DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jayne Broadhead
v
Furniture Galore Pty Ltd T/A Furniture Galore
(U2017/6621)

Application for an unfair dismissal remedy – alleged serious misconduct - dismissal harsh and unjust - remedy – reinstatement - continuity of employment and service – payment of lost remuneration.

[1] Ms Jayne Broadhead has made an application pursuant to s.394 of the Fair Work Act 2009 (FW Act) seeking relief from unfair dismissal.

[2] Ms Broadhead was employed by Furniture Galore Pty Ltd T/A Furniture Galore (Furniture Galore). She commenced working for Furniture Galore in January 2008 and has worked at a number of store sites but most recently at the Dandenong store.

[3] Ms Broadhead’s employment was terminated on 4 June 2017 following an incident a number of days earlier with another employee.

Events of 27-28 May 2017

[4] Ms Broadhead says that on 28 May 2017 she arrived at work at 10.00am. The Store Manager, Ms Suzan Balogh also arrived at this time. Mr Jay Bear was also expected at work at 10.00am but did not arrive until noon. 1

[5] Ms Broadhead says that she was assisting a customer with a collection of goods previously purchased through Mr Bear. Ms Broadhead was unable to locate one piece of the order to be collected. She says that Mr Bear was responsible for unloading the delivery truck the day before (which included this order). She was frustrated that Mr Bear had left her in the situation of having to explain to the customer that not all of the goods he had come to collect were there. 2

[6] Ms Broadhead says that when Mr Bear arrived at the store at around noon, she asked him to help her in locating the remainder of the customer’s order. They could not find it and she became frustrated at Mr Bear. She agrees that she said to him that it was just another example of him not doing his job properly and that everything should be stacked together in the one spot. She says that Mr Bear put up his hand and responded that he was “not in the mood”. Mr Bear walked away from Ms Broadhead and she followed him onto the shop floor trying to gain his attention. She agrees that she grabbed him by the wrist and said “Jay, one of these days you will get your comeuppance.” She says that Mr Bear shrugged her off and continued to walk away from her. In her frustration she said him, in a slightly raised voice, “why don’t you just leave, just get out Jay, just go.” 3

[7] Ms Broadhead says the entire incident went for about 15-20 minutes but says she only grabbed hold of Mr Bear for the time it took to tell him he would get his comeuppance. 4

[8] Ms Suzan Balogh provided a witness statement in which she said that she saw Ms Broadhead and Mr Bear head to the store room to locate the missing item. Soon after she saw them return and heard raised voices. She says that Ms Broadhead seemed quite frustrated and she heard her say words to the effect “you can go Jay, just get out.” 5

[9] Ms Balogh says that Mr Bear did not seem to be threatened or worried by the exchange. He walked out of the store but returned and said to Ms Broadhead “one of us will be leaving and it won’t be me.” Mr Bear left for the day and Ms Balogh sent a text message to Mr Dean Callaghan, Operations Manager, about the incident. 6

[10] Ms Balogh says she did not see Ms Broadhead physically grab Mr Bear although Ms Broadhead told her later that she had but that she had only been trying to grab his jacket sleeve. 7

[11] Mr Bear said that on 27 May 2017 there was an altercation between Ms Broadhead, Ms Balogh and himself in relation to a dining buffet that he pulled from an order and sold to another customer. He also sought the assistance of a customer in moving the buffet off the shop floor. 8

[12] On 28 May 2017 Mr Bear says he was late for work because his car broke down. He advised Ms Balogh of this. He says that when he arrived at the store he was “followed around the store being screamed at (no exaggeration) by Jayne [Broadhead] about 3 boxes not being stacked properly, which apparently caused some inconvenience to customers.” 9 Mr Bear says that Ms Broadhead followed him into the despatch area where he was further abused and that he was grabbed by the arm in plain sight of customers. He says the incident went from 15–20 minutes.10

[13] Mr Bear says Ms Broadhead then sent him home saying “GO HOME and don’t ever come back”. 11

[14] Mr Callaghan says that on 28 May 2017 he received a phone call from Ms Balogh saying that Ms Broadhead had been involved in a serious incident with Mr Bear. Ms Balogh said that Ms Broadhead was screaming and yelling at Mr Bear had said to him “you’re going to get what you deserve one day” 12, grabbed Mr Bear’s arm forcing him out the door and told Mr Bear to “GO HOME, and don’t ever come back.”13

[15] Ms Balogh also told Mr Callaghan that Mr Bear was sitting in his car and looked distressed. Mr Callaghan rang Mr Bear who he says was in a distressed state so he told him to go home for the remainder of his shift. 14

Events of 29 May – 3 June 2017

[16] Ms Broadhead says that she worked with Mr Bear on 29 May and 3 and 4 June 2017 without incident.

[17] On 3 June 2017 Ms Broadhead was given a letter from Mr Callaghan. That letter invited her to a meeting with Mr Callaghan on Sunday, 4 June 2017 regarding the incident on 28 May 2017.

[18] Ms Broadhead had gone home from work unwell and at 6.51pm sent Mr Callaghan a text message advising him that she was unable to contact her support person from the Union and that she would like to reschedule the meeting. 15 She says Mr Callaghan did not respond to the text message.16

[19] Ms Broadhead attended work on 4 May 2017. She says Mr Callaghan arrived at the store at around 2.00pm and met with Mr Bear at 3.00pm. Mr Callaghan then approached her at around 3.30pm seeking to have the scheduled meeting. Ms Broadhead explained to Mr Callaghan that she had sent him a text the previous day and that the meeting could not take place as she wanted her support person present. She says that Mr Callaghan did not appear satisfied saying “text, what text, you should have called” and walked away. 17

[20] Shortly before closing time Ms Broadhead says that Mr Callaghan approached her, handed her a two page letter explaining that her employment had been terminated effective immediately and asked her to hand her keys back. 18

[21] Mr Callaghan says that he did not receive the text message from Ms Broadhead on 3 June 2017. He says he tried to have a conversation with her about the 28 May incident on 4 June 2017 but she walked away.

[22] Mr Callaghan says that he then spoke to the Company Director [Mr Cam Durran] who instructed him to terminate Ms Broadhead’s employment immediately due to serious misconduct.

Procedural matters

[23] The application by Ms Broadhead was first set down for hearing on Monday 25 September 2017.

[24] At the allotted time for hearing Furniture Galore was not present. Attempts by my associate to contact the Furniture Galore were not successful. Ms Broadhead requested that the hearing proceed. Ms Broadhead was available, was keen to have the matter dealt with and submitted that Furniture Galore had received adequate notice of the hearing such that its non-appearance should not disadvantage her. For these reasons I proceeded with the hearing. Transcript of the hearing was ordered and Ms Broadhead was advised that it would be forwarded to Furniture Galore.

[25] Following the hearing Furniture Galore contacted my chambers. Mr Dean Callaghan, Furniture Galore’s representative, advised that he had forgotten to put the hearing in his diary and had been attending an opening of a new store when my associate had attempted to contact him. He advised that he meant no disrespect. Furniture Galore subsequently requested that the application be re-opened for the purpose of it presenting its case to the Commission. In the interests of ensuring procedural fairness this was agreed to.

[26] On Monday 9 October 2017 a further hearing of the application took place. Furniture Galore presented its evidence and made submissions. It did not make any application to re-call Ms Broadhead or witnesses who appeared in support of her. It did so with the benefit of transcript from the first hearing day, including the submissions made on behalf of Ms Broadhead. At the conclusion of the hearing I adjourned the matter and advised the parties that I would make my decision as soon as was reasonably practical.

[27] Prior to making my decision it became apparent that Furniture Galore had made no submissions either orally or in writing with respect to remedy should I find Ms Broadhead had been unfairly dismissed. This was so despite having Ms Broadhead’s materials for quite some time including her witness statement in which she clearly articulated the remedy she sought and having access to transcript in which again it was made clear the remedy she sought.

[28] In these circumstances, and again in the interests of procedural fairness, on 13 October 2017 my chambers sent the following email to the parties:

The Commissioner is currently considering her decision in the above matter.

In the circumstances where she may decide that Ms Broadhead has been unfairly dismissed Ms Broadhead has sought, and the Commissioner will consider, if she should be reinstated to the Frankston store of Furniture Galore.

Furniture Galore, at the recent hearing, failed to address the Commission on this issue.

In order to ensure procedural fairness on this issue the Commissioner has decided to re-list the application by Ms Brodhead for hearing in order to receive any submissions from Furniture Galore on the question of reinstatement or compensation as remedy. Ms Broadhead’s submissions are set out in her written submissions and in transcript...

[29] Directions as to the lodgement of any written submissions were also provided. The matter was listed for hearing on 19 October 2017 (the remedy hearing).

[30] Furniture Galore subsequently advised that it would make submissions on remedy and would forward these by the requested time. Not long after this the Commission was advised that Furniture Galore was to be represented in proceedings by a lawyer (for which permission was sought).

[31] On Thursday 19 October 2017 the Commission received submissions and witness statements from the lawyer for Furniture Galore in accordance with the directions. The submissions stated that Furniture Galore wished to cross-examine the Applicant’s witnesses as to matters that went to the merit of the application. Further, the witness statements it provided (further statements of Mr Callaghan and Mr Bear) traversed not just to the question of remedy should I find in Ms Broadhead’s favour, but matters that were covered in the witness evidence given by Ms Broadhead and others at the hearing on 25 September 2017, all of which Furniture Galore was aware of on 9 October 2017. Much of that evidence Furniture Galore filed on the question of remedy was not in accordance with the email from my chambers of 13 October 2017 as to the purpose and limits of re-opening the matter.

[32] At the remedy hearing I granted permission to Furniture Galore to be represented by a lawyer. I was satisfied that the provisions of s.596(2)(c) had been met (Ms Broadhead was represented by her union in the proceedings) and determined, on balance, that I should exercise my discretion and grant permission.

[33] Objection was taken at the remedy hearing to evidence sought to be adduced by Furniture Galore that did not go to the question of remedy should unfair dismissal be established. I ruled that, given the clear limits of the hearing, I would only accept evidence on the question of remedy. The parties agreed that, instead of attempting at short notice to delete parts of the witness statements of Mr Callaghan and Mr Bear, I should not afford evidence that went beyond the scope of the hearing any weight.

[34] Furniture Galore did not, at the remedy hearing, press its request to re-open cross-examination of Ms Broadhead or other witnesses who appeared for her on any matters not associated with reinstatement. Ms Broadhead was re-called for further evidence and Mr Callaghan and Mr Bear gave further evidence on remedy.

Was Ms Broadhead unfairly dismissed?

[35] I am satisfied that Ms Broadhead is protected from unfair dismissal.

[36] Section 385 of the FW 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.

[37] I am satisfied that Ms Broadhead has been dismissed.

[38] I am satisfied that Ms Broadhead made her application for unfair dismissal within the time frame required by the FW Act.

[39] I am further satisfied that the Small Business Fair Dismissal Code does not apply.

[40] Further, I am satisfied that Ms Broadhead’s dismissal was not a matter of redundancy.

[41] It therefore falls for me to determine if the dismissal of Ms Broadhead was harsh, unjust or unreasonable.

[42] Section 387 of the FW 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.

[43] I have therefore considered each of these matters.

Section 387(a) - valid reason

[44] For a reason to be valid it must be “sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced cannot be a valid reason”.¹⁹

[45] In Guillermo (William) Diaz v Anzpac Services (Australia) Pty Limited²⁰ the Full Bench of the Commission found:

[12] …However, we consider that the authorities are clear that s.387(a) requires consideration, in a case where misconduct is the reason for dismissal, first as to whether the relevant conduct occurred, and second, if the conduct did occur, whether it was of sufficient seriousness or gravity to constitute a valid reason for dismissal. In this respect we endorse the analysis in Bista v Glad Commercial Cleaning at paragraphs [34]-[42] in relation to the consideration required by s.387(a).

[13] As was made clear in Bista, assessing whether a particular instance of misconduct is of sufficient gravity to constitute a valid reason for dismissal is not the same thing as considering whether dismissal was a disproportionate penalty for the misconduct. The former is “concerned with whether the conduct in question, considered in isolation, was intrinsically capable of constituting a valid reason for dismissal”. The latter involves taking into account a range of potential mitigating factors, which may include matters such as the employee’s length of service and disciplinary record, and weighing them against the gravity of the misconduct in order to determine whether dismissal was too harsh a penalty. [footnotes omitted]

[46] An instance of misconduct in and of itself does not automatically provide a valid reason for dismissal. In Raj Bista v Glad Group Pty Ltd t/a Glad Commercial Cleaning²¹ Vice President Hatcher found:

[37] There is nothing in the reasoning in Selvachandran to suggest that some minor failing or trivial misdemeanour on the part of the employee could constitute a valid reason for dismissal simply because it was proven to have occurred. Dismissal on such a basis could not be said to be sound, defensible or well founded, and to approach the concept of a “valid reason for dismissal” otherwise would not constitute a practical and commonsense way to ensure that employers and employees are treated fairly.

[47] Ms Broadhead’s employment was terminated because of the incident on 28 May 2017. Whilst Mr Bear said that he had been subject to on-going bullying by Ms Broadhead for some months there was no evidence of this and I have no basis on which to make a finding that such conduct occurred. I have therefore only considered the incident of 28 May 2017.

[48] Ms Broadhead admits that she raised her voice to Mr Bear and that she grabbed him by the wrist, albeit briefly and that she was trying to grab his sleeve jacket. I am satisfied and do find that such conduct did occur.

[49] Ms Broadhead was dismissed for serious misconduct. Furniture Galore says that she assaulted Mr Bear and this justified her dismissal without notice.

[50] I am not satisfied that Ms Broadhead’s conduct can be classified as “assault” as defined in the Crimes Act 1958 (Vic).
[51] The Crimes Act defines assault in s.31(2):

(2) In subsection (1), “assault” means the direct or indirect application of force by a person to the body of, or to clothing or equipment worn by, another person where the application of force is—

(a) without lawful excuse; and

(b) with intent to inflict or being reckless as to the infliction of bodily injury, pain, discomfort, damage, insult or deprivation of liberty—

and results in the infliction of any such consequence (whether or not the consequence inflicted is the consequence intended or foreseen).

[52] There is no evidence that Ms Broadhead had the intention of inflicting or that she was reckless as to infliction of injury, pain etc. Ms Broadhead sought to stop Mr Bear walking away from her. Further, there is no evidence that Ms Broadhead grabbed Mr Bear’s wrist with any degree of force.

[53] There is however little to excuse Ms Broadhead’s conduct. She is an experienced employee of Furniture Galore and has many years of experience in the workforce. Whilst I accept that she was frustrated with Mr Bear and that this had developed over a period of time she should have raised such frustrations with the Store Manager (Ms Balogh) or Mr Callaghan.

[54] It is not acceptable conduct in any workplace to yell at a co-worker even out of frustration and certainly not in front of customers. It is even less acceptable to grab a colleague by the wrist.

[55] I accept the evidence of Ms Balogh that, whilst Ms Broadhead did raise her voice, she was not yelling at Mr Bear. Mr Bear, on the other hand, said Ms Broadhead was “screaming” at him. Ms Broadhead’s evidence that she raised her voice but did not yell accords with that of Ms Balogh. Mr Callaghan’s evidence on this matter is hearsay based on what others said to him.

[56] I consider Ms Broadhead to be a witness of credit. She was honest in giving her evidence of what she had done and accepts that she was wrong. She did not dissemble and was forthright. Ms Broadhead’s evidence that she raised her voice but was not yelling at Mr Bear was supported by Ms Balogh. For this reason I prefer the evidence of Ms Broadhead that she raised her voice but was not yelling at Mr Bear. I do not accept that Ms Broadhead was screaming.

[57] I therefore find that Ms Broadhead raised her voice at Mr Bear and that she grabbed him on the wrist. That she grabbed him for a brief period only is not disputed. I am satisfied, on the evidence of Ms Broadhead and Mr Bear that the entire incident, including looking for the lost item, took about 20 minutes.

[58] There is nothing to indicate that Ms Broadhead had engaged in misconduct in the past (prior to this incident) such that the incident of 28 May 217 might be seen as a part of a pattern of conduct on her part.
[59] Ms Broadhead’s conduct in this matter is not trivial such that it may well warrant some admonishment but I am not convinced it was of such gravity that it provides a valid reason for dismissal.

[60] I am satisfied that the conduct in grabbing Mr Bear does not amount to assault (which would provide a valid reason for dismissal) but was a quick short grab at Mr Bear by Ms Broadhead in an effort to gain his attention as he continued to walk away from her.

[61] The raised voice and grabbing Mr Bear was unprofessional but does not provide a valid reason for dismissal.

[62] The consideration of dismissal by Furniture Galore was not capricious or fanciful or spiteful, There was no error on the part of Furniture Galore in considering such a sanction but it was not sound, defensible or well-founded when the actual conduct is properly considered.

[63] I accept that Furniture Galore acted on the basis of what it considered to be serious misconduct but ultimately the resolution of such a matter is not based on whether the employer thought they were justified in their actions but what conduct the Commission is satisfied occurred.

[64] I therefore find that there was not a valid reason for the dismissal of Ms Broadhead.

Section 387(b) - notified of the reason

[65] Ms Broadhead was advised of the reason for dismissal prior to the decision being taken to dismiss her. This was detailed in a letter from Mr Callaghan given to her on 3 June 2017 advising her of the proposed meeting of 4 June 2017. 22

Section 387(c) - opportunity to respond

[66] Ms Broadhead was not given an opportunity to respond to Furniture Galore before the decision was made to dismiss her. This is a serious breach of the principles of procedural fairness.

[67] I do note that the Company Director [Mr Durran], the person who decided Ms Broadhead should be dismissed, did not provide a witness statement such that his reasons for acting as he did cannot be known.

Section 387(d) - unreasonable refusal by the employer to allow the person to have a support person present

[68] Ms Broadhead was unreasonably refused access to a support person by her employer.

[69] The letter inviting Ms Broadhead to the meeting on 4 June 2017 clearly stated that she could “elect to bring a support person or representative to the meeting.” (underlining in original) Ms Broadhead made such an election and, in a text message sent to Mr Callaghan on 3 June 2017, asked that the meeting be postposed so she could get a support person to attend with her.

[70] While Mr Callaghan says he did not receive the text message he was advised again by Ms Broadhead on 4 June 2017 of the need to adjourn the meeting so she could get her support person. Given that Ms Broadhead and Mr Bear had worked together for a further three days without incident or apparent rancour there was no obvious reason not to grant Ms Broadhead’s request. This is even more so in circumstances where the meeting was scheduled to occur on a Sunday.

[71] In making the decision to immediately dismiss Ms Broadhead, Mr Durran, by his actions, unreasonably refused to allow Ms Broadhead to have a support person with her. Her request was not unreasonable and was in accordance with the letter to her advising her of the meeting; the decision to then dismiss her without any hearing was unfathomable.

[72] In these circumstances it seems to me that the refusal by Furniture Galore to allow Ms Broadhead access to a support person was unreasonable.

Section 387(e) - unsatisfactory performance

[73] Ms Broadhead was not dismissed for performance reasons. This is not a relevant consideration.

Sections 387(f) & (g) - the degree to which the size of the employer’s business would impact on the procedures followed

[74] I appreciate that Furniture Galore is not an employer of substantial size but it is also not a small employer. It has well-structured and developed policies and procedures. It had no excuse for bringing about the dismissal of Ms Broadhead in the manner it did.

Sections 387(h) - any other matters

[75] Ms Broadhead and Mr Bear worked together without incident on the four occasions on which Ms Broadhead worked following the incident including the day of her dismissal. Clearly the management of Furniture Galore did not see the incident of such seriousness that it needed to ensure Ms Broadhead and Mr Bear were not working together.

[76] Given my findings as to valid reason it is apparent that the decision to dismiss Ms Broadhead is disproportionate to the conduct she agrees she engaged in.

[77] Ms Broadhead is aware that her conduct was inappropriate and is remorseful for it. I accept that this is the case.

Conclusion as to harsh, unjust or unreasonable

[78] For the reasons given I am satisfied that the dismissal of Ms Broadhead was harsh, unjust or unreasonable.

Conclusion

[79] I am satisfied that the Ms Broadhead was unfairly dismissed.

Remedy

[80] Ms Broadhead seeks reinstatement. Specifically she seeks reinstatement to the Frankston Store.

[81] Section 390 of the FW Act states:

390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) The FWC may make the order only if the person has made an application under section 394.

(3) The FWC must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and

(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.

Note: Division 5 deals with procedural matters such as applications for remedies.

391 Remedy—reinstatement etc.

Reinstatement

(1) An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:

(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or

(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

(1A) If:

(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and

(b) that position, or an equivalent position, is a position with an associated entity of the employer;

the order under subsection (1) may be an order to the associated entity to:

(c) appoint the person to the position in which the person was employed immediately before the dismissal; or

(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

Order to maintain continuity

(2) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to maintain the following:

(a) the continuity of the person’s employment;

(b) the period of the person’s continuous service with the employer, or (if subsection (1A) applies) the associated entity.

Order to restore lost pay

(3) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.

(4) In determining an amount for the purposes of an order under subsection (3), the FWC must take into account:

(a) 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 reinstatement; and

(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.

[82] Ms Broadhead seeks reinstatement to Furniture Galore but not to the Dandenong store where the altercation with Mr Bear took place and where Mr Bear still works. Rather, she seeks reinstatement to the Frankston store where she has worked in the past and which is closer to her home.

[83] Ms Broadhead’s evidence is that for the majority of time she has worked for Furniture Galore she has been based at Frankston, only going to other stores to provide relief as required. She says that it was only from the beginning of 2016 that she was based primarily at the Dandenong store.
[84] Ms Broadhead says that she does not want to be reinstated to the Dandenong store as she, primarily, would prefer not to work with Mr Bear. Ms Broadhead says that she could work with Mr Bear but accepts it might be uncomfortable. Ms Broadhead is aware that Mr Bear sometimes works at the Frankston store but says this is only when relief is required.

[85] Mr Bear says that, following the incident on 28 May 2017 he did not feel comfortable on the few days he was required to work with Ms Broadhead. He says that Ms Broadhead has not apologised to him for her conduct on 28 May 2017 or acknowledged that she was in the wrong.

[86] Mr Callaghan says that reinstatement of Ms Broadhead to the Frankston store is not viable for commercial or operational reasons. He says that the Frankston store is performing poorly and he will be based there over the two months overseeing its operations. He says that there are concerns for the ongoing viability of the store unless it improves. Further, he says, the store does not require any more staff, particularly given its parlous state. Mr Callaghan also notes that Mr Bear also works at the Frankston store.

[87] Mr Callaghan’s evidence is that he is also concerned as to how Ms Broadhead may conduct herself in the future with other employees. To that extent he says that Ms Broadhead has not stated to management that she would not engage in such conduct again.

[88] For these reasons Mr Callaghan says that reinstatement of Ms Broadhead to the Frankston store would not be appropriate.

[89] I have carefully considered the evidence and submissions of the parties on the question of reinstatement. I am not satisfied that the evidence provides any compelling reasons as to why Ms Broadhead should not be reinstated. Ms Broadhead’s conduct was a “one-off”. There is no evidence of any on-going issues in the workplace and she has worked for Furniture Galore for nine years. As to the complaints that Ms Broadhead had shown no remorse I accept that she did not apologise to Mr Bear on the next occasion that she worked with him and she should have done so. Her conduct was not appropriate and she was aware of this. Further, Ms Broadhead was not given an opportunity to discuss the matter with her employer as her employment was terminated when she requested that the meeting be postponed to enable her to have her support person (her union) present. She can hardly be held accountable for this.

[90] The conduct of Ms Broadhead is not such that there is any basis to find a loss of trust and confidence in her by Furniture Galore. Whilst Mr Callaghan has suggested he could not trust Ms Broadhead to not engage in similar conduct in the future there is no sound or rational basis on which he could reach this conclusion, there is no pattern of past conduct and no basis to take the conduct on 28 May 2017 as indicative of future conduct. As was said in Perkins v Grace Worldwide (Aust) Pty Ltd 23:

the employment relationship is capable of withstanding some friction and doubts. Trust and confidence are concepts of degree. It is rare for any human being to have total trust in another. What is important in the employment relationship is that there be sufficient trust to make the relationship viable and productive. Whether that standard is reached in any particular case must depend upon the circumstances of the particular case. And in assessing that question, it is appropriate to consider the rationality of any attitude taken by a party. 24

[91] Further, I am satisfied that, should Ms Broadhead be reinstated at a store other than Dandenong, her contact with Mr Bear will be minimal. Should they need to work together I am sure store management will monitor the situation and intervene if necessary. I should say on this matter that there are steps that management can take to minimise any tensions between Ms Broadhead and Mr Bear including the provision of mediation to ensure that any residual issues are properly addressed. This aside, my observation of both Ms Broadhead and Mr Bear is that they are mature, sensible adults. I would not expect any rancour arising from the incident should they be required to work together again. Should it be that either requires some additional training I am sure this will be addressed.

[92] I would further note the evidence of Mr Callaghan that he will be working at the Frankston store of the next two months. His presence will ensure he is well placed to manage any issues that might arise in the workplace.

[93] For these reasons I have decided that Ms Broadhead be appointed to an equivalent position to that she held at the Dandenong Furniture Galore store at the Frankston store of Furniture Galore.

[94] Whilst I acknowledge the evidence of Mr Callaghan as to the status of the Frankston store, that provides no reason to not reinstate Ms Broadhead to that store. The store is still functioning with no decision having been taken as to its future. Should the store close Ms Broadhead will be in no worse a position than other staff in the store. The non-existence of a vacancy or the position previously occupied by the applicant for unfair dismissal remedy is not, in and of itself, grounds on which to determine that reinstatement is not appropriate. 25

[95] Ms Broadhead should be reinstated within two weeks’ of the making of the order.

[96] I am satisfied that continuity of Ms Broadhead’s employment and continuous service should be maintained.

[97] I am also satisfied that Ms Broadhead should be paid an amount for remuneration lost as a result of her dismissal. This amount should be equivalent to the remuneration she has lost (wages plus superannuation) less three weeks’ pay. The reduction is made as a consequence of Ms Broadhead’s conduct which was not acceptable. The order to be issued will require the parties to confer on the actual amount payable and report back to the Commission to enable final orders to be issued.

[98] An Order 26 to this effect will be issued with this decision.

COMMISSIONER

Appearances:

J. Ryan for Ms Broadhead.

M. Howard and D. Callaghan for Furniture Galore Pty Ltd.

Hearing details:

2017.

Melbourne:

September 25.

October 9, 20.

 1   Exhibit A3, para 13.

 2   Ibid, paras 16-17.

 3   Ibid, paras 18-24.

 4   Transcript, PN72.

 5   Exhibit A4, paras 15-17 and 19

 6   Ibid 18, 20-23.

 7   Ibid 25.

 8   Exhibit R1.

 9   Exhibit R1.

 10   Ibid.

 11   Ibid.

 12   Exhibit R2.

 13   Ibid.

 14   Ibid.

 15   Exhibit A3, para 36.

 16   Ibid, para 36.

 17   Ibid, para 37-42.

 18   Exhibit A3, para 45.

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

20 [2016] FWCFB 7204.

21 92016) FWC 3009.

 22   Exhibit A3, attachment A.

 23   (1997) 72 IR 186.

 24   Ibid, 191.

 25   Smith v Moore Paragon Ltd (2004) 130 IR 446 [48]–[54].

 26   PR596922.

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