| [2018] FWC 1337 [Note: An appeal pursuant to s.604 (C2017/1936) was lodged against this decision and associated order - refer to decision dated 18 April 2018 [[2018] FWC 2212] for result of appeal.] |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Hayley Bond
v
Wynbob Pty Ltd
(U2017/9124)
COMMISSIONER HUNT |
BRISBANE, 29 MARCH 2018 |
Application for an unfair dismissal remedy.
[1] On 22 August 2017 Ms Hayley Bond made an application for remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act). Ms Bond had been employed by Wynbob Pty Ltd (Wynbob) between 19 October 2015 and 8 August 2017.
[2] At the time of the dismissal, Wynbob owned and operated the Andersens franchise at Tweed Heads. Andersens is a carpet and flooring enterprise, with a franchisor operating a number of stores, and franchisees operating the balance of stores across Queensland and NSW.
[3] Mrs Wyn Green is the director of Wynbob and Mr Bob Green was the operator at the time of the dismissal. Mr Green dismissed Ms Bond for reasons relating to performance and behaviour, leaking confidential information, and also due to alleged disparaging comments made by Ms Bond about him. Ms Bond was summarily dismissed, notwithstanding that a payment of two weeks’ wages was paid to her. 1
[4] Ms Bond submitted that the ‘disparaging comments’ referred to were her reports to the Andersens’ head office of Mr Green’s intoxication and driving under the influence of alcohol. Ms Bond says she made these reports under the whistle-blower’s provision of the Employee Handbook.
[5] Wynbob raised a jurisdictional objection that it is a small business and the dismissal was consistent with the Small Business Fair Dismissal Code (the Code). It is not contested that there were only three employees employed at the time of the dismissal.
[6] Noting that the dismissal was a summary dismissal, in order for the dismissal to be consistent with the Code, the Fair Work Commission (Commission) must be satisfied that the employer believed on reasonable grounds that the conduct of the employee was serious enough to warrant summary dismissal.
[7] On 9 August 2017, Wynbob wrote to Ms Bond as follows:
‘Dear Hayley
Termination of your employment
We refer to our meeting held on 8 August 2017.
As discussed, we have reviewed your performance and behaviour and, regrettably, confirm that your employment will be terminated.
On several occasions you have made disparaging comments about the business and the owner of the business.
Accordingly, we confirm that your employment with us is terminated effective immediately……’
[8] Further, Wynbob responded to Ms Bond’s unfair dismissal application with the following reasons for the termination:
‘1. On a number of occasions, there were repeated requests to not disclose private and confidential information to others outside of the business which she ignored.
2. This continued despite prior warnings of this being detrimental to the business and that it was grounds for immediate termination.
3. The fabricated stories created and spread to a number of people, namely (a) Andersens Head Office (b) Sub-Contracting Installers (c) Associates for Andersens (d) Representatives of Suppliers (e) Adjoining businesses within the trading area that Andersens operates from and (f) Certain Customers.
4. The level of damage caused by these actions has become non-repairable to the point that legal action has commenced.
5. Continued disparaging comments made to both Staff and Customers about the Company and Management.
6. Openly making the statement that “I wish Head Office would hurry up and buy him out (the owner) or that he is too sick to continue” to other staff and Installers on a number of occasions trying to demoralize the business further.
7. Bullying staff and myself both senior in age and experience to the point of them physically and emotionally breaking down when berated by Hayley Bond
8. Her general temperament in how she dealt with instructions given and throwing other peoples mobile phones around.
9. Befriending male associates and requesting that they should only deal with herself and not sharing this information with all concerned.’
Consideration of the Small Business Fair Dismissal Code
[9] Given the reasons provided by Wynbob to dismiss Ms Bond, the Commission need only consider if the Code has been met relevant to ‘Summary Dismissal’, and not ‘Other Dismissal’. This is true when regard is had for the authority in Ryman v Thrash Pty Ltd t/a Wisharts Automotive Services [2015] FWCFB 5264 at [42]. In that matter, the Full Bench determined that despite his employer paying to him an amount equivalent to three weeks’ wages, Mr Ryman’s termination was a summary dismissal, and the relevant consideration under the Code was whether the Code was met relevant to a ‘Summary Dismissal’, not ‘Other Dismissal’.
[10] The relevant part of the Code is as follows:
‘Small Business Fair Dismissal Code
……
Summary Dismissal
It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.’
[11] Throughout the proceedings the parties were informed that the Commission was required to determine if the Code had been complied with. If it had, the application would be dismissed. If the Code had not been complied with, the Commission would then undertake a consideration of s.387 of the Act to determine if the dismissal was harsh, unjust or unreasonable.
[12] A hearing was listed before me on 4 December 2017. Both parties were self-represented. After hearing from the parties I determined that it would be in both parties’ interests if the matter were conducted as a determinative conference.
[13] A further determinative conference was conducted by telephone on 13 December 2017. Mr Green was unable to attend due to a medical condition, however the transcript of the proceedings was provided to him. At this conference, the Commission heard evidence from Ms Bond relevant to her efforts to mitigate, and earnings since the dismissal.
[14] Mr Brian Cooper, CEO of the Andersens franchise group was telephoned and gave evidence. He was asked questions by the Commission and by Ms Bond.
[15] A further determinative conference was conducted by telephone on 14 February 2018. Mr Green confirmed that he had read the transcript of the conference on 13 December 2017, 2 and both parties were provided with the opportunity to ask Mr Cooper any further questions they wished. At the conclusion of the conference I informed the parties the decision was reserved.
[16] Ms Bond’s evidence is that on 17 November 2016, whilst at work, she observed Mr Green showing signs of intoxication such as slurred speech, confusion and forgetfulness in his speech, and being unable to walk properly. Ms Bond became concerned when Mr Green commenced driving the branded company van to Brunswick Heads to perform a measure and quote. She contacted the head office of Andersens to alert them to her concerns.
[17] A person from Andersens’ head office contacted the police. Mr Green was apprehended by police on the road, and to Ms Bond’s knowledge, Mr Green lost his driving license instantly.
[18] By 4 July 2017 it had been the third consecutive week in which Mr Green did not pay the staff wages. Mr Green left the business premises to go to the bank to withdraw the staff’s wages in cash. Ms Bond considered that he appeared ‘very intoxicated’, again with an unsteady walk, slurred speech and exhibiting signs of confusion.
[19] While Mr Green was at the bank, Ms Bond spoke with Mr Cooper and informed him of her concerns. She informed him that she considered Mr Green was drunk on work premises, and stated that this made her feel uncomfortable and unsafe. Mr Cooper informed Ms Bond that he would drive to the premises that afternoon and speak with Mr Green.
[20] When Mr Green returned from the bank he proceeded to the sofa in the kitchenette area and slept for approximately two hours. Ms Bond took a picture of him on her phone and sent the picture by text to Mr Cooper. Mr Cooper attended the premises at approximately 3.30pm that day. Mr Green’s wife was contacted to pick him up and drive him home.
[21] Ms Bond signed an employee handbook on 5 October 2016. Part 11 of the handbook is as follows:
‘11 WHISTLE-BLOWERS
If you believe that the Employer or any of its officers or employees is involved in any form of wrongdoing such as:
○ Committing a criminal offence;
○ Failing to comply with a legal obligation;
○ Endangering the health and safety of an individual;
○ Environmental damage; or
○ Concealing any information relating to the above,
You should, in the first instance, report your concerns to the management or directors of WYNBOB Pty Ltd who will treat the matter with complete confidence. If you are not satisfied with the explanation or reason given to you, you should raise the matter with the appropriate organisation or body, eg the police, the Environment Protection Agency or Work Cover.
You will not suffer any detriment as a result of any genuine attempt to bring to light matters of concern. However, if this procedure has not been invoked in good faith (eg for malicious reasons or in pursuit of a personal grudge), then you may be subject to disciplinary action up to and including termination.’
[22] Ms Bond considered her reporting of the above events to the Andersens’ head office as within the scope of the handbook.
[23] On Thursday, 3 August 2017 Mr Green called a meeting with Ms Bond, Ms Tracy Brace and Ms Tracy Faulks. The meeting was recorded and the transcript is as follows:
BG: ‘Um, just – just a recording that I’m making with a public announcement to the staff, um, on the 2nd August--’
Unidentified Female: ‘Dion?’
BG: --at approximately 1.30 in the afternoon.’
Unidentified Female: ‘It’s alright. Yeah.’
BG: ‘Sorry?’
Unidentified Female: ‘Go on.’
BG: ‘Um – Dion, can we, just – can you do the autograph?’
BG: ‘Um, I’ve got a little bit of drama unfolding. Um, we’re, um, there’s been a breach within us, um, as in referring information to certain parties in Head Office, um, about myself, ah – a lot of it very unfactual, um, to the point where, um, that is a violation of the employment code – whistleblowing, um, but it’s also something that I deal with and I try to be fair to everyone, um – but um, Gatton is actually, ah, aiming to close this store down.’
Unidentified Female: ‘What?’
BG: ‘And all I can say is that, ah, someone, somewhere, has been telling some fibs, untrue, and ah, I’m having to fight a battle on it, ok? So what happens from this point forward? Um – I’m not going to discuss it with any staff because I physically cannot trust anyone. Ahh – if you have concerns, do not confer with yourselves or anyone from Head Office. Um, that is a strict instruction – um, if or when I do find out, which I will do because there’s gonna be statements and all that – um, that person is possibly, instant dismissal. Um, unless they want to come to me in private and just say, ‘Look, that this is how I read it and I apologise’, it would throw a huge weight in their favour. Um, but anyway, um, I would ask that no-one discusses anything outside of these four walls unless they want to discuss it with me to find out what’s going on, um, and uh, I will keep you up to date as it legally unfolds from this point forward. Ah – who knows where, when or why – if it ever does happen, if it doesn’t happen. But uh, I just wanted to uh, let you all know where we’re sitting, and, um, I’ll be passing this information over to our lawyers. Okay thankyou. Sorry for the bombshell!’
Unidentified Female: ‘Seriously? Can they close down the store?’
BG: ‘Mm-hm.’
Unidentified Female: ‘How? You own it!’
BG: ‘No, I own--’
Unidentified Female: ‘The franchise?’
BG: ‘The name is theirs, and always is theirs.’
Unidentified Female: ‘Yeah? I don’t know anything about franchise contracts or anything.’
BG: ‘Well.’
[24] Ms Bond was on annual leave the next day, together with Monday, 7 August 2017. She attended for work on 8 August 2017 and worked her usual hours. At or around her finishing time of 3.30pm, Mr Green requested she meet with him in his office. Ms Faulks was in attendance as a witness.
[25] Mr Green stated to Ms Bond that the contracted carpet installer, Mr Phillip D’Agostino, had reported to Mr Green that Ms Bond had repeated the conversation of 3 August 2017 to him, to the effect that Andersens’ head office was going to close the store down and take it over. Mr Green asked Ms Bond what her thoughts on that were, and Ms Bond responded that she had not said anything at all to Mr D’Agostino.
[26] Ms Bond’s evidence is that Mr Green stated that he had a signed statutory declaration from Mr D’Agostino swearing that Ms Bond had said these things to him. Ms Bond responded that assertion was a ‘lie’ because she had not spoken with Mr D’Agostino. Mr Green then informed her that she was instantly dismissed. 3
[27] Mr Green’s evidence was that Ms Bond had been a long-term unemployed person, and Wynbob considered merit in employing her. Ms Bond has case workers to assist with her transition from unemployment to employment.
[28] Approximately one year into her employment, Mr Green considered that after addressing some issues with her she became vindictive towards management and made the workplace unpleasant.
[29] Mr Green stated that he suffers from a medical condition called ‘Dumping Syndrome’ related to recent bypass surgery, following which he also developed stomach ulcers and peritonitis. These conditions cause fatigue, and a rest in a lying-down position is required, particularly after eating or strenuous work.
[30] Mr Green considered that the photograph taken of him asleep on the lounge, and allegations about his intoxication were circulated to Andersens’ head office by Ms Bond, resulting in significant distress and causing him to feel uncomfortable within his own workplace. In questioning from the Commission, Mr Green was not aware that Ms Bond had taken the photo of him asleep on the lounge until the photograph was filed in the Commission as part of these proceedings. 4
[31] Mr Green provided a letter from a neurologist to confirm that he suffers from a medical condition that may present similar effects to those of inebriation.
[32] Relevant to the event of Mr Green having driven a branded van a minimum of 30 minutes 5 whilst intoxicated, on questioning from the Commission Mr Green confirmed that he had been stopped by the police and he had recorded a blood alcohol reading of 0.11. His licence was suspended in NSW, but on his evidence he was allowed to continue driving in Queensland.
[33] During the conference it became apparent that Mr Green determined that Ms Bond had not observed him intoxicated before he left the Tweed Head premises in the vehicle. He had not seen her before he drove off in the vehicle. It was Ms Bond’s evidence that she had seen him, and that is why she contacted Andersens’ head office.
[34] Mr Green’s evidence was that he would have preferred that if his employee(s) considered him to be intoxicated whilst driving, they should have contacted his wife, a director of Wynbob, and Mrs Green would have contacted him to advise, “You’ve been notified as intoxicated. Get off the road.” 6
[35] Mr Green’s evidence was that until Ms Bond made her application for unfair dismissal, he wasn’t aware that she had reported her concerns to Andersens’ head office. 7 Accordingly, it could not have formed one of the reasons for the dismissal.
[36] Relevant to concerns that Mr Green had leading up to 3 August 2017, and reports being made to Andersens head office, the following is pertinent: 8
‘THE COMMISSIONER: So when met with your staff on 3 August to - and we've got the recording. We know exactly what was said - you knew, didn't you, that Ms Bond was the one reporting concerns to head office?
MR GREEN: No, I didn't.
THE COMMISSIONER: What did you know?
MR GREEN: At the time I knew someone was doing something and I did mention in that recording, "I don't know who it is, but I will find out."
THE COMMISSIONER: What caused you to have the meeting and - - -
MR GREEN: Prior to that?
THE COMMISSIONER: Yes.
MR GREEN: Because I was asleep and Brian Cooper came in to find out what's going on. There was leakage.
THE COMMISSIONER: Well, that wasn't that close in time, was it? What caused you on 3 August to tell your employees that if you discover they're reporting things to head office, they'll he dismissed and also that your business was under threat of being closed down?
MR GREEN: Okay. There was conversations that actually took place from when I was asleep and they kept on going out. Just various sort of things. I thought I can't work out where they're going from and head office actually told me that the staff had reported it.
THE COMMISSIONER: Who from head office told you that?
MR GREEN: Brian Cooper.
THE COMMISSIONER: Right. When is this photo taken?
MR GREEN: I guess the day that I was asleep.
THE COMMISSIONER: When is that? Do we know?
MS BOND: The Tuesday. 4 July, I think it was. I've stated it in my paperwork.
THE COMMISSIONER: So it's 4 July.
MR GREEN: I guess, yes.
THE COMMISSIONER: There is the visit from Mr Cooper, the photo taken.
MS BOND: Yes.
THE COMMISSIONER: Then what happens over July, Mr Green?
MR GREEN: Okay. Well, then I was woken up. The staff said, "There's someone out in the shop to see you," so I was woken up and I went out there, and I noticed it was Brian Cooper. I had no knowledge of him being there and I was still sort of half asleep. Then we went in to have a meeting and talked about, you know, my behaviour, which was quite strange; unannounced. He told me he was shooting through from Lismore, but Hayley had actually rang him up at Gatton to come down and - yes.
It was took me a couple of minutes to get my faculties together and I made a cup of coffee, and we sat down and we had a meeting, yes, but this meeting was more about breaches that Hayley had actually put in about me from time ago and they said, "We're going to close you down."’
[37] On 7 August 2017 Mr Green attended the workplace. His evidence was as follows: 9
‘MR GREEN: I came to work on the Monday and they said guess what the bombshell was that we heard, and I said go on, and they said Phil walked in on the Saturday and said Andersens are wanting to close you down, and I said how - pardon the pun - how in the hell would have he found out, we only had the meeting on Thursday, and he said, a little birdie told me. And I thought well the only thing that could have happened, because Hayley was away on holidays on the Friday, but there was a window of space from when she knocks off work, and she used to communicate with him out the back quite regularly, and that would have been the first thing that was said. Then he has come in on the Saturday and said well guess what I know. And I said you're kidding me, and he said yes, the whole town probably knows by now.
THE COMMISSIONER: So you learn on the Monday that he has reported that he knows on the Saturday?
MR GREEN: Yes.
THE COMMISSIONER: When do you then speak with him?
MR GREEN: On the Monday.
THE COMMISSIONER: Tell me more about that conversation?
MR GREEN: First of all he said to me a little birdie told me, and I said come on, who else knows about it, and he finally, after a number of questions which I can't recall what I was asking, but he said okay, it was Hayley, and Hayley ended up saying - she always continually said things that I did not want to know about, and he said I wish she would F-up on telling me all these things, he said, it's got nothing to do with me; this is my livelihood, this is where I need to be, and I can rest assured I don't care about what's going on here, but she keeps on telling me all the ins and outs of everything. So that was, to me, enough information to confirm - yes, what was said. But he had warned her, or said in his mind, it's none of my business; I don't care. But they quite often - and it was funny, you know - when Phil used to come in of an afternoon to load up for the next day, Hayley would be straight out the back having a cigarette with him and gas-bagging and swapping notes, and that was pretty much every day. So it was like catch up on the gossip. But I mean, people are entitled to smoke at work, I guess, but it was like clockwork: as soon as she heard his van pull in she'd be out there talking to him.’
[38] Mr Green’s evidence was that when he spoke with Mr D’Agostino on 7 August 2017, Mr D’Agostino had stated that he would be prepared to write a statement to that effect. Mr Green met with Ms Bond on 8 August 2017, and it was his evidence that he said that Mr D’Agostino was prepared to write a statutory declaration, not that he had actually done so. 10
[39] During the conference I inquired of Mr Green when he concluded that Ms Bond would need to be dismissed. 11
‘MR GREEN: On that afternoon - on the Monday afternoon.
THE COMMISSIONER: What time did Ms Bond start on Tuesday?
MR GREEN: Why did I - - -?
THE COMMISSIONER: What time did Ms Bond start work on the Tuesday?
MR GREEN: 9 o'clock.
THE COMMISSIONER: And you had a meeting with her at 3.30?
MR GREEN: Yes. I needed to confer, finalise, work out her pay entitlements and speak to Phil - dot my i's and cross my t's to make sure - - -
THE COMMISSIONER: Well you'd spoken to Phil on the Monday.
MR GREEN: Yes, that's right; I spoke to him on the Monday and then I spoke to him again on the Tuesday to see if anything had changed, and then I spoke to the girls to organise how much was owed to her, get the pay ready, and then I invited one of the Tracy's in as a witness, and that was about 3 o'clock, because Hayley was serving customers. You've got to sort of grab a time when she's available.
THE COMMISSIONER: So you concluded on the Monday afternoon that she needed to be summarily dismissed, but you allowed her to work for a further six hours on the Tuesday?
MR GREEN: Well put it this way, I was pretty well convinced on the Monday that that was it. I needed to follow up and double-check everything on the Tuesday.
THE COMMISSIONER: I'm just not sure, Mr Green, what you were double-checking, other than how much you needed to pay her to dismiss her. I asked you earlier when did you conclude that she needed to be dismissed. You said Monday afternoon after speaking with Mr D’Agostino.
MR GREEN: I wasn't working on the Saturday. That's when the information was transferred over. On the Monday I was told that information. I spoke to the layer later that day, towards the end of the day, and then I spoke to him the next day to confirm the finer points of everything. Then I thought well - at probably about midday Tuesday was when I made the decision that that was it, and so therefore I got one of the girls to organise her final pay - yes, and make sure that we were doing everything by the book as far as, you know, the pay entitlements.
THE COMMISSIONER: I'm concerned, Mr Green, that your evidence is shifting.
MR GREEN: Into - - -?
THE COMMISSIONER: I'm concerned that your evidence is shifting from your earlier answer that you concluded it by Monday afternoon that you'd satisfied yourself to now Tuesday at lunchtime.
MR GREEN: No, well personally - - -
THE COMMISSIONER: I mean, you're presented now with the difficulty, aren't you, that Tuesday you required Ms Bond to work, when you'd formed the view by Monday afternoon that she had been the one to report to Mr D’Agostino that there were concerns with the business. In light of the fact that you've had her work for six hours or so, or thereabouts, on the Tuesday, isn't there some difficulty for you then?
MR GREEN: Well it was hearsay that was said on the Saturday. I had to confirm that on the Monday, and Phil - - -
THE COMMISSIONER: Which you did.
MR GREEN: Yes.
THE COMMISSIONER: And your evidence before was that you were satisfied by Monday afternoon that she was - - -
MR GREEN: Yes, when I saw Phil.
THE COMMISSIONER: Yes.
MR GREEN: Yes, and then I had to speak it over with my wife that night to say this is what was going on, and then the Tuesday I had to sort out the final pays and the pros and cons of her entitlements. So yes - and I mean, we were all doing bits and pieces through the day which keeps us occupied, but it was arranged about 2 o'clock to draw up her wages, the letter of termination and then have the meeting. Yes, I just needed to double-check everything Tuesday morning, because it's a serious sort of thing that you can't go off half-cocked, so I had to double-check all the facts were right, even though I wasn't directly involved.
THE COMMISSIONER: What additional facts did you check were right on Tuesday?
MR GREEN: Well the layer actually told the staff that is what was happening, and I didn't get to see him till the Monday afternoon to quiz him and that's where he expanded on a lot of the story. And I thought well that's near enough, I've now got the info from him and from the staff, so then it was, on the Tuesday, that's when I sort of made the grounds to see how long she was working there, her entitlements and draw the letter up and, yes, discuss it with her.’
[40] During the conference of 4 December 2017, Mr Green asserted that Ms Bond had been engaged in secondary employment, and he had held discussions with her about this. Ms Bond denied that she was engaged in the activity asserted by Mr Green. This issue was not raised by Wynbob with any reasonable proximity to the summary dismissal, and accordingly any concerns that Mr Green may have had relevant to his suspicions of secondary employment cannot form a basis for the reasons for the dismissal and have not been taken into account in this consideration.
Evidence of Ms Brace
[41] Ms Brace gave evidence that the meeting of 3 August 2017 was recorded with the consent of those present. Those present had been advised that as a direct result of the leaking of sensitive information, Andersens’ head office was taking action to close the store. Those in the meeting were being told this information in confidence, and it was not to be discussed with anybody outside of the business.
[42] Two days later, the contracted carpet layer, Mr D’Agostino informed Ms Brace and Ms Faulks that he had heard that Andersens was going to close the store.
Evidence of Ms Faulks
[43] Ms Faulks’ evidence was that she attended the meeting of 3 August 2017 and was instructed not to discuss the issues with anybody who was not in attendance. She stated, “We were later advised that we could share the information with our spouses or partners”.
[44] On 5 August 2017 Mr D’Agostino came into the shop and revealed that he was aware of information from the meeting held two days earlier.
Evidence of Mr D’Agostino
[45] Mr D’Agostino was permitted to give evidence by telephone during the determinative conference on 4 December 2017. He stated the following relevant to a conversation he had with Ms Brace and Ms Faulks on 5 August 2017: 12
‘MR D’AGOSTINO: Well when I came in the back doors I was in the back room and I was walking through and I heard Tracey and Tracy overhearing - or they were talking about it, and virtually I walked in the door and I said: what's going on, I heard the place is closing down; and that was virtually the last I heard of it, and they looked at me and I said, well, you know, I overheard you talking in the back room, and that was it really. Hayley Bond wasn't there. Bob Green wasn't there. There was only the two Tracy's.
THE COMMISSIONER: So it's your evidence that you heard both Tracy's discussing the potential for the store to close down?
MR D’AGOSTINO: Yes.
THE COMMISSIONER: And you then said I hear the store is closing down?
MR D’AGOSTINO: Yes. I just walked in and I said to them I heard the store was closing down, and that was all I said.
THE COMMISSIONER: Did any of the women respond to you?
MR D’AGOSTINO: They just looked at me and said where did you hear that, and I just went, I just overheard it. I didn't say where I heard it from or who I heard it from.
THE COMMISSIONER: Where would you have been located when you overheard them?
MR D’AGOSTINO: I was in the back warehouse coming in through the door, the back door. It was wide open, which is why (indistinct).
THE COMMISSIONER: When you were asked by Mr Green on the following Monday, what's the effect of that conversation - who said what?
MR D’AGOSTINO: Well Mr Green came up to me when I was unloading my van, and came up to me and said, I've heard you heard that our store was being closed down. I said yes, I did. And he goes who told you. I said no one told me. I said I overheard the two Tracy's talking, I said, and that was all there was to it. And then it went from there; it was like, well Hayley told you. I said no - no, Hayley didn't tell me. I said no one told me. But he wouldn't take that for an answer, and next thing he just turned around and he walked off.
THE COMMISSIONER: So it's your evidence that you told Mr Green that you had overheard the two Tracey's talking?
MR D’AGOSTINO: Yes.’
[46] In cross-examination, Mr Green put to Mr D’Agostino the following: 13
‘MR GREEN: My version was, as you've rightly said I wasn't there on the Saturday; I came in on the Monday. The girls advised me that you had actually walked in and said that on the Saturday that you heard the place was being closed down. I then quizzed you on the Monday to say what's going on, and you just said oh, look, everyone knows about it by now, and then you actually stated to me that you'd wished Hayley - once I finally found out who you were talking about, which you were reluctant to talk about, you finally said that you wished Hayley would shut her mouth up, she keeps telling you all these bits and pieces; and then you did make comment about: I can't understand why she was doing that because she's killing her own job as well as killing the business. Do you remember that?
MR D’AGOSTINO: No. I don't know where you got that information from, Bob, and as I said, I didn't speak to you, you came up and you spoke to me, and the conversation that you had with me - because I don't have conversations with you - I just said I'd heard it through Tracey along with Tracy, and that's all there was to the story. There was nothing to do with Hayley.
MR GREEN: So you - - -
MR D’AGOSTINO: There was nothing to do with Hayley, because Hayley never mentioned a thing.
MR GREEN: So you're denying that you said to me you wish she would have shut her mouth up?
MR D’AGOSTINO: I've never said that. Why would I say that about Hayley?’
Evidence of Mr Cooper
[47] Mr Cooper gave evidence that for the last 12 years or so, Mr Green has worked at the franchised Andersens store at Tweed Heads. He was not a director of Wynbob Pty Ltd, but Mrs Green is. Franchisees often have discussions with Area Managers. Mr Paul Donaldson is the Area Manager covering the Tweed Heads store.
[48] In July 2017 Ms Bond sent to Mr Cooper a photo of Mr Green asleep at work. On receipt of the photograph, Mr Cooper ‘dropped everything’ to drive to the store to speak with Mr Green. When Mr Cooper arrived at the store he formed the view that Mr Green was intoxicated. 14
[49] Mr Cooper had with him a breathalyser manufactured to Australian Standards, and he requested Mr Green be breathalysed. Mr Green refused to be tested. Mr Cooper contacted Mrs Green, and she stated that she was on her way. When she arrived she stated that she would be driving Mr Green home.
[50] Mr Cooper gave evidence that this caused the franchising head office various concerns. He held concerns relevant to workplace health and safety, and he also took into account Mr Green’s earlier actions of driving a branded vehicle whilst intoxicated.
[51] According to Mr Cooper the franchise agreement entered into between the parties afforded Mr Cooper a right to attend the business premises at any time, without the requirement for an invitation.
[52] Mr Cooper stated that Ms Bond did not raise concerns with him directly, other than the photograph and conversation of 4 July 2017. He encouraged Mr Donaldson to speak with Ms Bond, and if she had any further concerns, it was his view she should seek advice of ‘Fair Work’ or obtain her own advice.
[53] During the conference of 13 December 2017 Mr Cooper gave evidence that the franchise agreement had been terminated by the franchisor. Prior to the termination taking effect, a breach notice had been issued by the franchisor nominating four breaches. One of the breaches related to the franchisor’s concern regarding Mr Green’s intoxication whilst driving a branded vehicle. The franchisor required a remedy which included Mr Green committing not to drink alcohol.
[54] On receipt of Ms Bond’s photo of Mr Green asleep on the lounge, and Mr Cooper’s assessment of Mr Green as being intoxicated, this caused the franchisor to commence actions to terminate the franchising agreement.
Determination of whether dismissal was in accordance with the Code
[55] The Full Bench in Ryman v Thrash Pty Ltd t/a Wisharts Automotive Services 15 considered the proper application of the ‘Summary Dismissal’ section of the Code. The Full Bench’s conclusions were as follows:
‘[38] We therefore consider that the “Summary dismissal” section of the Code applies to dismissals without notice on the ground of serious misconduct as defined in reg.1.07.
[39] To be clear, nothing stated above is to be taken as suggesting that in relation to such a dismissal it is necessary for the Commission to be satisfied that the serious misconduct which is the basis for the dismissal actually occurred in order for the dismissal not to be unfair. As was explained in Pinawin T/A RoseVi.Hair.Face.Body v Domingo:
“[29] … There are two steps in the process of determining whether this aspect of the Small Business Fair Dismissal Code is satisfied. First, there needs to be a consideration whether, at the time of dismissal, the employer held a belief that the employee’s conduct was sufficiently serious to justify immediate dismissal. Secondly it is necessary to consider whether that belief was based on reasonable grounds. The second element incorporates the concept that the employer has carried out a reasonable investigation into the matter. It is not necessary to determine whether the employer was correct in the belief that it held.”
[40] Whether the employer had “reasonable grounds” for the relevant belief is of course to be determined objectively.
[41] In summary, drawing on the conclusions stated above and the ratio in Pinawin, we consider that the “Summary dismissal” section of the Code operates in the following way:
(1) If a small business employer has dismissed an employee without notice - that is, with immediate effect - on the ground that the employee has committed serious misconduct that falls within the definition in reg.1.07, then it is necessary for the Commission to consider whether the dismissal was consistent with the “Summary dismissal” section of the Code. All other types of dismissals by small business employers are to be considered under the “Other dismissal” section of the Code.
(2) In assessing whether the “Summary dismissal” section of the Code was complied with, it is necessary to determine first whether the employer genuinely held a belief that the employee’s conduct was sufficiently serious to justify immediate dismissal, and second whether the employer’s belief was, objectively speaking, based on reasonable grounds. Whether the employer has carried out a reasonable investigation into the matter will be relevant to the second element.’
[56] Regulation 1.07 of the Fair Work Regulations 2009 states:
‘1.07 Meaning of serious misconduct
(1) For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.
(2) For subregulation (1), conduct that is serious misconduct includes both of the following:
(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;
(b) conduct that causes serious and imminent risk to:
the health or safety of a person; or
the reputation, viability or profitability of the employer’s business.
(3) For subregulation (1), conduct that is serious misconduct includes each of the following:
(a) the employee, in the course of the employee’s employment, engaging in:
(i) theft; or
(ii) fraud; or
(iii) assault;
(b) the employee being intoxicated at work;
(c) the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.’
[57] The reasons given to Ms Bond for her dismissal were two-fold: that she had engaged in behaviour that was damaging to the business, including making disparaging comments about Mr Green; and that her performance and behaviour had been reviewed, resulting in termination. A longer and more detailed list of reasons was submitted as part of Wynbob’s Employer’s Response and these were raised during the course of these proceedings.
[58] As set out in Regulation 1.07 above, serious misconduct includes conduct which causes a serious and imminent risk to the reputation, viability and profitability of the employer’s business, together with wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment. Mr Green had concerns about the sharing of information with the contractor, and the making of disparaging comments about the business and himself, which he considered to be causing damage to the business, and to himself on a personal and professional basis. Mr Green believed that the reports of his behaviour made by Ms Bond, which he submitted were misinformed, also did significant damage.
[59] Further, Mr Green considered that Ms Bond’s behaviour and secondary employment (which was denied by Ms Bond) was also causing damage to the business’ reputation.
[60] It is clear that Mr Green had a number of concerning matters in July and August 2017 which required his attention. On Mr Cooper’s evidence, Andersens had earlier issued a breach notice to Wynbob relevant to Mr Green’s drink-driving incident. Mr Green had committed to not drinking alcohol, and as a result of Mr Cooper’s attendance on the premises of 4 July 2017, Andersens concluded that Mr Green had not met the requirements of the promised remedy.
[61] Mr Green considered, and with the support of his medical practitioners believed, that he might be falsely accused of drinking alcohol excessively, when he was suffering from a medical condition. He no doubt held a concern that somebody employed by him was reporting concerns to Mr Cooper, which he considered to be undermining him and putting his business at risk.
[62] He did not know, however, who this might be. At the meeting of employees on 3 August 2017, he indicated that he would make relevant inquiries to find out who was ‘leaking’ such information to Andersens.
[63] On the evidence before the Commission, Mr Green did not know at the time of the dismissal that Ms Bond had taken a photo of him which he considers invasive and embarrassing. Nor did he know that it was Ms Bond who had had reported her concerns of him driving while intoxicated to Andersens, who then reported the incident to the police. These were matters that came to his attention as a result of these proceedings.
[64] Accordingly, in determining if Mr Green believed that Ms Bond had engaged in conduct sufficiently serious to warrant summary dismissal, the only event that can be taken into consideration is Mr Green’s belief that Ms Bond had revealed sensitive information to Mr D’Agostino.
[65] I am not satisfied that Mr Green believed that Ms Bond had engaged in conduct sufficiently serious to warrant summary dismissal. I will deal shortly with the conversation Mr Green had with Mr D’Agostino on 7 August 2017. As a result of the conversation with Mr D’Agostino, Mr Green concluded by 7 August 2017 that Ms Bond’s employment needed to end, but he then allowed her to work a full day on 8 August 2017 before he summarily dismissed her.
[66] While I accept that Mr Green wished to administratively prepare for the dismissal by having Ms Bond’s termination payment ready, it does not explain why, when he had concluded by Monday that dismissal must be effected, he allowed Ms Bond to work for approximately six hours on Tuesday. Mr Green’s evidence was that the dismissal had been pre-determined, and it was a matter of lining up the ‘ducks’ to give effect to the termination. 16
[67] Mr Green’s evidence was that he informed Ms Bond during the meeting of 8 August 2017 that there had been a leak of the information from the meeting on Thursday, and regrettably, he had to let Ms Bond go.
[68] I am satisfied that by no later than 7 August 2017, Mr Green formed a view that Ms Bond had defied his instructions and revealed confidential information to Mr D’Agostino. He determined on 7 August 2017 that Ms Bond’s conduct was sufficiently serious to warrant the termination of her employment. By his actions, he did not, upon forming that view, then put into action the dismissal. He continued to allow Ms Bond to work approximately six hours.
[69] In requiring Ms Bond to work approximately six hours on 8 August 2017, Mr Green was not awaiting an opportunity to put to Ms Bond the allegations; he had already formed a view that her employment needed to end.
[70] For the reasons above, I am satisfied that Mr Green considered that Ms Bond’s conduct was sufficiently serious to warrant the termination of her employment, but not summary dismissal. The opportunity was lost to Mr Green by virtue of requiring Ms Bond to work a substantial number of hours on 8 August 2017 when he had formed that view on 7 August 2017.
[71] If I am incorrect on the matter above, it is necessary to determine the question that if Mr Green believed that Ms Bond had engaged in conduct sufficiently serious to warrant summary dismissal, was his belief based on reasonable grounds?
[72] The question of whether the belief of Mr Green was based on reasonable grounds is to be determined objectively. It is also relevant to consider whether Mr Green had carried out a reasonable investigation into the matter resulting in Ms Bond’s immediate dismissal.
[73] In relation to the requirement for reasonable grounds and the need for a reasonable investigation, the Full Bench in Pinawin said the following:
‘Acting reasonably does not require a single course of action. Different employers may approach the matter differently and form different conclusions, perhaps giving more benefit of any doubt, but still be acting reasonably. The legislation requires a consideration of whether the particular employer, in determining its course of action in relation to the employee at the time of dismissal, carried out a reasonable investigation, and reached a reasonable conclusion in all the circumstances. Those circumstances include the experience and resources of the small business employer concerned.’ 17
[74] There is a significant factual contest between Mr Green and Mr D’Agostino as to what was said between them on 7 August 2017. Mr D’Agostino’s evidence was that Mr Green approached him while he was unloading his van. Mr Green asked him how he knew, and on Mr D’Agostino’s evidence, he stated, “…no one told me. I said I overheard the two Tracey’s talking… and that was all there was to it...” 18
[75] Mr D’Agostino’s evidence was that Mr Green suggested to him that Ms Bond had told him, to which he responded, “…no, Hayley didn’t tell me. I said no one told me. But he wouldn’t take that for an answer, and next thing he just turned around and he walked off”. 19
[76] Mr D’Agostino’s evidence was more consistent on this issue, as he stated that no-one had ‘told him’, but that he had overheard the conversation between Ms Brace and Ms Faulks. It was Mr D’Agostino’s account that Mr Green had concluded that it must have been Ms Bond who had told him.
[77] Mr Green’s evidence was that Mr D’Agostino reluctantly agreed that Ms Bond had been the one to tell him, and Mr D’Agostino had stated that he “wished Hayley would shut her mouth up”. In cross-examination Mr D’Agostino denied the conversation.
[78] It is a very difficult factual contest to determine. If Mr Green is correct in his version of the conversation, the effect of what Mr D’Agostino stated to him on 7 August 2017 was that Ms Bond had deliberately, and in defiance of Mr Green’s directions, revealed to him the conversation of 3 August 2017.
[79] If Mr Green is not correct in his version of the conversation, and Mr Green simply concluded on his own that it must have been Ms Bond who informed Mr D’Agostino of the conversation, Mr Green could not have held a belief that Ms Bond’s employment needed to end immediately as it could not have been based on reasonable grounds.
[80] Mr D’Agostino’s evidence conflicts with that of Mr Green on multiple topics. Mr D’Agostino did not concede that he had offered to provide a statutory declaration stating that Ms Bond had been the source of the information he had heard about the store’s closure. Mr D’Agostino also disputed the contents of the conversation he had with Mr Green on 7 August 2017. Finally, Mr D’Agostino provided the following correspondence to the Commission, two days prior to the determinative conference on 4 December 2017:
‘The first correspondence I have had on any of this was last Monday 27th November 2017 @ 1.25pm, when Mr Green messaged myself and demanded a statement against Hayley Bond saying she shared confidential information. I refused to give him this as she did not do any such thing.
I have spoken to Hayley Bond this evening about my inability to attend and agreed to write a statement of which she can bring on Monday as 24 hours is just not enough notice.
I wish you would of called myself as Mr Green is not a reliable source, when providing information.’
[81] With regard to a reasonable investigation relevant to his concerns, Mr Green had already made the decision to dismiss Ms Bond before he inquired of her whether she had informed Mr D’Agostino of the conversation of 3 August 2017.
Determination of the Code
[82] I determine that on 7 August 2017 Mr Green made a decision that he would terminate Ms Bond’s employment because he considered that she had informed Mr D’Agostino of the conversation of 3 August 2017. He concluded that there was a person acting against the respondent’s best interests, and he determined that the person was Ms Bond.
[83] He elected to have Ms Bond work for the majority of her shift on 8 August 2017 before he summarily dismissed her.
[84] With respect of the inquiry made by Mr Green to Ms Bond, this was perfunctory, and despite Ms Bond’s denials, Mr Green had already put in train actions to dismiss her from her employment. He had concluded to do so before he met with her on 8 August 2017 at approximately 3.30pm.
[85] As stated above, I am satisfied that Mr Green considered that Ms Bond’s conduct was sufficiently serious to warrant the termination of her employment, but not summary dismissal. The opportunity was lost to Mr Green by virtue of requiring Ms Bond to work a substantial number of hours on 8 August 2017 when he had formed that view on 7 August 2017.
[86] As to the determination of whether Mr Green’s belief was based on reasonable grounds, I must weigh the evidence surrounding the conversation between Mr Green and Mr D’Agostino on 7 August 2017. In the face of such vehement opposition, as set out above at [80] by Mr D’Agostino to Mr Green’s assertions, and absent any successful challenge to Mr D’Agostino’s evidence, Mr D’Agostino’s evidence can generally be accepted. Mr Green may indeed have put to Mr D’Agostino his hypothesis that Ms Bond was the source of the information leak. However, I am not persuaded that Mr D’Agostino implied or alluded to that suggestion. The most plausible scenario on the evidence before me is that Mr Green formed the view that Ms Bond had breached his request for confidentiality on his own, as mere conjecture. Therefore, he had no reasonable basis for believing that Ms Bond’s conduct warranted summary dismissal.
[87] Accordingly, I am not satisfied Ms Bond was dismissed in accordance with the Code and Wynbob’s jurisdictional objection is dismissed.
Harsh, unjust or unreasonable
[88] 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:
‘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.’
[89] The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd20 by McHugh and Gummow JJ as follows:
“.... It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”
[90] I am under a duty to consider each of these criteria in reaching my conclusion.21
[91] I will now consider each of the criteria at s.387 of the Act separately.
Valid reason - s.387(a)
[92] One of the considerations of s.387 is whether Wynbob had a valid reason for the dismissal of Ms Bond, although it need not be the reason given to the applicant at the time of the dismissal.22 The reasons should be “sound, defensible and well founded”23 and should not be “capricious, fanciful, spiteful or prejudiced.”24
[93] Wynbob is entitled to request the Commission consider information that has come before the Commission subsequent to the dismissal, even if it was not within the knowledge of Wynbob prior to the dismissal on 8 August 2017. This is so by virtue of the authority in Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-378.
[94] Relevant considerations here include:
(a) Mr Green’s concern that it was Ms Bond who reported to Andersens head office his intoxication whilst driving a branded vehicle;
(b) Mr Green’s embarrassment in being photographed whilst asleep on the couch in the premises when he stated that he was feeling unwell, and Mr Cooper concluding (incorrectly, in Mr Green’s submission) that he was intoxicated in the workplace;
(c) Mr Green’s concerns as to Ms Bond’s secondary employment and any damage that might have to the reputation of Wynbob;
(d) All other matters within [8].
[95] Mr Green’s evidence was that if an employee suspected he might be intoxicated whilst driving a vehicle, he expected that employee to contact his wife to address their concerns. He submitted that was what the Employee Handbook required; not reporting the matter elsewhere. Mr Green’s evidence and submissions on this issue are not acceptable. Ms Bond was well within her rights to contact Andersens’ head office and report her concerns. Ms Bond’s concerns were swiftly notified to the police, and Mr Green was appropriately apprehended and prevented from putting himself and other road users at risk of death or injury by his state of intoxication whilst driving with a blood alcohol level of 0.11.
[96] Further, I find that Ms Bond would not have been required, in the circumstances, to follow the Employee Handbook to the extent that Mr Green expected. His expectation that Ms Bond contact Mrs Green, as a director of Wynbob, to report that Mr Green appeared to be intoxicated whilst driving was unreasonable in light of her observation of him and the legitimate concerns that she held. It would be unreasonable for Ms Bond to be prevented reporting her concerns to anybody else until such time as she had raised the matter with Mrs Green and determined that she was not satisfied with Mrs Green’s response.
[97] It appears that Mr Green was most upset that the incident was reported to Andersens’ head office, as opposed to being directly reported to the police. He considered that the reporting of the concerns led to risk of the business with the franchisor.
[98] In all of the circumstances, the subsequent knowledge that Ms Bond reported her concerns to Andersens relevant to Mr Green’s conduct does not constitute a valid reason for the dismissal. For the benefit of relevant road users at the time, Ms Bond was well within her rights to report Mr Green’s conduct, and thankfully she did so. I do not accept that Ms Bond reported her concerns for malicious reasons or in pursuit of a personal grudge.
[99] In the course of the proceedings Mr Green discovered that Ms Bond had taken a photo of him asleep and had sent the photo to Mr Cooper, asserting that Mr Green was intoxicated whilst in the workplace. It could be asserted that Mr Cooper might have taken an opportunity to agree with Ms Bond that Mr Green appeared to be intoxicated in the workplace, as that might lead to the franchisor being in a stronger position to terminate the franchise. None of this was put to Mr Cooper in cross-examination.
[100] Whether Mr Green was intoxicated or not, or whether he was suffering the effects of his medical condition, it is not necessary for the Commission to determine. Ms Bond held a view that Mr Green was intoxicated, and she reported her concerns to Mr Cooper. Mr Cooper’s evidence was that he had a lawful right to enter the premises, and he did so. I do not accept that Ms Bond reported her concerns for malicious reasons or in pursuit of a personal grudge.
[101] As detailed in [40], any concerns that Mr Green held that Ms Bond was engaged in secondary employment which might put the reputation of Wynbob at risk was a concern that he had in approximately 2016. It could not reasonably have had any bearing on the decision to dismiss Ms Bond in August 2017.
[102] Relevant to the concerns later cited by Wynbob as to the reasons for the dismissal, Mr Green gave the following evidence: 25
‘THE COMMISSIONER: Your evidence is that you weren't aware until now that Ms Bond reported that to head office, so when you met with your staff on 3 August and you cautioned them about reporting matters to head office, what did you have in your mind that had been reported?
MR GREEN: A whole lot of little bits and pieces.
THE COMMISSIONER: Well, tell me how you learnt that all these little bits and pieces had been reported to head office? Who did you have a conversation with?
MR GREEN: In the staff? With all the staff. There was - - -
THE COMMISSIONER: By 3 August, your concern that head office knows things about you, that somebody is reporting - - -
MR GREEN: No, about the business.
THE COMMISSIONER: Yes.
MR GREEN: Not me.
THE COMMISSIONER: How did you form that view that head office knew something about the business?
MR GREEN: They were constantly talking about jobs and margins, and reps - - -
THE COMMISSIONER: Who is "they"?
MR GREEN: Head office, sorry.
THE COMMISSIONER: Well, who from head office?
MR GREEN: Mainly Brian Cooper.
THE COMMISSIONER: So you have a conversation, do you, with Mr Cooper?
MR GREEN: Yes, yes.
THE COMMISSIONER: As you would expect. What is said?
MR GREEN: "We believe" - it's hard to recall half the things, but a lot of little bits of information about customers. "We believe you didn't do this job properly, you didn't do that job properly and we're going to take over and we are going to fix it," and Hayley had tried to do this and Hayley had tried to do that. It's just when you put all these insurmountable things together, you think it's all surrounding personal issues within.
You know, we have had a rough trot with getting layers and I've left it up to the staff to go and do this and do that, but I always tend to get the blame for it when other people make these decisions. Head office said, "Why did you employ this guy?" or that guy. "Well, Hayley was involved and said he was good at it." Little things about - Hayley wasn't sharing that information through - we're only a small business. She wasn't sharing the information through all the staff.
She was networking with them with text messages and phoning, and actually going out on dates with them and drinking and all that after hours. I wasn't comfortable with that sort of stuff, but everything was kept sort of quiet and she was sort of in a situation where she was trying to take control of people and jobs.’
[103] Mr Green was unable to give any specific detail as to when these issues arose.
[104] Relevant to the events that unfolded on 7 and 8 August 2017, regard must be had to whether Mr Green’s conclusion that Ms Bond had informed Mr D’Agostino of the conversation of 3 August 2017 constitutes a valid reason for the dismissal. While the above incident has been considered above relevant to the Code, and relevant to what Mr Green believed at the time, it is necessary when considering pursuant to s.387(a) if the events in fact happened as alleged by Mr Green.
[105] The Commission must determine, on the balance of probability, whether the conduct in fact occurred based on the evidence before it. 26
[106] Mr Green’s evidence is based upon his own recollection of a conversation had with Mr D’Agostino on 7 August 2017, the veracity of which is disputed by Mr D’Agostino (the only other witness). Mr D’Agostino’s evidence diverges drastically from Mr Green’s version of events, to the extent that Mr D’Agostino has noted to the Commission his strong objection to Mr Green approaching him for a statutory declaration. These disputed facts have been canvassed above.
[107] I consider that there is not sufficient evidence to demonstrate that the misconduct occurred as alleged by Mr Green. None of the other staff – Ms Faulks and Ms Brace – gave evidence that Mr D’Agostino said Ms Bond had told him information about the store closure.
[108] I earlier concluded that the most likely scenario of the conversation on 7 August is that Mr D’Agostino did not indicate that Ms Bond was the source of the information leak, and that this was a conclusion drawn by Mr Green on his own. It is plausible that Mr D’Agostino may have overheard the conversation between Ms Faulks and Ms Brace. The relevant question here is whether Mr D’Agostino’s evidence that Ms Bond at no point mentioned the contents of the meeting can be accepted. On this point, Mr D’Agostino’s evidence and communications to the Commission are consistent. I consider Mr D’Agostino as being generally a more credible witness than Mr Green.
[109] Mr Green’s allegations that Mr D’Agostino named Ms Bond as the source and that he had offered to write a statutory declaration to this effect is not accepted. On the information available to the Commission, I conclude that Ms Bond did not engage in the alleged conduct.
[110] Having determined that the conduct has not occurred, it is not necessary to embark upon a consideration of whether the conduct warranted dismissal. 27
[111] Having regard to all of the matters above, there was no valid reason for Ms Bond’s dismissal.
Notification of the valid reason – s.387(b)
[112] At the time of the dismissal on 8 August 2017, Mr Green briefly discussed with Ms Bond the conversation he had held with Mr D’Agostino. Reference was not made to the other matters that Wynbob could seek to rely on to provide a valid reason for the dismissal.
[113] I am satisfied that Mr Green informed Ms Bond that the reason for the dismissal was his decision that Ms Bond had communicated with Mr D’Agostino what was discussed at the meeting of 3 August 2017.
Opportunity to respond – s.387(c)
[114] 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.28
[115] Ms Bond agreed that the one reason for the dismissal – the accusation that she had reported the 3 August 2017 conversation to Mr D’Agostino – was put to her and she denied it. 29
[116] Nothing further was put to Ms Bond for her to respond to.
Unreasonable refusal by the employer to allow a support person - s.387(d)
[117] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, the employer should not unreasonably refuse that person being present.
[118] Ms Bond was not offered the opportunity to bring a support person with her to the meeting resulting in her dismissal, but neither did she request a support person. The legislative test is whether a request to allow a support person was refused. In this case it was not.
Warnings regarding unsatisfactory performance - s.387(e)
[119] It is the contention of Wynbob that Ms Bond’s dismissal was as a result of direct insubordination and deliberate attempts to put at risk the viability of the business through its franchisor. Where a dismissal is a summary dismissal due to misconduct, this criterion may not be a relevant consideration.
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)
[120] Wynbob was a small business employing three employees at the time of the dismissal. It follows that the business had an absence of a dedicated human resources management or any expertise.
Other relevant matters - s.387(h)
[121] Section 387(h) provides the Commission with a broad scope to consider any other matters it considers relevant. I have had regard to the increasing pressure Mr Green was under having received a breach notice from the franchisor. He considered that Andersens may terminate the franchise contract.
[122] Taking into account the above considerations, and notwithstanding the size of the business and the absence of dedicated human resources management specialists, I find that Ms Bond’s dismissal was harsh, unjust and unreasonable. I am not satisfied that there was a valid reason for dismissal, and there were issues of procedural fairness apparent in the dismissal. Ms Bond was given minimal opportunity to respond and indeed, Mr Green confirmed that the decision to terminate Ms Bond had occurred prior to any investigation or discussion of the alleged misconduct.
[123] Section 390 of the Act reads as follows:
‘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.’
[124] Ms Bond is a person protected from unfair dismissal for the Act’s purposes, and is a person who has been unfairly dismissed.
[125] At the determinative conference on 14 February 2018, evidence was led that in the latter part of 2017 Wynbob ceased trading as Andersens Tweed Heads. In material subsequently filed in the Commission, Mr Green confirmed that on 12 October 2017 Wynbob received and signed a settlement deed between Wynbob and Andersens for the sale by Wynbob and the purchase by Andersens of the franchise.
[126] The last day Wynbob traded was 30 November 2017. From 1 December 2017 Wynbob has been working with its accountant reviewing creditors’ payments and the like. Mr Green confirmed that Wynbob is still solvent and it is not in administration.
[127] In light of the above evidence, there are no longer any employees of Wynbob and no work to do. There is no employment or work to reinstate Ms Bond to, and accordingly, reinstatement is inappropriate.
[128] Section 392 of the Act provides:
‘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.’
[129] The approach to the calculation of compensation is set out in a decision of a Full Bench of the Australian Industrial Relations Commission in Sprigg v Paul’s Licensed Festival Supermarket.30 That approach, with some refinement, has subsequently been endorsed and adopted by Full Benches of the Commission in Bowden v Ottrey Homes Cobram and District Retirement Villages inc T/A Ottrey,31 Jetstar Airways Pty Ltd v Neeteson-Lemkes32 and McCulloch v Calvary Health Care33 (McCulloch).
[130] I have had regard to the above authorities.
[131] Mr Green’s evidence was that Wynbob has incurred a liability in the order of $40,000 - $50,000 in legal fees. Some of the fees have been for the purposes of attempting to ‘sue’ some people. During the determinative conference on 4 December 2017, Mr Green stated that his lawyer was working on preparing to commence proceedings against Ms Bond. 34
[132] Whilst Wynbob is currently not trading in any goods or services at present, Mr Green’s evidence is that he continues to instruct the entity’s lawyer to commence proceedings against Ms Bond and perhaps others. I do not consider there is any reason to reduce compensation payable to Ms Bond relevant to this criterion.
[133] Ms Bond had been employed for a period of approximately 22 months. This is not a significant period of time.
[134] I am of the view that Ms Bond’s employment would not have continued for an extended period of time.
[135] In any event, it is known that Wynbob ceased trading as Andersens Tweed Heads by 30 November 2017. Ms Bond was not replaced following her dismissal.
[136] Mr Green was facing increasing pressure relevant to the breach notices issued by Andersens. He was not well, and on information provided to the Commission, he was hospitalised with anxiety and depression before the settlement of the business on 30 November 2017.
[137] The settlement deed was executed on or around 12 October 2017. I consider that on signing this, but for Ms Bond’s dismissal, this would have resulted in the termination of her employment on lawful grounds. Wynbob was operating with only two employees from 8 August 2017, and I am satisfied that had Ms Bond been in employment throughout August and September 2017, the employment would have ceased by approximately 12 October 2017. This is a period of approximately nine weeks.
[138] I have had regard to the fact that on termination, if it had been effected on 12 October 2017, Ms Bond would have been paid two weeks’ notice. Accordingly, I consider she would have received wages for approximately nine weeks plus two weeks’ payment in lieu of notice, totalling eleven weeks’ wages.
[139] Ms Bond made very little attempts following the dismissal, and in particularly throughout August and September 2017 to secure other like employment. Ms Bond did not make a concerted effort to visit upon other carpet laying establishments until after the first determinative conference on 4 December 2017. 35
[140] Her evidence is that she did some Uber driving, but she stated that some days she was feeling depressed and stressed, and did not leave her home. 36 No medical evidence of this was provided.
[141] Ms Bond had capacity, and did in fact drive her vehicle performing Uber work, and receiving payment each week from the dismissal until 12 October 2017, and for the next two weeks counting the notice period to 26 October 2017, as follows:
(a) 14 August 2017 $89.58
(b) 21 August 2017 $48.48
(c) 28 August 2017 $164.09
(d) 4 September 2017 $209.04
(e) 11 September 2017 $302.05
(f) 18 September 2017 $114.40
(g) 25 September 2017 $150.61
(h) 2 October 2017 $435.33
(i) 9 October 2017 $626.39
(j) 16 October 2017 $362.70
(k) 23 October 2017 $358.89
(l) 30 October 2017 $119.46
[142] I have determined not to reduce the amount of compensation on account of Ms Bond’s failure to mitigate relevant to like employment. Ms Bond chose to do Uber driving, and was in receipt of approximately half of her ordinary earnings through this course of action. Ms Bond did mitigate the loss, albeit not in like employment. There is no requirement for Ms Bond to have sought like employment, and she did make some efforts to mitigate the loss.
[143] Ms Bond is in receipt of a pension which is held in trust on account of having been involved in a serious motor vehicle accident in 2010. I do not consider this pension to constitute ‘remuneration earned by Ms Bond from employment or other work’, and accordingly I have not taken any such amount into consideration for the making of the order for compensation.
[144] The amount in [141] is the sum of $2981.02. Although I have not heard from the parties relevant to any amount of discount that might be considered appropriate to apply to the above sum on account of the running costs such as petrol, depreciation etc., I have decided to discount the amount above by 20%. I consider this to be an appropriate percentage to discount taking into consideration the actual earnings an Uber driver might earn on account of the labour the person puts into the enterprise. I do not consider that ‘remuneration’ should include things such as materials. Accordingly the remuneration earned is the amount of $2384.82.
[145] This factor is not relevant in the circumstances of this matter.
[146] The only other relevant consideration I have taken into consideration is the payment of two weeks’ pay to Ms Bond on termination. This amount has been calculated as $20 per hour, with an average of 27.5 hours each week. The amount is $1,100.
[147] Section 392(3) requires that if the Commission is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person then the Commission must reduce the amount it would otherwise order by an appropriate amount on account of the misconduct.
[148] The section requires that consideration be given by the Commission to whether misconduct contributed to the decision to dismiss an employee even where it has been found there was no valid reason for the termination.37 The absence of a valid reason may be relevant to the appropriate amount by which compensation should be reduced.38
[149] I have found earlier that a valid reason for dismissal did not exist, and that Ms Bond was not guilty of the alleged misconduct.
[150] I confirm that any amount ordered does not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt caused to Ms Bond by the manner of the dismissal.
[151] I must reduce the amount of compensation to be ordered if it exceeds the lesser of the total amount of remuneration received by the applicant, or to which the applicant was entitled, for any period of employment with the employer during the 26 weeks immediately before the dismissal, or the high income threshold immediately prior to the dismissal.
[152] The amount of compensation the Commission will order does not exceed the compensation cap.
[153] No submissions were made relevant to this consideration. I do not consider it appropriate to order for the payment of compensation to be made by instalments.
[154] I have determined that Wynbob is to pay to Ms Bond the following amount of compensation less tax as required by law:
11 weeks’ pay
$20 x 27.5 hrs x 11 weeks $6,050.00
Less two weeks’ pay already paid -$1,100.00
Less remuneration at [144] -$2,384.82
Total $2,565.18
[155] I have determined it is appropriate that superannuation is paid into Ms Bond’s superannuation account in addition to the amount of $2,565.18 at the rate of 9.5%.
[156] An order to this effect will be issued separately.
COMMISSIONER
<PR600903>
1 Transcript 4 December 2017, PN152.
2 Transcript 14 February 2018, PN10.
3 Transcript 4 December 2017, PN443.
4 Ibid at PN636.
5 Ibid at PN685.
6 Ibid at PN739.
7 Ibid at PN725.
8 Ibid at PN641 to PN663.
9 Ibid at PN301 to PN307.
10 Ibid at PN447.
11 Ibid at PN451 to PN474.
12 Ibid at PN554 to PN566.
13 Ibid at PN595 to PN600.
14 Ibid at PN1052.
16 Transcript 4 December 2017 at PN528.
17 Pinawin T/A RoseVi.Hair.Face.Body v Domingo [2012] FWAFB 1359 at [30].
18 Transcript 4 December 2017 at PN564.
19 Ibid at PN564.
20 [1995] HCA 24; (1995) 185 CLR 410 at 465.
21 Sayer v Melsteel [2011] FWAFB 7498 at [20].
22 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-378.
23 Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371, 373.
24 Ibid.
25 Transcript 4 December 2017 at PN748 to PN767.
26 Edwards v Justice Giudice [1999] FCA 1836 (23 December 1999).
27 Ibid at paragraph 7.
28 RMIT v Asher (2010) 194 IR 1, 14-15.
29 Transcript 4 December 2017 at PN485.
30 (1998) 88 IR 21.
34 Transcript 4 December 2017 PN881.
35 Transcript 13 December 2017 PN972.
36 Ibid PN1002.
37 Read v Gordon Square Child Care Centre Inc. [2013] FWCFB 762 [83].
38 Ibid.
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