[2017] FWC 485
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mary Conelius
v
Southern Suburbs Football Club (Mackay) Inc. T/A Souths Leagues Club
(U2016/11685)

COMMISSIONER HUNT

BRISBANE, 14 FEBRUARY 2017

Application for an unfair dismissal remedy.

[1] Ms Mary Conelius has applied under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy with respect to her dismissal by Southern Suburbs Football Club (Mackay) Inc. T/A Souths Leagues Club (Souths or the Club). Ms Conelius alleges the termination of her employment was harsh, unjust or unreasonable.

[2] Directions were issued for filing of submissions and evidence in relation to the jurisdictional objection. The matter was listed for hearing on 19 January 2017 by videolink from Brisbane to Mackay.

[3] Ms Conelius was granted leave pursuant to s.596 of the Act to be represented by a lawyer, Mr Peter Clark, Solicitor of Eureka Legal Pty Ltd. Evidence for Ms Conelius was given on her own behalf and by Mr John Davey, her brother.

[4] Souths was represented by Mr Chris Elliot, General Manager. The following witnesses gave evidence on behalf of Souths:

Overview of Applicant’s case

[5] Ms Conelius gave evidence that the fire alarm panel is linked to sensors placed throughout the Club. The fire panel is located directly opposite the reception desk.  1 Ms Conelius stated that the fire system was notorious for activating “spontaneously” and for no apparent reason.2

[6] On 8 September 2016, Ms Cornelius was rostered to work from 5pm to 10pm and had arrived for her shift 2-3 minutes late as she had been ‘chauffeuring’ her son around town to appointments. Ms Conelius’ evidence is that there had been a booking mix up causing her to double-back and be delayed by a few minutes, and as a result she was ‘frazzled’ at the start of her shift. 3

[7] Ms Conelius’ evidence is that the fire panel was first activated that day at approximately 5:15pm, and she immediately went over and switched it off. Mr Turner had also arrived to ensure that the alarm was switched off. Ms Conelius returned to reception and was advised by Ms Edgar that she would be helping out with reception on and off that evening as there were a number of functions being held at the club that evening.

[8] Ms Conelius contends that at around 5:30pm that afternoon, Ms Edgar approached her at the reception desk and said, “she needed me [Ms Conelius] to come in a couple of times to do some training regarding the bus bookings procedure as there had been a lot of complaints and it [the procedure] was going ‘sideways’ and wasn’t working efficiently”4 Ms Conelius’ evidence is that this was the first time she had been told of the complaints, she didn’t like making mistakes, and she immediately started getting stressed as to what the complaints were about.

[9] Ms Conelius stated that after her discussions with Ms Edgar, reception started getting busier. At approximately 6:15pm, Ms Conelius was assisting a customer at reception making a booking to use the courtesy bus. She had almost finished writing down the customer’s address when she heard the fire alarm. She had been focused on getting the customer’s correct address.

[10] Ms Conelius proceeded to walk to the alarm when she saw Ms Edgar and Mr Turner arrive at the box to turn it off. Ms Conelius contends that she was well within the 90 second window that she has to switch off a false alarm.

[11] Ms Edgar approached Ms Conelius, with Mr Turner present, and said “Do you know the procedure for turning off the fire alarm”. Ms Conelius responded that she did. Ms Edgar then said words to the effect, “Well if you didn’t hear it then that is a worry in itself”, and then commenced explaining to her how to respond to the fire panel. 5

[12] Ms Conelius stated she exclaimed, “No. No. No”. Ms Conelius contended that she felt it all happened so fast and that she hadn’t planned to say those words or lose control. Ms Conelius contends that she was not facing Ms Edgar and the words were not directed at her personally. The words were directed at the situation and the frustration she felt due to the on-going issues with the fire alarm. 6

[13] Ms Conelius contends that Ms Edgar returned fire and shouted at her saying that her behaviour was unacceptable and rude, particularly at the reception area of the workplace.

[14] It is not disputed that Ms Edgar asked Ms Conelius whether she wanted to go home, to which Ms Conelius replied that she did. Ms Conelius contended that she was feeling upset, anxious and was starting to cry and then left the club in tears and drove home.

[15] That evening Ms Conelius wrote an email to Mr Elliot explaining to him her version of the events that had occurred that day. 7 The following day Ms Conelius received a phone call from Ms Homewood who told her that Ms Edgar wanted to arrange a meeting with her at 4:00pm that day. Ms Homewood also advised Ms Conelius that she could bring a support person along to the meeting.

[16] Ms Conelius attended the meeting with her brother, Mr Davey as a support person. The meeting was conducted by Ms Edgar and Mr Hale.

[17] Ms Conelius’ evidence is that the meeting started pleasantly with polite greetings exchanged. Ms Edgar then discussed Ms Conelius’ behaviour from the previous evening and asked her whether she thought it unacceptable. Ms Conelius responded that she thought her behaviour was unacceptable and that she had 'no control’ over what happened and that she had simply snapped’.

[18] Ms Conelius’ evidence is that she attempted to explain the situation when she was cut off by Ms Edgar who wanted to move on to discussing the bus complaints.

[19] Ms Edgar presented Ms Conelius with four pieces of paper, purportedly containing details of incidents relating to courtesy bus bookings. Ms Conelius recognised one of the pieces of paper, being a letter she had penned to Ms Homewood which outlined her view on an incident that had occurred with a bus driver, Mr Neville Sherrin. Ms Conelius stated Mr Sherrin had contributed to a significant delay with a pre-arranged booking and she had wanted Ms Homewood to know Mr Sherrin had been ignoring pre-arranged bookings in favour of accepting ad-hoc requests from patrons at the Club.

[20] Ms Conelius alleged that Ms Edgar did not allow her to read the other documents or to have copies of them, and when she attempted to explain the difficulties in addressing each complaint, Ms Edgar cut her off and stated, “We have talked enough about complaints”. Ms Edgar said she wanted to go back to discussing the incident from the previous evening. 8 Mr Davey’s evidence supports Ms Conelius’ claim that she was not provided with a copy of the bus complaints and not allowed an opportunity to respond to them.9

[21] Ms Conelius’ evidence is Ms Edgar then told her it appeared she didn’t seem to care about or seem too concerned about the incident as she had not offered a formal apology. She had not asked her how she (Ms Edgar) was feeling or shown any remorse about her behaviour or empathy towards Ms Edgar.

[22] Ms Conelius claims she said, “I’m sorry then” to which Ms Edgar responded, “No, I don’t accept that apology. It’s not genuine.” Ms Edgar then purportedly looked to Mr Hale for agreement and then proceeded to show Ms Conelius a page of the Club’s policies and procedures which stated that being rude to staff, personnel and members of the Club can lead to instant dismissal and was advised that she had ‘signed off on it’.

[23] During the hearing, Mr Davey was questioned in relation to his view, as an observer during the meeting on 9 September 2016, about the nature of the apology given by Ms Conelius:

[24] It was alleged that Ms Edgar posited that, if she didn’t do anything about what had happened the previous night and overlooked the incident, then how might Ms Edgar and other management appear to other employees at the Club. Ms Conelius’ evidence is she had expected disciplinary action to be taken in relation to the incident.

[25] In cross-examination, Ms Conelius was asked if she believed her actions on 8 September 2016 were a “sackable” offense. Ms Conelius responded:

[26] Ms Edgar then stated she didn’t think reception was the right place for Ms Conelius to be working. It was at this point in the conversation Ms Conelius began to think she was about to be ‘fired’.

[27] Ms Edgar then asked whether she thought she needed any further training. Ms Conelius did not reply as she did not know what to say. Mr Davey then asked if she or someone from the Club could give her some more training, to which Ms Edgar replied, “Yes if Mary wants to”, and pointed out Ms Conelius had refused an offer of training earlier in the year.

[28] Ms Conelius’ evidence is it was at this point she knew she was about to be ‘fired’, as Ms Edgar’s response to Mr Davey had omitted the fact she had requested training in gaming/cashier duties on numerous occasions, and despite those requests, no training was provided to her.

[29] Ms Conelius stated she tried to explain her reaction during the incident was a ‘one off’, not intended to be rude or to create an unpleasant scene at reception, and it was an unexpected response to an extremely frustrating and unnecessary situation.

[30] Ms Conelius explained to Ms Edgar she had been suffering from depression. Ms Edgar enquired whether she had sought help from a counsellor or psychologist. Ms Conelius responded by saying she couldn’t afford to pay for one as they are too expensive.

[31] Ms Conelius’ evidence is it was clear to her she was going to be dismissed during the meeting, despite Ms Edgar stating, “No I am not here to fire you. I called this meeting so you could have your say”. Ms Conelius stated she twice attempted to ‘have her say’ and both times she was cut off by Ms Edgar.

[32] Ms Conelius then stated to Ms Edgar she knew she was going to be sacked and that nothing has been resolved. Ms Conelius’ evidence is neither Ms Edgar nor Mr Hale corrected her or told her she was “getting carried away” and no assurance was offered to her that she was still an employee of Souths. Ms Conelius stated she then get up and left to say goodbye to her colleagues.

[33] Ms Conelius became more upset, and decided to leave the meeting. As Ms Conelius left the meeting, Ms Edgar said to her words to the effect, “You can no longer work here at Souths.”

Applicant’s closing submissions

[34] It was submitted for Ms Conelius that the relevant incidents to the dismissal was the incident of 8 September 2016 and then the meeting of 9 September 2016. The explanation provided in the material filed by Souths to the Commission is:

[35] It was submitted the matter had reached that stage for two primary reasons, being the bus bookings group of incidents and the incident on 8 September 2016. It was submitted that whilst there are other capacity or performance issues which are referred to in the evidence of Ms Homewood, those issues were not advanced and they did not seem to be an issue raised during the meeting held on 9 September 2016.

[36] The bus complaints were raised in the conversation between Ms Edgar and Ms Conelius on 8 September 2016 at the reception, and they were returned to in the meeting on 9 September 2016. It was submitted for Ms Conelius, and supported by the evidence of Mr Davey, the complaint documents were not provided to Ms Conelius and whenever she attempted to respond to those issues she was shut down. 13

[37] It was submitted she apologised for her outburst on 8 September 2016 which was spontaneous and out of character. Further she has acknowledged her actions were rude, unacceptable and a one-off breach of Souths’ policies and it is accepted by Ms Edgar the outburst was not directed at her personally, but rather at the situation Ms Conelius found herself in.

[38] It was submitted that ordinarily Ms Conelius’ characteristics at work are described as pleasant, polite and placid, and there have never been any similar outbursts before. These characteristics were also evidenced by some of Souths’ witnesses. 14

[39] In relation to the meeting conducted on 9 September 2016, it was submitted there was a lack of procedural fairness in respect of the failure to provide her with the bus complaints and the written documents to allow her the opportunity to at least absorb what was being said to her about her performance. It was further submitted the meeting could be characterised as a ‘badgering exercise’ on the part of Souths, and it is telling that early on in the meeting Ms Conelius had provided acknowledgement of her wrongdoing and was volunteering contrition in relation to the events of 8 September 2016. 15

[40] It was submitted the manner in which the meeting was conducted, that is, Ms Edgar alternating between the issues of the bus bookings and the incident the night prior led to an escalation where emotions were raised. Ms Edgar conceded that Ms Conelius had become irrational and was clearly overwhelmed, and at that point, the meeting could have been adjourned, with any sanction to be imposed on her to be determined on another occasion. It was submitted that because it had escalated, it had ended with Ms Edgar saying to Ms Conelius, “You can no longer work here at South’s.”

[41] In relation to whether the dismissal was harsh, unjust or unreasonable, it was submitted there was a lack of notice of concerns or reasons prior to the termination. It was submitted the dismissal was unreasonable, and an over-reaction by the employer to the situation that arose. 16

[42] It was submitted the dismissal was harsh for two reasons. The first being due to the economic impact it had on Ms Conelius, who is now in receipt of Centrelink benefits plus some token income from delivering prepaid raffle tickets. The second aspect relating to harshness is that dismissal was a disproportionate response to the gravity of the conduct, being the outburst on 8 September 2016, which was an isolated and uncharacteristic outburst from an otherwise pleasant, polite employee. It was further submitted that Ms Conelius admitted that the outburst did breach company policy, but that it was not a wilful breach or sustained breach, but rather a one-off episode that would not justify dismissal. 17

Overview of Respondent’s case

[43] Ms Homewood’s evidence is that she spoke to Ms Conelius in relation to complaints or possible complaints on numerous occassions. During the hearing, Ms Homewood said of the complaints:

[44] Ms Homewood’s evidence is upon discussing the complaints with Ms Conelius, her response was usually that she been ‘side tracked’ or that she was busy, but meant to ring them to tell them about the bus bookings. Ms Homewood stated while Ms Conelius was concerned about the issues, they continued to occur. 19

[45] In cross-examination, Ms Homewood was questioned about the nature of the conversations she had with Ms Conelius:

[46] Ms Edgar’s evidence with respect to the fire alarm panel is there are various causes for the panel to be activated, and the alarm sends out a very loud ‘beeping’ sound in the first instance. As the receptionist is within 3 metres of the fire panel, it is their responsibility to excuse themselves from any patrons or calls, ascertain whether it is an alarm or a fault, and if a fault press the “ACKN” button and notify the Duty Manager.

[47] Ms Edgar did not dispute the fact the alarm can be activated and stated it gives a false alarm for a number of reasons, including heavy rain. Ms Edgar gave evidence Souths takes the ‘spontaneous activation’ of the alarm very seriously due to the fact there may indeed be a fire on the premises, and to ensure patrons and Queensland Fire and Rescue are not inconvenienced unnecessarily. 21

[48] Ms Edgar’s evidence is if a Duty Manager hears the ‘beeping’ they will react quickly and attend to the panel then check the area indicated on the panel. The receptionist is also to respond quickly regardless of what they are doing, and not assume that the Duty Manager is in earshot, as they manage all areas of the Club and may not be in the vicinity when it is activated.

[49] With respect to the incident on 8 September 2016, Ms Edgar’s evidence is she and Mr Turner were walking back towards to the reception when they heard the fire alarm panel. Mr Turner ‘took off’ ahead of her to acknowledge the alarm.

[50] Ms Edgar stated she looked over to Ms Conelius who was writing down an address for a bus booking for a patron. Ms Edgar’s evidence is Ms Conelius had not looked up or over to the direction of the panel and had made no attempt to move at all. Mr Turner made it to the fire panel in time to acknowledge the alarm and determined that it was a false alarm.

[51] Ms Edgar’s evidence is she then approached Ms Conelius, who had just finished with the patron and asked her if she heard the beeping. Upon questioning Ms Conelius about whether she had heard the alarm and knew the correct procedure for when it was activated, Ms Conelius purportedly stared at her and yelled, “No, no, no, I know how to do it!”. Ms Edgar then instructed Ms Conelius, “You can’t speak like that, you’re at work that is not acceptable”.

[52] Ms Edgar arranged a meeting with Mr Elliot the following morning to discuss the incident that had occurred the night before. Mr Elliot informed Ms Edgar of the email he had received and Ms Edgar provided Mr Elliot with her version of events. Ms Edgar stated she then raised other issues in relation to the way in which Ms Conelius engages with other people, that she doesn’t like to be told how to do anything and other reception staff had expressed their frustration over the fact she doesn’t take responsibility for her mistakes.

[53] At the meeting on 9 September 2016, Ms Edgar advised Ms Conelius she wanted to speak with her about the events that had occurred the night before, and what went wrong. Ms Conelius’ response was she didn’t know as it all happened very quickly and she lost control and ‘snapped’ as a result of being told that there were a lot of bus booking complaints. Upon Ms Cornelius telling Ms Edgar of an incident with a previous employer in which she was dismissed, Ms Edgar informed Ms Cornelius the purpose of the meeting was not to ‘sack’ her. 22

[54] Ms Edgar agrees she did cut Ms Cornelius’ responses off at times, but contends this was only to keep the meeting on track.

[55] It is not disputed Ms Edgar raised issues relating to bus bookings with Ms Conelius, and Ms Edgar did not show Ms Conelius a copy of the complaints. Ms Edgar’s evidence is that the complaints were on her desk in full view and Ms Conelius had not asked to see them. Ms Edgar’s evidence is that she discussed with Ms Conelius the particular incidents relating to bus bookings, including those involving Mr Sherrin, and offered her training in time management, to which Ms Conelius purportedly refused. Ms Edgar noticed Ms Conelius was becoming frustrated with the conversation and so she changed the subject back to the incident of the night before.

[56] Ms Edgar’s evidence is that she did not imply or request that Ms Conelius owed some form of apology for her actions, but rather asked her why she had not felt the need to apologise for her actions. Ms Conelius responded by shouting, “Well I’m sorry then!”, to which Ms Edgar responded, “I’m sorry Mary I can’t accept that, you don’t mean it”.

[57] Ms Edgar agreed she then showed Ms Conelius the policy document declaring that being rude to staff, personnel and members of the club would lead to instant dismissal. She advised Ms Conelius that her behaviour was unacceptable and she had no reassurance from her it would not happen again.

[58] Ms Edgar’s evidence is throughout the meeting Ms Conelius kept insisting she was going to be ‘fired’. Ms Edgar contended she stated she was not here to ‘fire’ and the purpose of the meeting was to allow her an opportunity to have her say. Ms Conelius said words to the effect, “Well nothing is getting resolved, so I know that you’re going to sack me”. Ms Edgar agreed that she did not respond to Ms Conelius’ claims as she was becoming concerned about her conduct and was starting to think the meeting was not going anywhere and Ms Conelius was becoming extremely emotional. 23

[59] Ms Edgar was concerned with the fact Ms Conelius was fixated on the idea she was about to be dismissed and Ms Conelius was not offering solutions to help resolve the issues. She considered she was not accepting ownership of any of the issues. Ms Edgar’s evidence is she received no confirmation from Ms Conelius she was never going to behave that way again.

[60] Ms Edgar’s evidence is Ms Conelius was visibly angry and upset. She stated, “You might as well say you have sacked me”, and stood up and got her bag. As she was exiting the room Ms Edgar stated, “Mary you can no longer work here at Souths”.

Respondent’s closing submissions

[61] Souths submitted Ms Conelius’ employment was not terminated due to her acts of 8 September 2016 where she acted aggressively towards another staff member. Souths submitted that despite Ms Conelius’ admissions to breaching Souths’ policy as a consequence of her actions on 8 September 2016, it was not Souths’ intention to terminate Ms Conelius’ employment at the meeting on 9 September 2016, but rather to give her an opportunity to explain her actions. 24

[62] It was submitted for Souths the meeting of 9 September 2016 was her opportunity to apologise and explain her appalling behaviour, and during the course of the meeting Ms Conelius only apologised once when prompted, and the apology was aggressive and insincere.

[63] It was submitted for Souths that the meeting, which was primarily about the incident on 8 September 2016, escalated within minutes, with a second outburst from Ms Conelius within 24 hours, and ended with her storming out of the meeting. Further, Ms Conelius has stated she can’t guarantee this wouldn’t happen again, which would pose a risk to staff or patrons in the future. 25

[64] Souths submitted it had a valid reason for Ms Conelius’ dismissal, which was a combination of her behaviour, being her outbursts on both 8 and 9 September 2016. 26

[65] With respect to notifying Ms Conelius of the reason, it was submitted Ms Conelius had ‘stormed’ out the room before any reason could be given. With respect to the contention that the meeting should have been adjourned to another time when emotions were not so high, Souths contended that because the meeting escalating ‘within minutes’, the opportunity did not arise. 27

Legislative provisions

[66] There was no dispute that Ms Conelius had served the minimum employment period pursuant to s.383(a) of the Act, nor that she was a casual employee engaged on a regular and systematic basis pursuant to s.384(a)(i) with a reasonable expectation of continuing employment on a regular and systematic basis pursuant to s.384(a)(ii).

[67] Section 396 of the Act sets out four matters for determination prior to consideration of the merits of Ms Conelius’ application. These matters are not in dispute, and accordingly I find that:

[68] I am satisfied the dismissal was at Souths’ initiative pursuant to s.386(a) of the Act. While Ms Edgar did say in evidence, “I believe she sacked herself”28 submissions were not put, nor would I accept them that the dismissal was at Ms Conelius’ initiative.

Harsh, unjust or unreasonable

[69] I must now consider whether 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:

[70] The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd 29 by McHugh and Gummow JJ as follows:

[71] I am under a duty to consider each of these criteria in reaching my conclusion. 30

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

Valid reason - s.387(a)

[73] Souths must have a valid reason for the dismissal of Ms Conelius, although it need not be the reason given to the applicant at the time of the dismissal.31 The reasons should be “sound, defensible and well founded”32 and should not be “capricious, fanciful, spiteful or prejudiced.”33

[74] The events that led to Ms Conelius’ dismissal are largely uncontested between the parties. In closing submissions, Souths’ contended Ms Conelius was dismissed as a consequence of the combination of her conduct on 8 September 2016 and during the meeting on 9 September 2016.

[75] It is unclear from Souths’ submissions whether they contend the reason for the dismissal to be a consequence of the two ‘outbursts’ from Ms Conelius, or whether the issue of bus bookings was also pertinent. Regardless, I will deal with each issue in turn.

[76] In relation to courtesy bus bookings, it is uncontested Ms Homewood had on a number of occasions raised various issues with Ms Conelius. 34 While Ms Conelius agrees the pair had these discussions, she considered she was being provided with training, or guidance rather than a form of caution, warning or notice that her employment was in jeopardy.35

[77] Ms Homewood agreed with the notion her discussions with Ms Conelius about bus bookings would not aptly be described as warnings. Ms Homewood’s observations were that whenever she raised a concern with Ms Conelius, her response was often she “already knew the rules to follow” and her mind was often in other places. 36

[78] Having considered the material before me and having observed Ms Conelius and Ms Homewood giving evidence at the hearing, I accept that Ms Homewood had, on a number of occasions raised various issues with Ms Conelius about the performance of her role, including issues relating to courtesy bus bookings. I also accept Ms Homewood’s evidence that Ms Conelius would often be dismissive of the assistance offered by Ms Homewood.

[79] Whilst I am able to conclude that, on balance, there were issues with Ms Conelius’ performance with respect to the courtesy bus bookings, these issues were being addressed through informal training being offered verbally by Ms Homewood. On Ms Homewood’s own evidence, she could not describe her conversations with Ms Conelius as warnings, and conceded that there was an “ongoing learning curve at reception” 37.

[80] For the reasons set out above, I am unable to conclude that the issues with courtesy bus bookings form a valid reason for Ms Conelius’ dismissal. I have no doubt Souths had concerns with Ms Conelius in respect of certain aspects of the performance of her duties, however it is evident Ms Conelius required, and was receiving training on these issues.

[81] I will now turn to the incidents involving the ‘outbursts’ of Ms Conelius on 8 September 2016 and purportedly again on 9 September 2016. In relation to the incident on 8 September 2016, at the outset it is of note that Ms Conelius does not dispute she responded to Ms Edgar in a manner that was inappropriate and a breach of one of Souths’ policy. I am unable however to conclude that Ms Conelius’ conduct on 8 September 2016 warranted a valid reason for her dismissal, for the reasons that follow.

[82] It is evident the outburst was out of character, and on balance I find it likely to be a result of the anxiety of being informed earlier that day by Ms Edgar complaints had been made about her with respect to courtesy bus bookings, and frustration of having to deal with the faulty fire panel at a moment when she was trying to accurately take a courtesy bus booking.

[83] Ms Conelius, by all accounts, did not have a history of disrespectful or aggressive behaviour, and I accept that generally, she was a pleasant and placid employee while working at Souths. I do accept Ms Conelius’ ‘outburst’ was inappropriate, particularly given the fact it occurred at the reception area. Her obligation was to politely excuse herself from the patron and immediately attend to the fire alarm, as frustrating or inconvenient as it may have been.

[84] The ‘outburst’ was not directed at Ms Edgar personally. It was not offensive, threatening nor was it abusive. To the extent that it may constitute misconduct, I find that it was at the lower end of the spectrum, and would not be considered serious misconduct in the circumstances.

[85] In relation to the meeting of 9 September 2016, it is agreed that the meeting started pleasantly. It is Ms Edgar’s evidence, which I accept, it was her intention to provide Ms Edgar with an opportunity to explain her actions of the previous night, and she had no intention to dismiss Ms Conelius. Ms Edgar’s assertion about the meeting is supported by the fact that it is not the usual practice for her to dismiss employees, and such decisions were ordinarily left to Mr Elliot.

[86] My observations about the meeting are, on the evidence, it was conducted haphazardly. Ms Edgar does not dispute that she switched between topics of discussion with Ms Conelius to ensure the meeting did not go ‘off-track’. I find however, that the effect of the haphazard discussions were Ms Conelius felt she was not being afforded an opportunity to respond to Ms Edgar properly, and ultimately concluded early on she was about to be dismissed, even though in all likelihood, she was in fact, not.

[87] It is not disputed by any person present at the meeting that Ms Conelius was becoming visibly upset by the discussions and increasingly irrational. This is evidenced by Ms Conelius insisting to Ms Edgar she knew she was about to be dismissed and her references to how she was dismissed in other employment in a call centre. Ms Edgar’s evidence is she did not agree or disagree with Ms Conelius’ statements about her dismissal because she was becoming concerned with her conduct, despite recognising her increased emotional state. I consider it is around this point Ms Edgar formed the view Ms Conelius should be dismissed, a view that was likely solidified by Ms Conelius’ decision to stand up and commence leaving the room.

[88] It is perplexing that despite Ms Conelius’ obvious emotional and irrational state, Ms Edgar decided to continue with the meeting. A break during the meeting would have been completely appropriate.

[89] I do accept that the apology given by Ms Conelius was forced and not genuine. I do consider it was somewhat rude and disrespectful, but in the heat of the conversation and her emotional state, it is not surprising that the apology was unsatisfactory.

[90] I do not find Ms Conelius acted aggressively at the meeting; rather her heightened emotional state was apparent as she had formed an irrational view about likely conclusion of the meeting. In my view, that is not surprising giving the way in which the meeting was conducted.

[91] It is Ms Edgar’s own evidence, which I accept, she stated words to the effect, “Mary you can no longer work here at Souths” as Ms Conelius was leaving the room. It is, in my view, even more perplexing that Ms Edgar considered Ms Conelius’ actions during the meeting to be sufficiently serious to warrant summary dismissal. Certainly, Ms Conelius was very emotional and repeating that she was likely to be ‘sacked’, however I do not find Ms Conelius’ behaviour during the meeting of 9 September 2016 to constitute a valid reason for dismissal.

[92] I conclude that the incidents that led to the dismissal, when considered in isolation or together as a combined series of events, were not of substantial gravity to warrant dismissal. The reasons for dismissal relied upon by Souths were not sound, defensible, or well founded. In my view, Ms Conelius’ conduct on each count lacked any notion of seriousness or severity that is inherently required to constitute a valid reason for dismissal. Accordingly I find that there was no valid reason for Ms Conelius’ dismissal.

Notification of the reason - s.387(b)

[93] The dismissal was effected by Ms Edgar in the ‘heat of the moment’, with the use of words to the effect, “Mary you can no longer work here at Souths”, as she was departing the meeting on 9 September 2016. It is the contention of Souths they were unable to inform Ms Conelius of the reasons for the dismissal because she was already ‘storming out of the room’. 38

[94] I accept that Ms Conelius’ conduct contributed to the circumstances surrounding the dismissal when she determined to abruptly leave the meeting on 9 September 2016, albeit in an emotional state; however that does not change the fact that the dismissal occurred at Souths’ initiative. Souths elected to terminate Ms Conelius in the abrupt and in my view, unnecessary fashion, which reduced any possibility that Ms Conelius could be notified of the reasons for her dismissal.

[95] Consequently, I find that Souths did not notify Ms Conelius of the reason for her dismissal.

Opportunity to respond - s.387(c)

[96] 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.39

[97] At the time of the dismissal, Ms Conelius was attending a meeting to discuss elements of her performance which ultimately formed part of the reason for her dismissal. I accept Souths had not intended to dismiss Ms Conelius at this meeting.

[98] Ms Conelius was given an opportunity to respond to the events of 8 September 2016. She was provided with every opportunity to discuss these events. However, I do not accept that she was given an appropriate opportunity to address the concerns held by Souths in relation to the bus bookings. This was indeed canvassed, but without any opportunity to review the complaints, or have time to properly respond to them, she was not in a position to realise that the complaints may form part of a reason for her dismissal.

[99] I accept Souths intended at the meeting to discuss the above issues, and no doubt afford Ms Conelius an opportunity to respond. In part Ms Conelius was afforded an opportunity to respond, but in part she was not. The dismissal was then effected abruptly.

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

[100] Ms Conelius was offered and did have a support person with her at the meeting on 9 September 2016. There was no refusal by the respondent to allow a support person. This is a neutral consideration in determining whether the dismissal was harsh, unjust or unreasonable.

Warnings regarding unsatisfactory performance - s.387(e)

[101] It cannot be said the dismissal was due only to unsatisfactory performance; it was largely to do with the two ‘outbursts’ and Souths’ concern that these might happen again at reception. There were elements of performance issues that formed part of Souths’ reasoning, including the courtesy bus complaints and the failure to respond appropriately to the fire panel.

[102] I accept Ms Homewood’s evidence that on numerous occasions she had raised issues with Ms Conelius about her concerns with courtesy bus bookings. I am also satisfied she was reminded on occasions about prioritising the fire panel when it was activated. I find these discussions with Ms Conelius constituted informal verbal counselling or training on areas in which she needed improvement.

[103] I accept the submissions made for Ms Conelius that she was not provided any formal warning, or put on notice by Souths that should her performance not improve her employment was in jeopardy.

Impact of the size of the Respondent on procedures followed - s.387(f); and Absence of dedicated human resources management specialist/expertise on procedures followed - s.387(g)

[104] The respondent is a small to medium sized business. I find the size of Souths’ enterprise did impact on the procedures followed in effecting the dismissal.

[105] Ms Edgar is the HR Manager, and in my view, did not conduct the meeting of 9 September 2016 to the standard one would expect of a human resource management specialist or a person with expertise. It was put by Souths the meeting escalated at a rate of knots that no-one could foresee.

[106] I don’t wish to be overly critical of Ms Edgar. It is not clear if Ms Edgar professes to be a specialist or hold relevant expertise. I find there was an absence of dedicated human resources management expertise. I consider this lack of expertise did impact on the procedures followed in effecting the dismissal.

Other relevant matters - s.387(h)

[107] There are no other relevant matters to which my attention was drawn.

Conclusion

[108] Having considered each of the matters specified in s.387, I am satisfied the dismissal of Ms Conelius was harsh, unjust and unreasonable. The matters considered in [104]-[106] do not weigh sufficiently against the findings earlier considered.

[109] In my view, the dismissal was a disproportionate response to her conduct.

[110] I now turn to consideration of an appropriate remedy.

Remedy

[111] Section 390 of the Act reads as follows:

[112] Ms Conelius is a person protected from unfair dismissal for the Act’s purposes, and is a person who has been unfairly dismissed. Ms Conelius seeks reinstatement.

[113] Section 391 of the Act provides as follows:

[114] I have found Ms Conelius was unfairly dismissed, however it is not axiomatic that reinstatement or reappointment follows such a finding. In a Full Bench decision in Nguyen v Vietnamese Community in Australia [2014] FWCFB 7198 it was held:

[115] The following submissions were made for Ms Conelius with respect to reinstatement:

[116] Souths conceded that whilst certain employees agreed during the proceedings they could work with Ms Conelius again, it was contended there would still be concerns. 41

[117] Souths contended there was a very real risk of the Ms Conelius’ behaviour repeating again and leading to added stress to anyone in a management or supervisory position. During the hearing I asked Ms Conelius the following question and Ms Conelius answered: 42

[118] It was submitted for Souths that should the Commission be minded to reinstate Ms Conelius, consideration should be given to as to whether she may need to undergo an anger management program. In reply, Ms Conelius stated she was currently undergoing counselling, including how to deal with those types of issues.

[119] I am mindful of Ms Conelius’ age and the likelihood of her securing alternative employment in a regional centre.

[120] Having regard to my findings about the dismissal, the steps Ms Conelius has taken to seek counselling to address her personal/anger and depressive issues and her failure to obtain alternative employment at the date of the hearing, I therefore consider it is appropriate to order, pursuant to s.391(1) of the Act, that Ms Conelius be reinstated to the position she held immediately before her dismissal.

[121] Given Ms Conelius is a casual employee, it is a matter for the parties as to how many shifts will be given to Ms Conelius each week, having regard for the history of shifts worked and the need to offer work to other casual employees. It is noted Mr Elliot made submissions Ms Conelius was typically rostered to work two or up to three shifts per week, however some of these shifts were offered when other employees called in sick. 43

[122] It will be necessary for the parties to ease into the relationship. It is recommended that Souths seek relevant professional guidance to ensure Ms Conelius’ return is successful

[123] It would be appropriate, and it is a matter for Souths to use its discretion to consider issuing to Ms Conelius a written warning with respect to the incident on 8 September 2016. The warning may be issued by Souths to remind Ms Conelius if there is a future failure to attend to a fire alarm in a reasonable period of time, having regard to the busy reception area in the Club, or any further emotional outbursts without satisfactory explanation, it may lead to disciplinary action which may include termination of employment.

Order to maintain continuity

[124] In all the circumstances, I consider it appropriate to make an order pursuant to s.391(2) to maintain the continuity of the employment and the period of continuous service for all purposes, other than in respect of the accrual of long service leave in the period between termination and reinstatement.

Order to restore lost pay

[125] The relevant considerations when determining if lost pay should be ordered are set it in ss.391(3) and (4) of the Act:

[126] Both parties made submissions with respect to this issue. For Ms Conelius, it was submitted the Commission should restore full back pay having regard to Ms Conelius having earned approximately $38,000 in the 12 months immediately before the dismissal. It was put that she should be ‘docked’ one week’s pay to represent a sanction she could have reasonably expected following the incident on 8 September 2016.

[127] Souths contended that Ms Conelius should not receive any lost pay.

[128] I have had regard to the Full Bench decision in B, C and D v Australia Postal Corporation T/A Australia Post [2013] FWC 9293 at [118](b) where it was held:

[129] Subsequent to that Full Bench decision, presiding member Lawler VP determined the quantum to be awarded: 44

[130] Having regard for my reasons in the decision and the submissions of the parties and the authorities on the matter of lost pay detailed in this decision, I consider it appropriate to make an order for the restoration of some lost pay.

[131] Such order will take into account an amount for the remuneration lost, or likely to have been lost by Ms Conelius due to the dismissal. However, consistent with my findings of misconduct at [98], I am satisfied that such remuneration is to be discounted to reflect the matters identified in this decision, and Ms Conelius’ acknowledgement that she had breached the Club’s policies.

[132] I make the following calculations of the notional loss of Ms Conelius as a result of the dismissal:

Less $400 from selling raffle tickets $14,687.66

[133] I consider that a discount of 50% on the calculated loss is appropriate in the circumstances to reflect Ms Conelius’ misconduct on 8 September 2016, together with the manner in which she left the Club following the meeting of 9 September 2016 following the dismissal. I am of the view that the discount of 50% applied cannot ever be said to be an exact science. I have reached a balanced outcome requisite to my findings and reasons in the decision.

[134] I have determined that Souths are to pay to Ms Conelius the amount of $7,343.83 less taxation as required by law. In addition, superannuation on the amount of $7,343.83 shall be paid.

[135] A separate order will issue giving effect to this decision.

Seal of the Fair Work Commission with member’s signature.

COMMISSIONER

 

 1   Exhibit A1, 19.

 2   Ibid.

 3   Ibid, 21.

 4   Ibid, 23.

 5   Ibid, 24.

 6   Ibid.

 7   Exhibit R6, email of 8 September 2016.

 8   Exhibit A1, 30.

 9   Exhibit A2, 9.

 10   PN137-PN138.

 11   PN48.

 12   PN409.

 13   PN412.

 14   PN414.

 15   PN415-416.

 16   PN420

 17   PN422-423.

 18   PN152.

 19   PN153.

 20   PN160.

 21   Exhibit R4, 10.

 22   Ibid, 20.

 23   Ibid, 28.

 24   PN435.

 25  PN437.

 26   PN440-PN444.

 27   PN448-PN451.

 28   PN382.

 29   [1995] HCA 24; (1995) 185 CLR 410 at 465.

 30   Sayer v Melsteel [2011] FWAFB 7498 at [20].

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

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

33 Ibid.

 34   PN104.

 35   PN105-PN106.

 36   PN160.

 37   PN154.

 38   PN449.

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

 40   PN424-PN426.

 41   PN461.

 42   PN82.

 43   PN485.

 44   B, C and D v Australian Postal Corporation T/A Australia Post (C2011/6623) at [22].

 45   Exhibit R6.

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