised the doctor that it was too long and the doctor then wrote over the dates in front of her. Jisu then said that we can call the doctor and confirm with her. Craig advised that we had been in contact with the doctor. Jisu asked if the doctor had another copy of the certificates as this was wrong. Craig advised Jisu that we would speak to her again as we had no reason not to believe Jisu was telling the truth. Jisu said she had no reason to lie.”

[51] A further meeting was held with Ms Jeong on 21 January 2016 to discuss the medical certificate and the changes made to it. While I note that it is Mr Cole’s evidence that he had a telephone discussion with Dr. Patel on 18 January 2016, his recollection of the conversation recorded in [47], this cannot be the case. It is clear that Mr Cole’s conversation with Dr. Patel occurred after the meeting held with Ms Jeong on 19 January 2016. In all likelihood the conversation between Mr Cole and Dr. Patel occurred subsequent to the meeting held with Ms Jeong on 19 January 2016, or it occurred on 20 or 21 January 2016.

[52] Where it is recorded in Mr Ball’s notes, “Craig advised that we had been in contact with the doctor”, I accept that is in reference to Mr Cole’s email communication with the home doctor practice.

[53] On 21 January 2016, Mr Cole approached Mr Ball at approximately 3.30pm and asked him to organise a meeting with Ms Jeong to discuss the issue of the medical certificate. A meeting occurred between Mr Cole, Mr Ball and Ms Jeong at 4.00pm.

[54] Mr Ball contends:

“I recall that we did not ask Jisu if she wanted a support person prior to going into the meeting but when Jisu asked for a support person whilst in the meeting, we offered her the opportunity to ask anyone in the building to be her support person. At any given time, union representatives and approximately 120 staff are in the building.” 11

[55] Mr Ball’s meeting notes record the medical certificate was discussed in the following way:

“Craig advised Jisu that he had spoken to the doctor as well as the medical clinic and the doctor confirms that she did not make any changes and that if she had of made a single change, she would strike a line through the error and initial next to it. The doctor also added that if there were several changes she would have discarded it and re-wrote a new certificate rather than giving out a certificate with errors all over it as she understands that it is a legal document. Jisu said in response that she had also spoken to the doctor and was conducting her own investigation. She added that the doctor was not telling the truth as she saw her change the dates on the certificate in front of her. She additionally said that the doctor does not have a second copy to verify the original medical certificate. Craig advised Jisu that the doctor keeps a log of all of the house calls that she completes and if anything different happens on a visit, she notes it in her log book. For example, if she amends a medical certificate.

……..

……..

Craig advised Jisu that based on what the doctor has said and after discussing with HR at Head Office, we would be finishing her employment today. Jisu asked for clarification what was meant by “finishing her employment.” Craig said in response that she was being summarily dismissed and that her employment with Alpha Flight Services would cease this afternoon due to serious misconduct.”

[56] The notes reflect that the meeting continued with Ms Jeong stating that she did not completely understand why her employment was being terminated. Mr Cole responded that Ms Jeong had falsified a legal document.

[57] Ms Jeong’s WorkCover claim was discussed. When Ms Jeong inquired as to her termination payment, Mr Cole informed her that she was being summarily dismissed and would not be paid wages in lieu of notice, but she would be paid outstanding leave entitlements.

[58] Ms Jeong asked if Mr Cole could explain the termination of employment and the reasons for the termination of employment to one additional person, as she did not fully understand. In reply, Mr Cole said that Ms Jeong did understand, as the questions she had been asking indicated that she did understand that her employment had ended.

[59] Ms Jeong stated that she wanted a close friend to be a support person in the discussion. Mr Cole informed Ms Jeong that she could choose anyone from within the building to be her support person. In reply, Ms Jeong said that she wanted a person who could assist her. Mr Cole responded that a support person does not attend a meeting to make comments for the employee, but is there to act as a witness for the employee, in the way that Mr Ball was a witness and simply taking notes.

[60] Ms Jeong said to Mr Cole that she did not appreciate the discussion on 19 January 2016 where Mr Cole had threatened that WorkCover would be looking in to her workers’ compensation claim. She informed Mr Cole that she had spoken with the Alpha Flight case manager about what Mr Cole had said, and the case manager had disagreed with Mr Cole.

[61] Mr Cole responded that he was aware Ms Jeong had held discussions with the case manager, and he held genuine concerns for her that she may be receiving too many cortisone injections [into the bone]. Ms Jeong stated that she had found his advice very intimidating, and she had discussed this with the doctor who had informed her that the number of injections she was receiving for the injury was suitable. In any event, she was receiving cortisone injections into the muscle, and not to the bone. Mr Cole stated that it was a fact that you can only receive three cortisone injections into the bone and he had not made the statements on 19 January 2016 in an intimidating way.

[62] The termination letter dated 21 January 2016, and issued to Ms Jeong states (relevantly):

“I refer to our meeting on 21 January 2016………

You responded that you had not changed the medical certificate and that the doctor had changed the certificate in your presence.

As discussed during the meeting, your behaviour and conduct:

● Was wilful or deliberate behaviour that is inconsistent with the continuation of your contract or employment.

● Was conduct in the course of your employment engaging in fraud, and in the circumstances your continued employment during a notice period would be unreasonable.

Given the opportunity to review these breaches and your responses, we consider that your actions constitute wilful misconduct warranting summary dismissal……”

Cross-examination of Ms Jeong

[63] During cross-examination, Ms Jeong confirmed that in her duties she was required to complete in hand-writing various food preparation logs/forms on a daily basis. The food preparation logs are relied upon in the event of plane travellers claiming to be unwell as a result of the food consumed in-flight. Alpha Flight can then review the food preparation to determine if there had been non-compliance by any person with respect to how the food is handled and at relevant temperatures.

[64] Ms Jeong confirmed that she had completed a questionnaire in August 2013 regarding food handling. The questionnaire asked, and was answered by Ms Jeong:

Q. What must you do if you feel unwell:

(a) At work

(b) Before you come to work

A. Report supervisor / go home

Call supervisor let them know

Not coming back until Dr. confirms clearance

[65] Another work document completed by Ms Jeong in April 2014 confirms that Ms Jeong was aware that there are a number of illnesses that would prevent an employee from attending for work in a food environment. Ms Jeong was asked to nominate three illnesses. She answered: vomiting, nausea, diarrhoea.

[66] The form completed by Ms Jeong asks: “You are feeling better after suffering from one of the illnesses you have listed in Q1, can you just turn up to work and start your shift?” Ms Jeong answered, “No. Get Dr. clearance.”

[67] When questioned in relation to the meeting of 19 January 2016, Ms Jeong was asked the following:

Mr Proctor: So I just wanted to be clear here. You left Craig Cole with the clear impression that Dr Patel had changed the dates on the medical certificate. That you had not changed the dates. Is that correct?

Ms Jeong: He could take it as that. I denied it that time, yes. 12

Mr Proctor: When you say that you denied it, but you’ve accepted that you changed it, do you accept that you were being dishonest with Craig?

Ms Jeong: Yes, you could put it like that way, yes.  13

[68] During the cross-examination of Ms Jeong, I asked Mr Proctor if Alpha Flight conceded that Dr. Patel might have made the change to the medical certificate reflecting the start of the period of incapacity from “13/1/16” to “14/1/16”. Mr Proctor stated, “We don’t make the allegation that it was changed from the 13^th to the 14^th by Ms Jeong……Someone changed it. We don’t know. It’s not a concession that the doctor made it.”  14

[69] It is Ms Jeong’s evidence in cross-examination that during the meeting of 21 January 2016, Mr Cole stated that he had spoken with Dr. Patel, and Dr. Patel had denied making any changes at all to the medical certificate. Ms Jeong’s evidence is that she had not made the change from “13/1/16” to “14/1/16”, and that Dr. Patel had, and that is what she was trying to explain, to no avail. She stated that Mr Cole kept informing her that Dr. Patel had not made any changes at all, and that they were continuing to talk in circles. She stated that she “couldn’t” explain to Mr Cole the changes she had made to the medical certificate. 15

Re-examination of Ms Jeong

[70] Following cross-examination, Mr George asked a number of questions of Ms Jeong. Mr George asked Ms Jeong why she had changed dates on the medical certificate that she had been issued. Ms Jeong answered:

“Base line was I felt already had so much pressure and been bullied since I go the work claim injury and every time when I had time off order by doctor or when I had light duties, they been the employer’s behaviour was getting each time more worse and worse and sometime they make smart comment on it. “So you feel better now?” kind of thing in the one of that – that’s why I feel pressure.” 16

[71] Ms Jeong’s concern is that she was not afforded a support person of her choice during the meeting of 21 January 2016. When asked by me as to when she requested a support person to attend the meeting, Ms Jeong was not able to be clear as to when she made that request. She was unsure if she had made the request at the commencement of the meeting, or after she had been informed she had been dismissed. 17

Evidence of Mr Cole

[72] In evidence-in-chief, Mr Cole was asked if he had been standing during the meeting of 19 January 2016. Mr Cole explained that his office is not large, and there are only two chairs available. Mr Cole explained that during the meeting of 19 January 2016, he was sitting on the edge of his table. Mr Ball was standing in the corner behind the closed door.

[73] Mr Cole’s evidence is that during the meeting of 21 January 2016, Ms Jeong was notified of the termination of her employment, and after she had been informed of that decision, she sought to have a support person at the meeting.

[74] After Mr Cole had been cross-examined, I asked him why he had refused Ms Jeong’s request for a support person to be dialled into the meeting. Mr Cole answered, “My understanding of it was, that if someone was going to have a support person for a matter like this, that it had to be from within the business………Now I know it’s not to be the case.”

[75] I asked Mr Cole questions as to why, during the meeting of 19 January 2016, he had been suggesting to Ms Jeong that her workers’ compensation claim might be reviewed and she might have to pay for her medical costs. The following exchange occurred:

“Why were you having this sort of conversation with Ms Jeong about WorkCover investigating and closing claims, being responsible for costs?---It was just part of the general conversation.  I also spoke to her about - she mentioned that she was going for another cortisone injection and at that stage my understanding was that you could only have three, but then I also said to Jisu that she was on office based duties at the time, which was on the computer.  If she wanted to, she could use the computer and checkup, if that was the case.  I also advised her to talk to her GP and her GP actually came back in his next assessment and said that it's because of the location of the injection that there's no limit.  It was just part of the general conversation.

With the WorkCover conversation, the contemporaneous note is that you said if WorkCover investigate and they find issues, they will close the claim and then the individual is responsible for the costs.  What point were you making to her?---It was just that.  It was just conversation.

Ms Jeong was being paid wages by the company, she wasn't being topped up with her weekly compensation, was she?  She was on full wages?---Full wages but light duties.

Light duties?---So office based duties.

With a lifting restriction of 2 kilos, is that right?  Her medical costs were being covered?---And I think some physio, I think.

Some physio, okay.  What WorkCover investigation do you think would have occurred for you to say that to her?---From experience that once a claim gets to a certain point, it gets to if there is progression or not, and again, I'm not involved in this part of managing the claim, we just see it from time to time within the business and once it gets to that stage, WorkCover will begin an investigation on whether the claim is going to continue or whether they are going to close the case.  The person is involved in an IME, an independent medical examination and then sort of WorkCover go down whatever road they choose to go down from there.

That would be true, wouldn't it, once the lifting restrictions were not in place.  In January she has a lifting restriction of two kilos?---Yes.

This conversation is being had with her; I'm trying to understand for what purpose?---It was purely, like it says in here, it was just meant to be an informal conversation. She had been away sick; we had a medical certificate that we weren't quite sure of.  If someone is away sick and they have a WorkCover claim, we make a point of catching up with them because we need to find out if it's related to the injury or if it's just sickness.  The conversation lasted maybe 15 to 20 minutes.  It was just part of a general overall conversation.

Yes I accept that you'd be in a position to have a conversation to inquire about her wellbeing to ask her what pain she was experiencing.  Are you intimidating her when you discuss a WorkCover investigation?---It wasn't mean to be intimidating.

Do you accept reading the notes made by Mr Ball that that's how it might appear?  Yes, all right.” 18

Evidence of Mr Ball

[76] In evidence-in-chief, Mr Ball was asked where each person was seated or standing during the meeting of 19 January 2016. Mr Ball answered, “….it was in Craig’s office, basically with Jisu seated in the corner. Craig was sitting on his desk and I was sort of standing and leaning against the wall in the corner as well, on the other corner.”

[77] Mr Ball disagreed with the suggestion that Mr Cole was standing over Ms Jeong or that he had been intimidating towards Ms Jeong.

[78] In cross-examination, Mr Ball conceded that when Mr Cole was sitting on the desk during the meeting of 19 January 2016, he would have been at a greater height than Ms Jeong seated in a chair. Mr Ball estimated that Mr Cole was approximately one metre away from Ms Jeong.

[79] When questioned by Mr George as to Ms Jeong’s entitlement to have a support person present, Mr Ball answered, “I’d say she didn’t ask for a support person present throughout the process and had she wished for one to be present, then we would have had no issue with it.”

[80] When asked by me if Ms Jeong had the opportunity to explain the alteration to the medical certificate during the meeting of 21 January 2016, Mr Ball answered, “…I think Craig provided her the opportunity to explain it, not only just in the first meeting, but at the start of the second meeting as well, but she didn’t take that opportunity to mention it and I don’t think that he said it in an intimidating way or in such a way that she couldn’t say that….”

[81] Mr Ball stated that during the meeting of 21 January 2016, Ms Jeong was afforded the opportunity to say that she had made changes to the medical certificate. 19

Submissions

[82] Mr George submitted that Ms Jeong accepts that she did the wrong thing by changing the dates on the medical certificate, but this does not warrant termination of her employment. It was submitted that Ms Jeong could have been disciplined, including being given a formal warning or demotion.

[83] Ms Jeong made the alteration to the medical certificate in order to return to work earlier than she was entitled to; she did not obtain any personal benefit from returning to work earlier.

[84] On the basis that Ms Jeong’s employment was terminated for misconduct, she would have needed to have demonstrated that she had undertaken the act of making the changes to the medical certificate wilfully or for a ‘wrong intention’. While Ms Jeong may have erred in her judgment, she did not have any wrong intentions. She wanted to return to work early.

[85] Mr George contended that Ms Jeong’s employment was terminated for another reason; Alpha Flight wanted to move Ms Jeong on as she had an ongoing medical condition due to her workers’ compensation injury. 20

[86] While Ms Jeong was afforded an opportunity to justify her conduct, she failed to do so because she was afraid of the consequences that may result from her admission of guilt. She alleged that she had been subject to bullying and intimidation.

[87] Mr George submitted that I should have regard to the fact that Ms Jeong is a Korean national with English as a second language. She was being interviewed in a small room with two men, and she wasn’t offered the opportunity of a support person. Ms Jeong’s previous work history was largely satisfactory.

[88] Alpha Flight services did not suffer from Ms Jeong’s actions; in fact she returned to work one day early.

[89] It is Alpha Flight’s contention that it is a well-settled proposition that an employee needs to be honest with their employer during an investigation, and a failure to be honest with their employer during an investigation supports a valid ground for dismissal. 21

[90] The relationship of trust and confidence between Ms Jeong and Alpha Flight was destroyed by the dishonest alteration of the medical certificate and Ms Jeong’s dishonesty in the investigation. 22

[91] In Tokoda v Westpac Banking Corporation [2012] FWA 1262, Deegan C found that an employee who had falsified a medical certificate, denied falsifying it, and later made admissions was not unfairly dismissed. The Commissioner found the falsification of a medical certificate and the employee’s denial constituted a valid reason for the termination of employment.

[92] In the above case, the employee was employed in a banking corporation, and responsible for important banking records. Deegan C found that because of the falsification of the medical certificate and the subsequent dishonesty when questioned about it, there had been a “concomitant destruction of trust between the employer and the Applicant.” 23

[93] It is Alpha Flight’s contention that Ms Jeong’s responsibility in ensuring that hand-written food records are complete and accurate in accordance with food hygiene standards, in light of her dishonest conduct, would result in the finding that there had been a valid reason for the dismissal.

[94] Ms Jeong had read and understood the Alpha Flight employee handbook. It states:

“Any acts of dishonesty will lead to disciplinary actions up to and including dismissal.”

and

“Alpha Flight Services may immediately termination your employment at any time without prior notice if you commit an act of serious and wilful misconduct, including but not limited to-

………..

any act of dishonesty,

falsification of records.”

[95] Ms Jeong had an opportunity on 19 January 2016 and again on 21 January 2016 to make admissions about the changes that she had made to the medical certificate. In the meeting of 21 January 2016, it is the evidence of all of the witnesses that Mr Cole said that the conversation was “going around in circles.” There must have been multiple opportunities for Ms Jeong to “jump in and admit her lie.” 24

[96] It is Alpha Flight’s submission that even if Ms Jeong had admitted during either of the meetings that she had made the alterations to the medical certificate, the decision in Tokoda 25 supports a finding that making changes to such an important document would still constitute a valid reason for the dismissal.

[97] It is Alpha Flight’s submission that Ms Jeong’s English was adequate and she is competent with spoken and written English not to have been in a position to adequately respond.

[98] Alpha Flight rejects the submission that because she was not informed before the meetings of 19 and 21 September 2016 that the medical certificate would be discussed that it is unfair. Alpha Flight submits that what was being discussed was not factually complex; it was simply, did Ms Jeong make changes to the medical certificate?

[99] Alpha Flight denies that Ms Jeong was at any disadvantage by being in a small room with two men. It is denied that “men forced a lady into a corner and intimidated her into a response.” 26

[100] While Ms Jeong was not offered a support person at the commencement of the meeting of 21 January 2016, the Act only requires an employer to ensure that there has not been an unreasonable refusal to allow a support person in any matter relating to a dismissal. Alpha Flight contends that in the absence of a specific request of a specific person, the conduct of Alpha Flight was not an unreasonable refusal. Ms Jeong had not named who she wished to attend the meeting with her, and did not provide details of how long it would take for that person to attend the meeting. Mr Cole offered to Ms Jeong anybody else who was available within the building, including union representatives.

[101] It is the submission of Alpha Flight that Ms Jeong only now accepts that changing the medical certificate was wrong because her employment has been terminated. It is submitted that she does not have the insight that her actions damage the trust that exists between an employer and employee, or because an important document should not be tampered with.

[102] In reply, Mr George sought to differentiate Tokoda. In that instance, the employee had falsified the entire medical certificate and had not been examined by a doctor, and had done so for her advantage. Mr George submits that this is different to Ms Jeong’s circumstances.

Protection from Unfair Dismissal

[103] Section 382 of the Act sets out the circumstances that must exist for Ms Jeong to be protected from unfair dismissal.

[104] There is no dispute, and I am satisfied, that Ms Jeong was protected from unfair dismissal.

[105] It is not disputed that the dismissal was at the initiative of Alpha Flight.

Harsh, unjust or unreasonable

[106] I must consider whether I am satisfied the dismissal was harsh, unjust or unreasonable. The criteria I must take into account when assessing whether the dismissal was harsh, unjust or unreasonable are set out at s.387 of the Act:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC 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.”

[107] The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 at 465 by McHugh and Gummow JJ as follows:

“.... It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”

[108] I am under a duty to consider each of these criteria in reaching my conclusion. 27

[109] I will now consider each of the criteria at s.387 of the Act separately.

Valid reason - s.387(a)

[110] Alpha Flight must have a valid reason for the dismissal of Ms Jeong, although it need not be the reason given to the applicant at the time of the dismissal.²⁸ The reasons should be “sound, defensible and well founded”²⁹ and should not be “capricious, fanciful, spiteful or prejudiced.”³⁰

[111] The reason Alpha Flight gave for the dismissal of Ms Jeong was that she had made alterations to the medical certificate supplied to the employer, and then repeatedly denied this conduct when questioned. It is Alpha Flight’s contention that Ms Jeong engaged in misconduct, serious in nature as to result in a decision to terminate the employment with immediate effect.

[112] Ms Jeong admits to having falsified the medical certificate issued to her. The alterations made to the certificate were made for the purpose of returning to work earlier than the medical certificate allowed. Ms Jeong cites alleged bullying and intimidation as the reason for making the alterations, and then subsequently not making relevant admissions.

[113] While Ms Jeong’s conduct in making the alterations to the medical certificate and returning to work earlier than she was authorised to do so was not ultimately for her benefit, I find that Ms Jeong engaged in misconduct.

[114] It is important that employers can expect that when they are provided with medical evidence of an employee’s incapacity, it is a document free from amendments made by the employee. It was not Ms Jeong’s document to tamper with. It was a document made by Dr. Patel, and it is signed by Dr. Patel as a true account of Ms Jeong’s health.

[115] Any alterations made by an employee to a medical certificate provided by a doctor have the effect of undermining the confidence employers can have in such important documents.

[116] The notes of the meeting of 19 January 2016 make it clear that Ms Jeong had every opportunity to reveal her conduct, and she chose not to do so. Ms Jeong made a statement to the effect, “I have no reason to lie.” In fact, Ms Jeong did lie.

[117] Similarly, in the meeting of 21 January 2016, it should have been apparent to Ms Jeong that Mr Cole knew that she had made various changes to the medical certificate. Mr Cole revealed that he had engaged in a conversation with Dr. Patel, and Dr. Patel disputed making changes to the medical certificate.

[118] While it appears that Ms Jeong was fixated with the (likely) change by Dr. Patel to the date “13/1/16” to “14/1/16”, it was incumbent on Ms Jeong to reveal the other changes made by her. She did not do so, and continued her dishonest conduct.

[119] Ms Jeong’s failure to admit the changes to the medical certificate in the meetings of 19 and 21 January 2016 constitute misconduct.

Consideration

[120] Having determined that Ms Jeong engaged in misconduct with respect to making alterations to the medical certificate and then being dishonest in the meetings of 19 and 21 January 2016, I find that there was a valid reason for the dismissal of Ms Jeong.

Notification of the valid reason - s.387(b)

[121] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made,³¹ in explicit terms³² and in plain and clear terms.³³ In Crozier v Palazzo Corporation Pty Ltd³⁴ a Full Bench of the Australian Industrial Relations Commission dealing with similar provision of the Workplace Relations FW Act 1996 stated the following:

“[73] As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.”³⁵

[122] Ms Jeong concluded the meeting of 19 January 2016 with an awareness that Mr Cole was going to undertake further inquiries. She would have been well aware that those further inquiries with Dr. Patel would have resulted in Alpha Flight confirming that Dr. Patel had not made the changes to the medical certificate that had been made by Ms Jeong.

[123] When Ms Jeong participated in the meeting of 21 January 2016, and continued with the account of how the medical certificate had been altered, she was not being truthful. Ms Jeong’s response, with the knowledge that Mr Cole had available to him resulted in Mr Cole concluding that she was not telling the truth.

[124] A decision to terminate her employment was then made taking into consideration Ms Jeong’s response. Mr Cole informed Ms Jeong that her employment was being summarily dismissed.

[125] I am not satisfied that Ms Jeong was expressly informed that the answers provided by her in the meeting of 21 January 2016 would be used to determine whether her employment would continue. That is, however, not the test required in s.387(b). It is certainly best-practice to let an employee know that the answers provided in an investigation will be used to determine if termination is being considered by the employer.

[126] I am satisfied that the decision to terminate Ms Jeong’s employment was not made prior to the meeting of 21 January 2016.

[127] I find that Ms Jeong was informed that due to falsification of the medical certificate and her dishonesty during the meetings of 19 and 21 January 2016, her employment was terminated. Accordingly, I find that Ms Jeong was notified of the reason for the dismissal prior to the decision to terminate her employment.

Opportunity to respond - s.387(c)

[128] An employee protected from unfair dismissal must be provided with an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the person. This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality.³⁶

[129] Ms Jeong was given an opportunity during the meetings of 19 and 21 January 2016 to make admissions in relation to the alteration of the medical certificates.

[130] While Ms Jeong states that she was intimidated during the meetings, due to the close proximity of Mr Cole, and his further questioning, I do find that she was given an adequate opportunity to respond.

[131] I do not accept that during the meeting of 21 January 2016, Ms Jeong did not have an opportunity to make admissions.

[132] I do have the following to say. Mr Cole’s conduct in sitting on the table (presumably with one foot on the ground while sitting at the edge of the table) while Ms Jeong was seated is distasteful. Mr Cole ought to be discouraged from engaging in this kind of behaviour. Two chairs are provided in his small office and a manager should make use of chairs to ensure an employee does not feel intimidated by a manger’s physical presence.

[133] Even in a scenario of Mr Cole sitting while Ms Jeong is seated, and Mr Cole has his back to Mr Ball, this should not matter. Mr Ball’s attendance is as a note-taker. Mr Cole should have been questioning Ms Jeong from an equal physical level.

[134] I find that Ms Jeong was given an opportunity to respond to the reason for the dismissal.

Unreasonable refusal by the employer to allow a support person - s.387(d)

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

[136] I find that Ms Jeong requested a support person to be present during the discussion on 21 January 2016, but only after she had been informed that her employment was terminated.

[137] The legislative test is not limited to discussions held only before the decision to terminate the employment. The test is, “…to assist at any discussions relating to dismissal.”

[138] Upon learning that her employment had been terminated, there was further discussion regarding Ms Jeong’s workers’ compensation claim and her final termination monies. Ms Jeong initiated these discussions by asking questions in relation to the effect her termination might have on her workers’ compensation, and also what entitlement she had to termination payments.

[139] Mr Ball’s notes state, “Jisu asked if Craig could explain this to one more person as she did not fully understand.” When Mr Cole responded that he did consider that she understood her employment had been terminated because of the questions she was then asking, Ms Jeong advised that she wanted a close friend to come in as her support person.

[140] While I accept that the termination had already occurred, and any support from a support person would have been of assistance to Ms Jeong, it would have had no bearing on the decision to terminate Ms Jeong’s employment. The decision had been made and on the evidence, would not have been reversed.

[141] Strictly interpreting s.387(d), I consider Alpha Flight’s refusal to allow Ms Jeong to telephone her preferred support person does constitute an unreasonable refusal by the employer to allow a support person. The time taken to allow a conversation with Ms Jeong’s support person would have been no greater than seeking out a support person within the building. On Mr Cole’s evidence at, he acknowledges that Ms Jeong was entitled to have with her a support person of her choosing.

[142] I find that Alpha Flight did unreasonably refuse to allow Ms Jeong to have a support person present at discussions relating to the dismissal, noting that the request for a support person was made following the decision to terminate her employment.

Warnings regarding unsatisfactory performance - s.387(e)

[143] Where an employee protected from unfair dismissal is dismissed for the reason of unsatisfactory performance, the employer should warn the employer about the unsatisfactory performance before the dismissal. Unsatisfactory performance is more likely to relate to an employee’s capacity than their conduct.³⁷

[144] In this case, Ms Jeong’s dismissal was on the basis of misconduct, not unsatisfactory performance, so the issue of prior warning does not arise.

Impact of the size of the Respondent on procedures followed - s.387(f)

[145] Alpha Flight is a reasonably large employer with a dedicated human resources function.

[146] I find that the size of Alpha Flight’s enterprise did not impact on the procedures following in effecting the dismissal.

[147] This is a neutral consideration in determining whether the termination of Ms Jeong’s employment was harsh, unjust or unreasonable.

Absence of dedicated human resources management specialist/expertise on procedures followed - s.387(g)

[148] Alpha Flight has dedicated human resources personnel.

[149] This is a neutral consideration in determining whether the termination of Ms Jeong’s employment was harsh, unjust or unreasonable.

Other relevant matters - s.387(h)

[150] Section 387(h) provides the Commission with a broad scope to consider any other matters it considers relevant. I consider the following matters to be relevant to the determination of whether the dismissal of the Ms Jeong was harsh, unjust or unreasonable:

Ms Jeong’s workers’ compensation claim

[151] I conclude that Mr Cole was genuinely interested in Ms Jeong’s injury, sustained in the course of her employment. Mr Cole denies that he bullied and harassed Ms Jeong in relation to the injury that she was suffering. I am unable to conclude if Mr Cole ‘grinned’ at Ms Jeong on the various occasions he had walked past her in the workplace and inquired about her condition.

[152] I am satisfied that the meeting held on 19 January 2016 was an appropriate forum to make inquiries into Ms Jeong’s condition, given she had just been off work for a period of time and was performing light duties on her return.

[153] I do, however, consider that Mr Cole was overbearing in his insistence that Ms Jeong should make inquiries regarding the number of cortisone injections she could safely have over a period of time. Mr Cole is not medically qualified, and I appreciate that he thought that he was offering genuine assistance to Ms Jeong, but he was incorrect and unhelpful.

[154] I am of the view that Mr Cole paid unnecessary and unhelpful attention to Ms Jeong’s workers’ compensation claim. His statements to Ms Jeong that her claim was likely to be reviewed, and her claim then potentially closed, certainly reeks of intimidation. Mr Cole agreed when questioned by me that his concern with Ms Jeong’s claim and the questions posed of Ms Jeong could be interpreted as intimidation.

[155] This conversation occurred during the meeting of 19 January 2016, subsequent to the period when Ms Jeong had already been untruthful with respect to the changes made to the medical certificate supplied by her. If the workers’ compensation claim discussion had occurred prior to the discussion in relation to the medical certificate, I am likely to find that Mr Cole’s intimidation of Ms Jeong had substantial bearing on the answers given by her regarding the alteration to the medical certificate.

[156] The workers’ compensation claim discussion occurred after Ms Jeong’s dishonesty, and accordingly, I do not give it the same weight that I would give it had it occurred beforehand.

Ms Jeong’s period of service

[157] In Sexton v Pacific National (ACT) Pty Ltd³⁸, Vice President Lawler noted:

“Relevantly advanced age and long service can render harsh a termination that would not be harsh in the case of identical conduct by a younger person with relatively short service. Nevertheless, age and length of service simply remain a factor to be taken to account in considering whether the termination was harsh, unjust or unreasonable and in applying the principle of a “fair go all round”.”

[158] Ms Jeong had served just over three years with Alpha Flight. This is not an insubstantial period of time, nor is it a very long period of time. Ms Jeong’s evidence is that she would have terminated her employment in late May 2016 to relocate to Sydney with her partner.

Ms Jeong’s employment record

[159] Prior to the meetings of 19 and 21 January 2016, Ms Jeong’s employment with Alpha Flight had been largely satisfactory.

Serious misconduct

[160] In terminating Ms Jeong’s employment, Alpha Flight described Ms Jeong’s offence of altering the medical certificate and being dishonest when questioned in relation to that as constituting serious misconduct. Ms Jeong’s employment was summarily dismissed.

[161] An authority of a Full Bench of this Commission has determined that it is not necessary to make a finding as to whether misconduct of an employee fits the definition of serious misconduct that is often quoted in s.394 applications for unfair dismissal.

[162] The authority referred to is O'Connell v Wesfarmers Kleenheat Gas Pty Ltd [2015] FWCFB 8205 (18 December 2015). In O’Connell, the Full Bench heard an appeal of a single member of the Commission, and a consideration of that member with respect to a dismissal and whether it constituted serious misconduct or not.

[163] The Full Bench stated the following about the single member decision:

[22] We make one observation about the Decision. In his consideration under s.387(a) of the FW Act as to whether there was a valid reason for the dismissal, the Commissioner made reference to “[s]ummary dismissal for misconduct in employment” and referred to the definition of “serious misconduct” in reg.1.07 of the Fair Work Regulations 2013. This was, with respect, a distraction. As was said by the Full Bench in Sharp v BCS Infrastructure Support Pty Limited³⁹:

“[32] … It is certainly well established that, for the purposes of s.387(a), it is not necessary to demonstrate misconduct sufficiently serious to justify summary dismissal on the part of the employee in order to demonstrate that there was a valid reason for the employee’s dismissal (although established misconduct of this nature would undoubtedly be sufficient to constitute a valid reason).⁴⁰  Nor is the existence of a valid reason to dismiss assessed by reference to a legal right to dismiss.⁴¹ Therefore whether Mr Sharp’s admitted conduct amounted to misconduct serious enough as to give rise to the right to summarily dismiss him under the terms of his contract of employment was not relevant to the required s.387(a) consideration. It may be noted in any event that Mr Sharp was not summarily dismissed, but dismissed with a payment in lieu of notice.

[33] The relevance of the definition of “serious misconduct” in reg.1.07 to the matter is also, with respect, obscure. Section 12 of the Act contains a definition of serious misconduct for the purposes of the Act which simply cross-refers to reg.1.07. Apart from s.12 itself, the expression serious misconduct is used in only three places in the Act. In s.123(1)(b), a dismissal for serious misconduct is a circumstance in which the notice and redundancy entitlement provisions of Pt 2-2 Div 11 are not applicable; in s.534(1)(b) a dismissal for serious misconduct is one to which the requirements for notification and consultation in Pt 3-6 Div 2 do not apply; and in s.789(1)(b) a dismissal for serious misconduct is one in relation to which the requirements established by Pt 6-4 Div 3 for notification and consultation do not apply. The expression “serious misconduct” is not used anywhere in Pt 3-2, Unfair Dismissal, of the Act. Section 392(3) requires the Commission, in relation to the award of compensation for an unfair dismissal, to reduce the amount that it would otherwise order by an appropriate amount where it is “satisfied that the misconduct of a person contributed to the employer’s decision to dismiss the person”. However, it is clear that conduct may constitute “misconduct” for the purpose of s.392(3) without necessarily being “serious misconduct”. The expression is used in the Small Business Fair Dismissal Code, but that had no application in this case (and it is at least highly doubtful in any event whether the reg.1.07 definition applies to the Small Business Fair Dismissal Code). ⁴² Reg.1.07 therefore had no work to do in the application of the provisions of Pt 3-2 to the circumstances of this case.

[34] It may be accepted that an assessment of the degree of seriousness of misconduct which has been found to constitute a valid reason for dismissal for the purposes of s.387(a) is a relevant matter to be taken into account under s.387(h). In that context, a conclusion that the misconduct was of such a nature as to have justified summary dismissal may also be relevant. Even so, it is unclear that this requires a consideration of whether an employee’s conduct met a postulated standard of “serious misconduct”. In Rankin v Marine Power International Pty Ltd ⁴³ Gillard J stated that “There is no rule of law that defines the degree of misconduct which would justify dismissal without notice”⁴⁴  and identified the touchstone as being whether the conduct was of such a grave nature as to be repugnant to the employment relationship.⁴⁵ Serious misconduct is sometimes used as a rubric for conduct of this nature, but to adopt it as a fixed standard for the consideration of misconduct for the purpose of s.387(h) may be confusing or misleading because the expression, and other expressions of a similar nature, have been considered and applied in a variety of contexts in ways which are influenced by those contexts. In McDonald v Parnell Laboratories (Aust) Pty Ltd⁴⁶  Buchanan J said:

‘[48] The terms ‘misconduct’, ‘serious misconduct’ and ‘serious and wilful misconduct’ are often the subject of judicial and administrative attention as applied to the facts of particular cases but there is relatively little judicial discussion about their content and meaning. Naturally enough, when the term ‘serious misconduct’ is under consideration an evaluation of what conduct represents ‘serious’ misconduct is influenced by the (usually statutory) setting in which the phrase must be given meaning and applied. Frequently, for example, the question at issue is whether an employee is disentitled by reason of his or her conduct to a statutory entitlement (eg. in New South Wales, where Ms McDonald was employed, see Long Service Leave Act 1955 (NSW) s 4(2)(a)(iii); Workers Compensation Act 1987 (NSW) s 14(2).’”

[23] It is of course the case that the commission of any of the types of conduct referred to in reg.1.07 (broadly speaking, wilful or deliberate conduct inconsistent with the continuation of the employment contract, serious and imminent risk to health and safety or the viability of the business, theft, fraud, or assault, intoxication at work and refusal to carry out a lawful and reasonable instruction) may well ground a finding under s.387(a) that there is a valid reason for dismissal, and would also be given significant weight in considering whether a dismissal for such conduct is harsh, unjust or unreasonable under s.387. It must also be acknowledged that the application of the exemption in s.123(1)(b) from the requirement to provide the NES entitlement to notice would not be irrelevant under s.387. But the point is that “serious misconduct” as defined in reg.1.07 (or otherwise) is not the criterion for whether a valid reason exists under s.387(a) or for whether a dismissal is unfair or not. It may well be the case, for example, that conduct that does not fall within reg 1.07 may nonetheless be found to constitute a valid reason for dismissal. Alternatively, the fact that a dismissal is based on conduct that does fall within reg.1.07 does not preclude a finding that the dismissal was harsh, unjust or unreasonable.

[164] I concur with the above Full Bench decision, and find that I am not, in determining whether there was a valid reason for the dismissal, obliged to consider Regulation 1.07 of the Fair Work Regulations 2009. I may elect to have regard to the Regulation in determining whether there was a valid reason for the dismissal. [my emphasis].

[165] The parties did not address me on this issue. I do not consider it necessary for me to traverse any issues with regard to Regulation 1.07 when I have already determined in paragraph [121] that there was a valid reason for the dismissal.

Conclusion

[166] Having regard to my findings above with respect to s.387(b), (c), (e), (f) and (g), I cannot find for Ms Jeong that the dismissal was harsh, unjust or unreasonable.

[167] While I have determined that pursuant to s.387(d), Alpha Flight unreasonably refused to allow Ms Jeong a support person, on the whole, I do not consider that failing of Alpha Flight to be sufficient for a finding that the dismissal was harsh, unjust or unreasonable. On the evidence before me, even if Ms Jeong had made admissions following the communication by Mr Cole to Ms Jeong that her employment had been terminated, the outcome would remain unchanged.

[168] Ms Jeong’s 11^th hour admissions, if they had been made on the urging of a support person, would not have altered the employer’s position. I am mindful that in the Form F2 – Unfair Dismissal Application made by Ms Jeong to the Commission on 24 January 2016, there still lacked an insight by Ms Jeong into the conduct she had engaged in.

[169] Ms Jeong failed to acknowledge that she had not told the truth during the meetings of 19 and 21 January 2016. Ms Jeong stated that she felt threatened and scared. Ms Jeong claimed, “I feel this is wrong because even though I changed the medical certificate I did not do anything to disadvantage the company; I thought I was doing the right thing by coming back to work one day early.” 47

[170] In the three days following her termination before submitting her claim for unfair dismissal, Ms Jeong did not adequately reflect on her own misconduct in the matter. If she did not do so in this time, she certainly would not have done so in the time taken to consult with a support person in the hour or so following the meeting of 21 January 2016 and the meeting being reconvened.

[171] With regard to what I have considered pursuant to s.387(h), Ms Jeong’s employment with Alpha Flight was in excess of 3 years, and she had a largely unblemished record. These are clearly relevant and significant matters in the consideration of whether the dismissal was harsh, unjust or unreasonable.

[172] Given consideration to the misconduct Ms Jeong has engaged in, I am sympathetic to Alpha Flight’s unwillingness to continue the employment in what is a very important role, including ensuring food safety regulations are met. Ms Jeong’s misconduct cannot be excused, even if she thought she was assisting her employer by seeking to come back to work early.

[173] In those circumstances I consider, notwithstanding Ms Jeong’s length of service, her satisfactory work history, and the consequences of her dismissal, that Alpha Flight was entitled to conclude that there was no basis for confidence that Ms Jeong would comply with Alpha Flight’s company policies in future if her employment continued. For that reason, Ms Jeong’s dismissal cannot fairly be characterised as a disproportionate response to her conduct.

[174] Having considered each of the matters specified in s.387, I am not satisfied the dismissal of Ms Jeong was harsh, unjust or unreasonable. Accordingly, I find that Ms Jeong’s dismissal was not unfair. The application is therefore dismissed, I order accordingly.

Application for costs

[175] During the hearing, Alpha Flight made a request for costs in the event the application is dismissed by the Commission. 48

[176] Pursuant to s.402 of the Act, an application for an order for costs under s.611 must be made within 14 days after the matter is determined by the Commission [my emphasis].

COMMISSIONER

 1   PN144-PN146

 2   Exhibit A1 at Para 3-22

 3   Exhibit R10 at Annexure A

 4   Ibid at Para 7-8

 5   PN232

 6   PN78

 7   PN83

 8   Witness statement of Mr Craig Cole at [9-10].

 9   See paragraph [52].

 10   Ibid at [15].

 11   Witness statement of Mr Matthew Ball at [11].

 12   PN233

 13   PN234

 14   PN240 and 241.

 15   PN263.

 16   PN316.

 17   PN329.

 18   PN448-PN457

 19   PN527.

 20   PN551.

 21   Streeter v Telstra Corporation Limited [2008] AIRCFB 15

 22   Respondent’s Outline of Submissions at [5.2].

 23   Tokoda v Westpac Banking Corporation [2012] FWA 1262 at [29].

 24   PN591.

 25   Tokoda v Westpac Banking Corporation [2012] FWA 1262

 26   PN605.

 27   Sayer v Melsteel [2011] FWAFB 7498 at [20]

28 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-378.

29 Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371, 373

30 Ibid

31 Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41].

32 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.

33 Previsic v Australian Quarantine Inspection Services Print Q3730.

34 (2000) 98 IR 137.

35 Ibid at 151.

36 RMIT v Asher (2010) 194 IR 1, 14-15

37 Annetta v Ansett Australia Ltd (2000) 98 IR 233, 237

38 (2003) unreported, PR931440 at [30].

39 [2015] FWCFB 1033

40 Annetta v Ansett Australia (2000) 98 IR 233 at [9]-[10]

41 He v Lewin [2004] FCAFC 161; (2004) 137 FCR 266 at [15] per Gray and Mansfield JJ

42 Since Sharp, it has been held in Ryman v Thrash Pty Ltd t/a Wisharts Automotive Services [2015] FWC 5264 that reg.1.07 does apply to the expression “serious misconduct” where it appears in the Small Business Fair Dismissal Code.

43 [2001] VSC 150; (2001) 107 IR 117

44 Ibid at [240]

45 Ibid at [250]-[257]

46 [2007] FCA 1903; (2007) 168 IR 375

 47   Form F2 at [3.2, xvi].

 48   PN614.

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