DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Merrin Moore
v
Specialist Diagnostic Services Pty Ltd T/A Dorevitch Pathology
(U2016/6425)

Application for relief from unfair dismissal – dismissal unfair - compensation granted.

[1] Ms Merrin Moore was employed by Specialists Diagnostic Services Pty Ltd T/A Dorevitch Pathology (Dorevitch). She commenced employment in July 2003 as a Pathology Collector. This involved taking blood samples, collecting urine samples, hair samples etc. She took urine samples for drug testing purposes for pre-employment checks and for the Department of Human Services and Corrections Victoria. In 2008 she was promoted to Collections Co-ordinator, a ‘middle management’ position which involved the coordination of 90-150 pathology collectors throughout a specified region. It was this position she occupied at the time she was dismissed.

[2] Ms Moore has now made an application to the Fair Work Commission (Commission) seeking relief from unfair dismissal.

Background

[3] On 16 March 2016 Ms Rebecca Bracko, the Human Resource Officer at Dorevitch, received a phone call from a person who said that she knew of two employees of Dorevitch who were under the influence of drugs, including heroin, and who had property belonging to Dorevitch in their home. The caller disclosed her name to Ms Bracko but did not want it disclosed any further. The caller was referring to Ms Moore and her housemate.

[4] On 17 March 2016 Ms Moore inquired at her local police station on gaining an apprehended violence order (AVO) against her neighbour with whom she had been friendly until a recent incident when her dog bit the neighbour’s child.

[5] At 8.00am on 17 March 2016, Ms Moore received a call from Ms Jacqueline Connell, her manager, requesting that she attend Dorevitch’s head office in Heidelberg.

[6] Around the time she arrived at the Heidelberg office that day Ms Moore received a text message from her housemate – who she variously described as her partner, a friend, or a person she shared a house with but had separate bedrooms and bathrooms – who told her he had been asked to take a urine drug test. He also worked for Dorevitch.
[7] When Ms Moore arrived at work she was invited by Ms Connell into a meeting with Ms Bracko. At that meeting Ms Moore was asked to undergo a urine drug test designed to determine if she had any illicit drugs in her system.

[8] At this meeting Ms Moore became agitated and left the meeting. Ms Connell left the meeting with her. There was then some discussion about her calming down and having a cigarette. Ms Moore subsequently left the premises and drove off in her car. She did not provide a urine sample for drug testing.

[9] Ms Bracko attempted to call Ms Moore and have her return to work. At noon that day, Ms Moore spoke to Ms Connell and said she would return after lunch. In the afternoon Ms Moore called Ms Bracko and advised that she had a doctor’s certificate and would not be returning to work.

[10] On 1 April 2016 Ms Moore attended a further meeting with Ms Bracko and Ms Connell. Ms Moore was asked why she had not returned to the meeting on 17 March 2016 when she had been directed to do so. Ms Moore apologised for her conduct at the meeting of 17 March 2016 and said she was willing to take a urine drug test. She also explained that she had been stressed on 17 March 2016 by matters associated with securing the AVO against her neighbour. During a break in the meeting Ms Bracko and Ms Connell consulted Mr Neville Moller, the Chief Executive Officer of Dorevitch. Following this break Ms Moore was advised that her employment would be terminated for failing to obey a direction on 17 March 2016.

[11] Ms Moore subsequently received a letter advising that her employment had been terminated for ‘serious misconduct in relation to your failure to follow managements reasonable directions on Thursday 17 march 2016’ (sic) 1.

Legislation

[12] Section 385 of the Fair Work Act 2009 (the Act) states:

385 What is an unfair dismissal

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

(a) the person has been dismissed; and

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

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

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

Note:     For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.

[13] I am satisfied that Ms Moore has been dismissed. Dorevitch is not a small business and it is not said the dismissal was as a result of redundancy.

[14] It remains to determine if the dismissal was harsh, unjust or unreasonable.

[15] Section 387 of the Act states:

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.

[16] I shall consider each of these matters.
[17] .
(a) A valid reason relating to the capacity or conduct etc

[18] Ms Moore says that when she arrived at the meeting on 17 March 2016 with Ms Connell and Ms Bracko she tried to explain to them about the AVO she had sought that morning. She says they would not listen to her and insisted that she undertake a urine drug test. Ms Moore says she was happy to take the test but did not want Ms Connell taking the sample. She says Ms Connell was her immediate supervisor, they spent a lot of time at work together and she did not think it appropriate to have someone she knew taking her urine sample. She said she would never take a urine sample from someone she knew or worked closely with and did not consider this to be best practice.

[19] Ms Moore says that, while Ms Connell said she would ensure that the test was anonymous, she did not consider that this was possible as she would have to walk to the testing bathroom past laboratory staff that she knew and worked with and they would know it was her being tested.

[20] Ms Moore says that the procedure proposed by Ms Connell and Ms Bracko for testing was not in accordance with Dorevitch policy for urine drug testing 2 and was not in accordance with Australian/New Zealand Standard AS/NZS 4308 (Australian/New Zealand Standard).3

[21] The evidence of Ms Connell and Ms Bracko is that Ms Moore was agitated during the meeting and kept asking for a pen and paper so she could resign. 4 They dissuaded her from doing so. Their evidence is that Ms Moore refused to provide a urine sample for drug testing, that she did not raise issues with the policy and she did not set out any objection to Ms Connell taking the sample.

[22] There is no dispute that Ms Moore left the meeting and did not return although there is some dispute as to the circumstances of her departure.

Why was Ms Moore’s employment terminated?

[23] According to the letter of termination, Ms Moore’s employment was terminated for her failure to follow management’s reasonable directions in relation to the meeting of 17 March 2016.

[24] Ms Moore and Mr Raymond Collins, a union organiser, both gave evidence that they understood that Ms Moore had been called to the meeting of 1 April 2016 because she refused to provide a urine sample at the meeting of 17 March 2016. 5 At the opening of the meeting of 1 April 2016 Ms Moore said that she was willing to provide a urine sample for drug testing as long as it was conducted independent of Dorevitch and in accordance with the Australian/New Zealand Standard. Mr Collins’ evidence is that Ms Bracko said that the issue was Ms Moore’s failure to follow management’s direction and return to the workplace.6

[25] Mr Moller’s evidence is that Ms Moore’s employment was terminated because she ‘disobeyed a lawful instruction to undergo that test, yes.’ 7

[26] Mr Moller’s evidence is that if ‘Ms Moore had taken the drug test and it was clear, she would not have been dismissed. She had her opportunity to take the drug test and that would have cleared the matter up if she hadn’t been taking drugs.’ 8 He said that he ‘was told that she refused a drug test and I said that we need to put it to her to have that drug test.’9

[27] With respect to the decision to terminate Ms Moore’s employment, Mr Moller says that he ‘was part of that decision, yes’, 10 that he ‘had a part to play’11 and that the decision was ‘[n]ot necessarily’ his call in the end.12 He says that, with Ms Bracko and Ms Connell ‘[w]e had a discussion about it prior to the decision being made.’13

[28] Mr Moller says that he ‘wasn’t involved in the issue on a day-to-day basis. Ms Connell and Ms Bracko investigated it and came to me and said, “This is what’s happened, this is what we think we should do.” ’ 14

[29] As to when he was aware that Ms Moore had refused to comply with a direction to take a urine drug test Mr Moller said:

So you didn’t know about the drug test until after 17 March?  -I don’t know the dates, I wouldn’t have a clue. They came to me at the eleventh hour and said, “This is what’s happened” and I said, “She needs to have a drug test. If she refuses, then we’ve got a problem.” 15

[30] Ms Bracko gave evidence that it was not the refusal of Ms Moore to undertake the urine drug test that was the reason of the dismissal but ‘It was her behaviour and her actions following’. 16

[31] Ms Bracko said, of the decision to terminate Ms Moore’s employment, that she and Mr Moller ‘make the decisions together’ but also said that Mr Moller ‘has the final say’. 17

[32] Ms Connell confirmed that this was the purpose of the meeting on 1 April 2016:

You indicate that it was made clear that the purpose of the meeting to investigate the allegation was that she failed to follow reasonable directions to attend and complete the meeting on 17 March 2016. Do you recall what was said at the commencement - at that meeting?  -I can’t recall the exact words at the commencement of that meeting but as per every meeting that I have attended with - in the business with HR involvement, the purpose of the meeting is made aware at the start of the meeting. But I can’t recall the exact words, sorry. 18

[33] There is no evidence that Mr Moller was involved in the matter prior to 1 April 2016 when he was involved in the decision to terminate Ms Moore’s employment. What Mr Moller said when Ms Bracko and Ms Connell came to him at the ‘eleventh hour’ can only refer to what had occurred during the meeting of 1 April 2016.

[34] On the basis of the evidence of Mr Moller, Ms Bracko and Ms Connell there is a clear conflict within Dorevitch as to who the decision-maker was in deciding to dismiss Ms Moore and what the reason for dismissal was.

[35] It is established that Ms Moore offered to take a urine drug test during the meeting of 1 April 2016 but this was not required by Ms Bracko and Ms Connell because they had not called Ms Moore to the meeting because of her refusal to take the urine drug test.

[36] It is not clear, from Dorevitch, the reason for the dismissal of Ms Moore. This being the case I have considered three potential matters – the refusal to return to the meeting of 17 March 2016 and, the failure to provide a urine sample for drug testing. The allegation of the anonymous caller in relation to theft was not taken up by Dorevitch.

Refusal to return to meeting

[37] When Ms Moore left the meeting on 17 March 2013 she was followed out by Ms Connell. Ms Moore says that Ms Connell told her to calm down, to get a sandwich and have a cigarette. Ms Moore says she took this as permission to leave 19 but agrees that Ms Connell did ask her to return to work.20

[38] Ms Moore says she was distressed by all of the events of the day and went to the doctor where she was given a medical certificate for that day and subsequent days.

[39] Ms Connell says that Ms Moore left the meeting without permission. She followed Ms Moore downstairs and says that Ms Moore told her she wanted to get a drink and cigarettes from her car. Ms Connell told her to come back to the meeting when she had done so.

[40] Ms Bracko’s evidence is that after Ms Moore left the meeting she was looking out of her window when she saw Ms Moore get into her car in the car park over the road from the office and drive away. She says she telephoned Ms Moore a number of times. She kept contemporaneous notes of those calls. 21 She says that Ms Moore did not call her back until 3.30pm. Ms Moore asked her if on return she would be required to undertake a urine drug test and Ms Bracko told her she would. Ms Moore phoned her again and said she had been to the doctor and had a medical certificate and would not be returning to work. Ms Bracko received the medical certificate at about 5.00pm that afternoon.

[41] There has not been any question raised as to the validity of the medical certificate provided by Ms Moore. It was accepted by Dorevitch and Ms Moore was paid personal leave for 17 March 2016 and subsequent days covered by it.

[42] Ms Bracko accepts that it may be that an employee will not advise the employer until sometime after the commencement of duty that they are unwell and that, under the National Employment Standards (which applied to Ms Moore) notice may be given after the leave has commenced. 22

[43] Ms Bracko says that Ms Moore did not tell her, prior to a phone call at about 4.00pm, that she was not well. Ms Moore did not return any of Ms Bracko’s phone calls until Ms Bracko left a message that she was concerned for Ms Moore’s health and would be contacting her emergency contacts if she did not hear from her. This response by Ms Bracko was appropriate in the circumstances, especially when Ms Moore had spoken to Ms Connell around 12.30pm and advised her that she was getting some lunch and would return to the office after that.

[44] I accept that Ms Moore was asked to return to work and did not. In this particular case, I do not consider it relevant whether Ms Moore thought she had permission to leave (and hence, return when she felt she could) or whether she left without permission and hence, should have returned as soon as she calmed down.

[45] Given the existence of the medical certificate, and its acceptance by Dorevitch, it is difficult to sustain any argument that Ms Moore should have returned to work on 17 March 2016. Clearly she was unwell, her medical certificate was for the entire day. The validity of the medical certificate is not in question. She was consequently on approved leave for the entire day. Dorevitch did not indicate to Ms Moore that they had reservations about her medical certificate.

[46] Whilst I accept that Ms Moore did not return to work, she was on approved leave. Her refusal to return to work cannot therefore provide a valid reason for her dismissal in circumstances where she was ill and unable to attend work.

[47] Even if having a medical certificate for the day does not protect Ms Moore from dismissal, I am not convinced that not returning to work that day provides a reason that is ‘sound, defensible or well founded’ 23 such that it provides a valid reason for dismissal in circumstances where Ms Moore had no history of misconduct and only one instance of a performance issue that was satisfactorily completed in a short period of time.

[48] This is, however, not to fully excuse Ms Moore of her conduct. Clearly, at some stage after leaving the meeting, she decided to go to the doctor. The appropriate thing to do would be to return the calls of Ms Bracko or call Ms Connell and advise that she was unwell and was going to the doctor. On the evidence, Ms Bracko called Ms Moore a number of times from 10.15am until her call was finally returned at about 3.30pm. It was not an hour or two while Ms Moore was getting some lunch or calming down but rather a gap of over five hours. I do not accept that Ms Moore was in apposition for all of this time when she could not return a phone call.

[49] Ms Moore told Ms Connell at about 12.30pm that she was getting lunch and would be back. She did not return, nor did she tell Ms Connell that she was unwell. Avoiding Ms Bracko’s phone calls was not a solution to the issue.

[50] In all of these circumstances, I am not satisfied that the failure of Ms Moore to return to work in circumstances where she had a medical certificate for the day and where this leave was subsequently approved without question by Dorevitch, provides a valid reason for dismissal.

Refusal to take urine test

[51] Ms Moore says that she did not refuse to take a urine drug test but rather, that she did not want Ms Connell to take the sample. She did not believe that the process proposed by Ms Bracko and Ms Connell met the requirements of Dorevitch’s policy or the Australia/NZ standard.

[52] Ms Connell’s evidence is that Ms Moore refused to take the drug test on 17 March 2016. 24 Ms Connell said the test could have been done anonymously and that there are times this is done at Dorevitch25 although she agreed that to do so would mean non-compliance with the chain of custody requirements in Dorevitch’s policy and Australian/New Zealand Standard.26 Ms Connell said that she was last a pathology collector 15 years ago and had done no drug screens in the last four years.27 Ms Connell agreed that it wouldn’t be appropriate for a sample collector to undertake a drug screen for someone they knew.28 In these circumstances, Ms Connell considered it reasonable for Ms Moore to refuse to undertake a urine drug test as proposed at the meeting of 17 March 2016.29

[53] Ms Bracko’s evidence is that she did not need to take advice from Ms Connell in relation to compliance with the drug testing policy in relation to Ms Moore because no objection to the proposed process was raised by Ms Moore. 30

[54] I am satisfied that Dorevitch had grounds for requesting a urine drug test of Ms Connell. Dorevitch’s policy sets out factors which may be considered in reaching a judgement as to impairment. 31 They are not the only factors, nor do they operate to limit when Dorevitch may require a drug test.

[55] I am satisfied that it is not best practice to take a urine drug sample from a person you work with and know 32 and certainly not from a person you directly manage.

[56] I accept that the process proposed by Dorevitch to take a urine sample and test for the presence of drugs was not in accordance with its own policy for drug and alcohol testing or the Australian/New Zealand Standard. This is clear from the evidence of Ms Connell.

[57] In the circumstances, I am not convinced there was a clear refusal with reasons articulated by Ms Moore for refusing to provide a urine sample as requested on 17 March 2016. It is agreed that Ms Moore got agitated and left the meeting. Whilst I accept that Ms Moore may have attempted to set out her concerns about the testing regime put to her I am not convinced, in her agitated state, she clearly articulated the reasons for her concern to Ms Bracko and Ms Connell. Further, Ms Bracko and Ms Connell were clear in their recollections of the meeting whilst Ms Moore was less sure of events. Further, Ms Moore had difficulty clearly articulating to the Commission, in circumstances where she had adequate time to prepare, the operation of the policy.

[58] Whilst I accept that Dorevitch’s policy allows for a number of methods for screening for drugs, it is a matter for Dorevitch to determine what method it will use in any particular case when it requests staff to undertake a drug test. In this case, it chose urine testing. Having done so, it was obliged to comply with Australian/New Zealand Standard. That standard requires a chain of custody procedure that involves unique identifiers of the donor and the completion of forms including those identifiers. 33 The procedure also requires that specimens be labelled such that they are always traceable back to the chain of custody form.34 Had Ms Moore provided a urine sample and it be dealt with as proposed, these requirements would not have been met.

[59] I accept that Ms Moore agreed to provide a urine sample at the meeting of 1 April 2016 but this was refused by Dorevitch because, as Ms Bracko said, that meeting was solely about her refusal to return to the meeting of 17 March 2016. 35

[60] To the extent that Ms Moore’s employment might have been terminated (on the evidence of Mr Moller) for her refusal to take a drug test, I am satisfied that she was willing to do so and offered to do so at the meeting of 1 April 2016. Mr Moller did not know of what transpired at the meeting of 17 March 2016 – his reactions were in relation to the discussion he had with Ms Bracko and Ms Connell on 1 April 2016. His evidence clearly indicates that he considered Ms Moore’s refusal to take to the drug test occurred at the meeting of 1 April 2016 and this provided a basis for dismissal.

[61] Given that Ms Moore did not refuse to provide a urine sample for drug testing on 1 April 2016, I find that a refusal to have done so does not provide a valid reason for dismissal.

(b) Notified of the reason

[62] In its submissions, Dorevitch says that the reason Ms Moore was dismissed was because she failed to follow ‘managements reasonable directions’.

[63] On 18 March 2016, Ms Moore received a letter from Dorevitch which said:

This letter is to invite you to a meeting which I have scheduled for Monday 21 March 2016 at 1.30pm to discuss your failure to comply with a lawful and reasonable direction by Dorevitch Pathology on Thursday 17 March 2016.

We would like to meet with you face to face…

You are welcome to invite a support person to be present at the meeting to provide support to you during the interview process.

Please note the serious nature of this meeting. Following consideration of your responses, Dorevitch Pathology shall determine what, if any, disciplinary action will be taken against you – not excluding termination of your employment…

[emphasis added]

[64] The letter was signed by Ms Bracko.

[65] Due to Ms Moore’s absence on personal leave, the meeting arranged for 21 March 2016 did not occur until 1 April 2016.

[66] There appears to have been confusion at the meeting of 1 April 2016 as to what ‘direction’ Ms Moore had refused to comply with – the direction to provide a urine sample for drug testing or a refusal to return to the meeting on 17 March 2016.

[67] Either at the beginning of, or during the course of the meeting, it became clear that the direction with which Ms Bracko had directed her letter to and was concerned about was the direction to Ms Moore to return to work. Ms Bracko was not concerned that Ms Moore had failed to take a drug test as requested on 17 March 2016.

[68] Whilst it may well have been made clear at the beginning or during the meeting the matter with which Ms Bracko and Ms Connell were concerned, this was not clear in the letter sent to Ms Moore on 18 March 2016. Given the circumstances of the meeting and, it can reasonably be assumed, the seriousness with which Dorevitch treats the requirement of an employee to undertake drug screening, it is reasonable that Ms Moore considered that the ‘lawful and reasonable direction’ she had not followed on 17 March 2016 was that of taking a drug test. Nothing in the letter of 18 March 2016 provides any clarity that this was not the purpose of the meeting.

[69] I am satisfied that at the meeting of 1 April 2016, it was made clear to Ms Moore the matter Dorevitch was concerned about. It is unfortunate this was not clear in the letter of 18 March 2016.

(c) Opportunity to respond

[70] Whilst there was apparent confusion about the purpose of the meeting on 1 April 2016 I am satisfied that Ms Moore was given an opportunity to respond to her failure to return to the meeting of 17 March 2016 as directed.

[71] I am not satisfied that Ms Moore was given an opportunity to respond to the reason Mr Moller had for her dismissal. If the reason for her dismissal was that she refused a direction to take a urine drug test, then it is clear from the evidence of Ms Connell 36 that Ms Moore offered to undertake one on 1 April 2016. If the refusal was the reason for dismissal of Mr Moller, it was groundless and Ms Moore was never given an opportunity to respond to Mr Moller prior to him engaging in a decision to terminate her employment.

[72] At a break in the meeting on 1 April, and prior to advising Ms Moore that her employment had been terminated, Ms Bracko (and Ms Connell) spoke to Mr Moller. There is no clarity between the two decision-makers as to the reason for dismissal and who the ultimate decision-maker was.

[73] On the basis of the evidence it is difficult to know what Ms Bracko and Ms Connell told Mr Moller. Given his belief that Ms Moore had refused to undertake a drug test and that this was the reason he decided she should be dismissed it is evident that Ms Moore was not given an opportunity to respond to at least Mr Moller on this issue prior to him taking the decision that she should be dismissed. Ms Bracko’s belief that the reason for dismissal was Ms Moore’s failure to return to the meeting on 17 March 2016 suggests that Mr Moller was not aware of this as a decision maker and hence Ms Moore was not given an opportunity to respond to him as to this reason for dismissal.

[74] This uncertainty, and the failure of Ms Bracko to tell Mr Moller that Ms Moore had agreed to undertake a drug test on 1 Aril 2016 but apparently not tell him why she considered Ms Moore should be dismissed, means that Ms Moore was not given a clear and unambiguous opportunity to respond to the reason for dismissal and that there was a denial of procedural fairness to Ms Moore.

(d) Support person

[75] Ms Moore had her union representative with her in the meeting of 1 April 2016. She was not otherwise denied access to a support person.

(e) Unsatisfactory performance

[76] The reason for dismissal did not relate to unsatisfactory performance. This criterion is not relevant.

(f) & (g) Size of the employer’s business and access to human resources staff

[77] No submissions are made that these are relevant factors in making my decision.

[78] I do note however that Dorevitch is a large employer with dedicated human resource staff.

(h) Other matters

[79] Ms Bracko says she was aware that Ms Moore had sought, or was seeking, an AVO against her neighbour at the commencement of the meeting on 17 March 2016. She also says she was aware that it was Ms Moore’s neighbour who had called her to advise that Ms Moore and her partner were under the influence of drugs. Despite this, Ms Bracko did not think these two matters were connected. 37 That she could not draw a line between these two events is difficult to accept. Ms Bracko was the only one who knew the identity of the person who complained about Ms Moore’s alleged drug taking and who also knew of the AVO. Her failure to consider any link between the two suggests that she may have failed to consider a relevant matter in deciding to recommend to Ms Moller that Ms Moore’s employment be terminated.

[80] Ms Bracko said that during the meeting on 1 April 2016, Ms Moore was apologetic for her conduct on 17 March 2016 and that she acknowledged that she should not have behaved in the way that she did.’ 38

[81] Ms Bracko says that the request to Ms Moore to take a urine test was the ‘investigation’ envisaged under the policy. 39 I am not convinced that the investigation envisaged under paragraph 8.1 of the policy is directed at circumstances where an employee is thought to be under the influence of drugs at work, but rather the usage of storage of drugs at work. It seems to me quite reasonable, and not discordant with the policy, for an employee to be referred for drug testing to determine if they are under the influence of drugs while at work.

Was the dismissal harsh, unjust or unreasonable?

[82] There is nothing in relation to the dismissal of Ms Moore that could allow a conclusion that the dismissal was not harsh, unjust or unreasonable. There was no valid reason for her dismissal. Even if there had been a valid reason, the lack of procedural fairness afforded by the decision-makers and the uncertainty as to their reasons for dismissal would render the dismissal unjust.

[83] It follows that Ms Moore’s dismissal was harsh, it was unjust and it was unreasonable.

Conclusion

[84] I am therefore satisfied that Ms Moore was unfairly dismissed.

Remedy

[85] I am satisfied that Ms Moore is protected from unfair dismissal and that she has been unfairly dismissed. It therefore falls to me to consider remedy.

[86] Ms Moore does not seek reinstatement and, in the circumstances, I am satisfied that reinstatement is inappropriate. I shall therefore consider compensation.

[87] Section 392 of the Act states:

392 Remedy—compensation

Compensation

(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

Criteria for deciding amounts

(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer’s enterprise; and

(b) the length of the person’s service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that the FWC considers relevant.

Misconduct reduces amount

(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

Shock, distress etc. disregarded

(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.

Compensation cap

(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:

(a) the amount worked out under subsection (6); and

(b) half the amount of the high income threshold immediately before the dismissal.

(6) The amount is the total of the following amounts:

(a) the total amount of remuneration:

(i) received by the person; or

(ii) to which the person was entitled;

(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and

(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.

[88] I am satisfied that any order I make for compensation to be paid to Ms Moore will not affect the viability of Dorevitch.

[89] Ms Moore was employed by Dorevitch for 13 years, starting as a pathology collector before being promoted to a Collections Co-ordinator. Apart from the incident leading to her dismissal Ms Moore had one incident on her personal file in relation to a performance matter which apparently was resolved quickly and efficiently. There is nothing to suggest she would not have continued in her career with Dorevitch.

[90] In these circumstances it is reasonable to conclude that Mr Moore would have remained with Dorevitch for many years to come. I conclude that she would have remained in employment for at least a further three years.

[91] At the time of her dismissal Ms Moore was earning $2,384.62 per fortnight. This equates to lost remuneration for the three years I consider she would have remained in employment of $186,000.63.

[92] Ms Moore says that since her dismissal she has applied for over 20 jobs but has not been successful in gaining employment. She has undertaken training for a Certificate IV in Workplace Training and Assessment to improve her job prospects. 40 I am satisfied that Ms Moore has taken steps to mitigate her loss. I make no deduction with respect to any failure to mitigate.

[93] I do reduce the amount by 10% for contingencies.

[94] Ms Moore has not earned any income since the time of her dismissal.

[95] I have applied to compensation cap to the amount I shall order. I am, however, satisfied that Ms Moore’s conduct contributed to her dismissal. Whilst I appreciate that she did obtain a medical certificate for the day she was asked to take the urine drug test, her behaviour was unusual contributed to the decision to terminate her employment. Whilst I have found that there was no valid reason for dismissal this does not mean she did not engage in conduct that contributed to the decision to dismiss her. She left the premises. She went to her car and she drove off. She ignored phone calls from Ms Bracko but told Ms Connell around lunch time that she would return after lunch but then did not do so. Ms Moore’s conduct contributed to her situation. I have therefore reduced the amount of compensation that I would otherwise have awarded by 10% for this reason.

[96] I therefore order that Ms Moore be paid an amount of $27,900.00 plus superannuation. The amount will be required to be paid within 14 days of the making of the order.

[97] An order 41 to this effect is being issued at the same time as this decision.

COMMISSIONER

Appearances:

S. Crawford for the applicant.

J. Fraumano for the respondent.

Hearing details:

2016.

Melbourne:

August1 and 11.

 1   Exhibit A1, attachment MM-05.

 2   Exhibit A1, attachment MM-03.

 3   Exhibit A1, attachment MM-01.

 4   Transcript PN861,.

 5   Transcript PN606.

 6   Transcript PN534-5 and PN607.

 7   Transcript PN1386.

 8   Transcript PN1460.

 9   Transcript PN1410.

 10   Transcript PN1373.

 11   Transcript PN1375.

 12   Transcript PN1374.

 13   Transcript PN1377.

 14   Transcript PN1406.

 15   Transcript PN1413.

 16   Transcript PN1198.

 17   Transcript PN1102.

 18   Transcript PN732.

 19   Transcript PN247.

 20   TranscriptPN263.

 21   Exhibit R4, attachment RB-2.

 22   Transcript PN941-2.

 23   Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.

 24   Transcript PN816.

 25   Transcript PN777-778.

 26   Transcript PN785 and PN818.

 27   Transcript PN789-792.

 28   Transcript PN803-4.

 29   Transcript PN805.

 30   Transcript PN1143-4.

 31   Exhibit A1, attachment MM-03, section 7.1.

 32   Transcript PN801-4.

 33   Exhibit A1, attachment MM-01, section 2.2.4.

 34   Exhibit A1, attachment MM-01, section 2.4.

 35   Transcript PN1062.

 36   Transcript PN813-4.

 37   Transcript PN1312-6.

 38   Transcript PN926.

 39   Exhibit A1, attachment MM-01, paragraph 8.1.

 40   Exhibit A3 and A4.

 41   PR584564.

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