DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Emily O’Brien
v
The Trustee for WKC Trust
(U2018/13014)

Application for an unfair dismissal remedy.

[1] This decision concerns an application made by Ms Emily O’Brien under s.394 of the Fair Work Act 2009 (Cth) (Act) for an unfair dismissal remedy.

[2] From October 2015 until her dismissal, Ms O’Brien (the Applicant) was employed by The Trustee for WKC Trust trading as Curious Grace (Respondent) at its Clifton Hill Showroom. The Applicant was employed as the Showroom Manager and Stylist at the time of her dismissal on 29 November 2018.

Initial matters to be considered

[3] I granted Mr Nick Tindley of FCB Workplace Group leave to appear for the Respondent. Following consideration of his arguments, (the lack of HR expertise in the business, the inability of the Respondent to represent himself as a key witness, and matters relating to alleged misconduct warranting more complex legal argument), I determined on balance that representation of the Respondent would assist in dealing with the matter more efficiently.

[4] Section 396 of the Act requires that I decide four matters before considering the merits of the Applicant’s application. There is no dispute between the parties, and I am satisfied, of the following matters:

1. The Applicant’s application was made within the 21-day period required by s.394(2) of the Act;

2. the Applicant was a person protected from unfair dismissal, as she served the minimum employment period, she was covered by a modern award and earned less than the high-income threshold; 1

3. the Applicant’s dismissal was not a case of genuine redundancy; and

4. The Respondent is not a small business for the purposes of the Act, and the Applicant’s dismissal is therefore not required to be consistent with the Small Business Fair Dismissal Code.

Procedural matters

[5] The Application was filed on 18 December 2018.

[6] The Respondent was represented by FCB Workplace Group when filing the F3 on 5 February 2019. The Respondent’s Form F3 was filed the day preceding the scheduled conciliation conference on 6 February 2019. The matter was not resolved at conciliation conference and directions were issued for the filing of submissions and witness statements.

[7] The Applicant met the required timelines for filing of material, except for an extension sought for one witness statement which was one day late, however, the Respondent failed to file materials by the directed deadline of 25 March 2019.

[8] I scheduled the matter for preliminary conference on 24 April 2019, to deal with the Respondent’s non-compliance with directions, permission to appear and other procedural matters. The Respondent submitted its outline of argument and witness statements on the morning of 24 April 2019, some 30 days late and two business days before the hearing. Despite the late filing of the Respondent’s material, the Applicant decided to proceed with the initial hearing dates.

[9] The Applicant presented additional witness evidence immediately prior to the hearing which the Respondent initially objected to. However, in the course of the hearing, only two witness statements were not included as the witnesses were unavailable for cross-examination.

[10] The Applicant in her opening submissions made reference to the inequity in representation and the disadvantage experienced by the Respondent’s non-compliance with directions. I am mindful that the Applicant was not represented and of the potential disadvantage incurred by the Applicant due to the Respondent’s non-compliance.

Factual Background

[11] The Respondent is a furniture retail business operating from three locations, two in Victoria and one in New South Wales. The Applicant was employed in one of the Victorian showrooms. The showroom in Clifton Hill is the largest of the sites and is housed in a warehouse of 470m².

[12] The Applicant was initially employed as an Assistant Showroom Manager. The Applicant had shown promise and from November 2017, the Applicant was promoted to Showroom Manager. As Showroom Manager, the Applicant was responsible for styling and photoshoots which involved the Applicant solely staging and managing the photographic shoots to promote Curious Grace products. During the hearing it was not contested that the photographic shoots were time consuming, sometimes taking weeks; the event was known to disrupt the showroom’s tidiness and lift dust from the concrete floor. 2

[13] In or around October 2018, the Applicant applied for the position of National Sales Manager, however was unsuccessful.

[14] On 27 November 2018, the Applicant submits she was unwell, and as a management meeting was scheduled for that morning, she informed the senior management team of her absence (Director, HR Manager and National Sales Manager) via email. At 10.28 am the Applicant received an email from the Director, Mr Curnuck, standing her down (Suspension Email).

[15] The Suspension Email contained allegations against the Applicant which included:

1. Upon a walkthrough of the Showroom by the National Sales Manager and the Co-Director, the Showroom was found to be dirty, unkempt with unmaintained furniture and a piece of furniture not unpacked

2. That the Applicant did not keep an active roster that was reliable for staff and that casual staff were taking sick leave without providing medical certificates.

3. A complaint from a client alleged that the Applicant handled his complaint in a poor manner.

4. The Applicant complained to staff that the Manager from another location was stealing sales and on questioning why she had not escalated the situation, she responded that the Manager in question and the National Sales Manager were “ganging up on her” 3 and “she was over it”4.

5. That she took a sick leave day even though she knew a new staff member was commencing that same day.

[16] On 29 November 2018, the Applicant received a Letter of Termination 5 citing termination effective immediately. The letter was signed off from the Administrator/HR Manager (herein referred to as the HR Manager). The termination letter states the Applicant is not eligible for any payment of notice. The Letter of Termination refers to the reasons for termination as:

1. The Applicant was malicious and demonstrated ill-intent toward the National Sales Manager;

2. The Applicant was unsupportive and since her suspension attempted to “damage the relationship between the National Sales Manager, the Managing Director and Clifton Hill staff by spreading half-truths” 6;

3. Despite being suspended and contrary to advice, the Applicant maintained contact with staff “spreading similar half-truths about her suspension” 7 which was allegedly committed to develop unrest within the company and is considered serious breaches of the company’s anti-bullying and toxicity policies;

4. That she was negligent in her duties resulting in the National Sales Manager handling her responsibilities and consequently attaining the highest gross sales level; and

5. Since receiving a written warning in relation to attendance (which was also considered a serious breach of company policy), she has continued to demonstrate serious breaches of policy.

[17] The Letter of Termination ends with a directive to return company property; she is reminded of the restraint of trade and confidentiality terms in her contract of employment. 8

[18] In response to the Letter of Termination, the Applicant sent the Director an email challenging the allegations outlined in the termination letter and the basis of her dismissal. The Respondent did not respond to the Applicant’s email. Further, on 3 December 2018, the Applicant questioned the failure to pay notice on the basis that misconduct was not referenced in the termination letter. On 5 December 2018, the Respondent emailed the Applicant a payslip which included the payment of notice. 9

[19] On 17 December 2018 the Applicant received an Employment Separation Certificate which states that the termination is due to misconduct. The Applicant sent an email challenging the reference to misconduct as the letter of termination does not state the reason for the termination was misconduct. 10

[20] Following the termination of the Applicant’s employment, the Respondent undertook a review of the Applicant’s work emails. Through that review the Respondent discovered that the Applicant had attended a job interview on 23 November 2018, for which the Applicant had submitted a medical certificate to support the taking of paid personal leave. The medical certificate was found to have been falsified by the Applicant.

[21] The Applicant contends that her dismissal was unfair. She seeks compensation, an apology, waiver of the restriction of trade clause in her contract of employment and conversion of her termination to a resignation.

[22] The matter was heard before me on 29 and 30 April 2019. The Applicant gave evidence on her own behalf and led evidence from her witness Ms Marisa Wanefalea. In addition, the Applicant provided witness statements from four former staff on the day before the hearing. There was no objection by the Respondent to the acceptance in evidence of all of the witness statements, and it did not require cross-examination other than Ms Evans and Hahn, who were not available in person. As Ms Evans and Hahn were not available for cross-examination, their witness statements were excluded from the evidence for the Applicant. The company led evidence from Messrs Wayne Curnuck and Pierre Pulizzi.

Witness evidence for the Applicant

[23] The Applicant presented witness statements from herself; Jane Haussegger; casual sales assistant; Katrina Ramm, casual sales assistant; Anthony Koletti, former Manager of the Clifton Hill store while the Applicant was Assistant Manager; Mia Fleming, sales consultant and Marisa Wanefalea, casual sales assistant.

Witness evidence of the Applicant 11

[24] The Applicant presented a witness statement and sworn evidence. The Applicant confirmed that she had been late for some Sunday shifts, which she admitted to during the performance review session conducted on 7 November 2018. She explained that the time she took off was either up to half an hour prior to or at the end of her shift. When questioned about her lateness and time off, she confirmed she did not ask for permission, as she had continued to take the time as she had been authorised by her previous manager. The Applicant also confirmed that she worked extensive overtime. In September 2018, she confirmed that she worked 36 hours of overtime. She also submitted that she sought to clarify the company’s policy and its expectations regarding what is reasonable overtime many times. Despite the criticism of her taking time off and lack of clarity regarding what is reasonable additional hours, the Applicant stated she apologised to the Director during the performance meeting as she felt intimidated and bullied, and agreed in the future to seek authority from the Director prior to taking time off in lieu.

[25] The Applicant submitted email evidence of her requests for clarity concerning what is reasonable overtime and guidance for taking time off in lieu, which included the responses by the Director which she claimed were dismissive of her queries and aggressive in tone. 12

[26] The Applicant gave evidence that the Clifton Hill showroom was the biggest of all three sites and the full-time Assistant Manager went on stress leave in the last week of October and was subsequently relocated and promoted to Yarraville as Showroom Manager. The Applicant had access to six casual sales staff, which despite arranging the roster in advance left her to fill in when staff were sick, were transferred to Yarraville to work, or became unavailable at short notice for other reasons. The Applicant submitted it was not uncommon for her to work six to seven days per week, even though her roster was Sunday to Thursday.

[27] Regarding the allegation by the National Sales Manager that her roster was not up to date or reliable, the Applicant disputed this and submitted that the National Sales Manager made changes to the roster without her knowledge. Further, the Applicant submitted that the National Sales Manager dismissed one of her casuals (Ms Evans) without her knowledge or consultation. This was not contested by the National Sales Manager in his sworn evidence. 13

[28] During the hearing, the Respondent presented a calendar for September 2018 (developed by the Assistant Showroom Manager) which was relied on by the Respondent to demonstrate that the Applicant took extensive time off without authority. Under cross-examination the Applicant admitted to never seeing the calendar before. 14 She challenged the information contained in the calendar as it failed to account for her hours of work when she filled in for absent staff, took a period of authorised sick leave, attended to a client interior design visit and worked from home while unwell.15 The Applicant submitted she had actually worked 36 additional hours in that month. The Applicant submitted that the calendar was never presented to her prior to the hearing.

[29] The Applicant submitted that the showroom was short staffed and that this was communicated to the Director many times and in many ways. The concerns regarding staffing and excessive hours worked by the Applicant and her Assistant Manager were raised verbally, in email correspondence and in daily and weekly reports. The Applicant claimed these requests for assistance and clarity were ignored. During the hearing, the Respondent submitted that an effort to recruit new staff was actioned in late November 2018.

[30] The Applicant also submitted evidence relating to a security scare in August 2018, when a criminal was pursued by police and entered the showroom while the Applicant was working on her own. 16 She submitted that she was shaken and continued to raise her concerns relating to lack of staffing at the site. The Applicant claimed the Respondent did not provide her with any support following the security incident.

[31] The Applicant submitted that the previous Yarraville Showroom Manager who had “stolen” 17 her sales and the sales of her staff was then placed to work in her showroom for a week once per month. Based on the evidence of the Applicant, the Director and other witness evidence, it appeared common practice that sales commissions were assigned to individuals that did not work the client. An example was the explanation by the Director that the commissions for the sales effort of the Applicant with a Melbourne client were handed over to the National Sales Manager because the place of delivery was in New South Wales.18

[32] She submitted that the National Sales Manager and Director placed on her obligations that did not apply to other staff, that she was accused of behaviour and not given a fair opportunity to respond, and that her welfare and safety was ignored.

[33] Unprompted in the Applicant’s opening submissions, and during cross examination, the Applicant admitted to falsifying the medical certificate to cover an absence of one and a half hours and admitted that it was a foolish act that she is ashamed of. 19 She expressed regret and explained that she was stressed and fearful of losing her job. After receiving a warning for taking time off in lieu of overtime, she knew she needed a good excuse to absent herself from work so that she could attend a job interview. She attended the interview after feeling stressed from the behaviour towards her from the Director and National Sales Manager.

[34] In terms of the criticism that she was absent on 27 November 2018 and therefore did not open the showroom for a new staff member, the Applicant’s evidence was that she was exhausted from working excessive hours and that on Sunday 25 November 2018 she had discovered that the National Sales Manager fired her staff member on the previous day and neglected to inform her. She claimed that this staff member was scheduled to open the showroom and that she was not aware or advised that a new staff member had been engaged to work on 27 November 2018. She submitted that she was legitimately unwell on 27 November 2018 and had a legitimate medical certificate for the absence.

[35] The Applicant submitted that in her last month of employment, the National Sales Manager brought forward the commencing date of the showroom sale and did not inform her. The Applicant was informed by one of her casual staff of the change in date, and this resulted in the Applicant working excessive hours to prepare the site with stock and other necessities. The Applicant claimed that at the time of the showroom sale, the National Sales Manager also removed the Applicant’s staff to attend to Yarraville because of a shortage of staff at the Yarraville site; he also terminated one of her staff without her knowledge.

[36] The Applicant referred to email evidence submitted by the Respondent where she writes to the Director and National Sales Manager expressing concern over the decisions made by the National Sales Manager without her knowledge which impacted her directly. The email requests that she be informed of such decisions. The Director responded to her questioning that the emails demonstrate her rudeness to the National Sales Manager. 20

[37] The Applicant was suspended on 27 November 2018 and in her evidence submitted that she was never invited to respond to the allegations made against her; she nevertheless sent an email to the Director out of desperation to counter the allegations made against her. She also submitted that the evidence in support of the allegations was never presented to her for reply. The Director in sworn evidence submitted he did not think it necessary to provide the Applicant with an opportunity to show cause why she should not be terminated. 21

[38] The Respondent challenged her for contacting her staff while she was suspended. The Applicant submitted that she was shocked and upset, she informed her staff of her suspension because she knew they would be confused and rumour mongering needed to be quashed. She was aware that the Director thought gossip was toxic therefore she countered this by keeping her staff informed, with the objective of maintaining staff cohesion, positive morale and focus. She put forward that in one of her communications she handed over to her staff her sale valued at $30,000 that required following up, she inquired from her staff if there was confusion over the roster and she informed them that Ms Evans had been dismissed by the National Sales Manager on the weekend. There was no evidence of communication from the Applicant to any staff following receipt of an email from the HR Manager on 28 November 2018, requesting that she cease communications.

[39] The Applicant submitted that she was bullied. Under cross-examination she refers to what she described as incomplete material submitted by the Respondent, particularly relating to emails between herself, the Director and the National Sales Manager where she raises concerns with behaviour that undermined her position and standing. 22 She submitted that the Director’s response to her at the time was that she was rude to the National Sales Manager.

[40] She also submitted that the disagreement between herself and her Assistant Manager, which the employer relies on to suggest she was difficult and that he had to remove the Assistant Manager, arose because she was instructed by the Director to inform her Assistant Manager that she is not to work from home. The Applicant claimed that rather than reiterating his directive, the Director accepted the Assistant Manager’s complaint and her subsequent assertions concerning the Applicant’s alleged absences from work as fact, without verifying any of the detail. The Director then transferred and promoted the Assistant Manager to Yarraville Showroom Manager. The Applicant then questioned why the Director would promote the employee into a more difficult role instead of addressing the stress the employee experienced due to understaffing and long working hours.

[41] The Applicant submitted that the document titled ‘Emily O’Brien Performance Improvement Meeting’, dated 7 November 2018, referred to as the ‘Minutes’ was received by her only after she requested it. I note that the document submitted and attached to the Respondent’s witness statement 23 is incomplete when compared to the same document contained in the Applicant’s filed documents. This document is a transcript between the Director, HR Manager and the Applicant.

Witness evidence of Marisa Wanefalea

[42] Ms Wanefalea gave evidence that she was engaged as a casual sales assistant for the Respondent and worked briefly from November to December 2018. Ms Wanefalea presented a witness statement 24 and sworn evidence25. In her witness statement, Ms Wanefalea stated she had over 13 years’ experience in the retail and interior design industry.

[43] Ms Wanefalea gave evidence of her observations of the Applicant and her management of the showroom. She submitted that the Applicant presented a tidy showroom and that she was a talented visual merchandiser.

[44] She also presented evidence that the rostering was organised well in advance and staff understood the roster. She submitted that confusion among staff arose when the National Sales Manager “started changing shifts around” 26.

[45] She also observed that the Applicant worked long hours and was polite and communicative with staff and senior management. She also submitted that she did not witness any negativity by the Applicant towards senior management; in fact she submitted that the Applicant spoke of management positively.

[46] Ms Wanefalau referred to the negative comments made by the National Sales Manager against the Applicant and criticisms he made towards the state of the showroom in comparison to the Sydney showroom. Ms Wanefalau submitted these comments by the National Sales Manager were made to staff at the Clifton Hill showroom, while he was in charge in place of the Applicant while she was attending to the photoshoot. Her recollection of the National Sales Manager’s vocal criticism was that it undermined the Applicant and other Curious Grace staff, affected morale and unsettled the Clifton Hill sales team.

[47] The evidence also included her observations that the company was unprofessional in managing the arrival and departure of staff. She submitted emails were sent around when new staff commenced to encourage them to be welcomed, but the company was silent when staff left, creating an “environment that was unstable and tumultuous as staff were left guessing and confused” 27. She referred to three staff members that she understood had been terminated in her period with Curious Grace; the Assistant Manager, Ms Evans and the Applicant. Under cross-examination the Respondent’s representative put to the witness that the Assistant Manager was not dismissed. The witness responded that because staff emails to her went unanswered, staff concluded that the Assistant Manager was terminated.28 Ms Wanefalau also submitted that she understood Ms Evans was dismissed without warning or fair process when she was unavailable for a shift due to her grandfather’s funeral.

[48] Ms Wanefalea also referred to the reputation of the Respondent relating to slow payment of orders, and the high number of customer complaints that staff were instructed to forward to senior staff for attention.

[49] The Respondent contends that the witness evidence is to be weighed in the context of the limited number of shifts worked over the month with the Applicant. The witness evidence is relevant in the context of her observations of the Applicant, the Director, National Sales Manager and the operation of the site while employed by the Respondent.

[50] Ms Wanefalea submitted that she resigned after the treatment of the Applicant as she felt the Applicant’s treatment unfair and undeserved. In her witness statement, Ms Wanefalea provided a duplicate of her resignation letter which was sent to the National Sales Manager. I found her evidence to be credible and unwavering.

Witness Statement of Jane Haussegger 29

[51] Ms Haussegger was a former casual sales assistant reporting to the Applicant. In her witness statement she makes reference to the Applicant not being aware that a new employee was scheduled to commence, the lack of communication when staff left the company, the customer complaints due to delayed customer orders, the short notice she and other staff received to present at the Yarraville site and the lack of supportive environment following the departure of the Applicant. Ms Haussegger also attested to not witnessing the Applicant acting maliciously towards the National Sales Manager.

Witness Statement of Katrina Ramm 30

[52] Ms Ramm was a casual sales representative reporting to the Applicant. In her witness statement she makes reference to the support received from the Applicant as her Manager, the Applicant’s attention to detail in keeping the showroom tidy and clean, and the management of an accurate staffing roster. Ms Ramm also makes reference to the exception to the state of the showroom in the last few weeks of the Applicant’s employment which coincided with the departure of the Assistant Manager, a week long photoshoot and the company’s largest floor stock sale, including the commencement of two new casual sales representatives that were undergoing training.

[53] Ms Ramm refers to the announcement by senior management that the Applicant was terminated from employment for “creating a toxic work environment” 31, and Mr Pulizzi’s numerous negative remarks to the staff concerning the state of the showroom.

[54] She made reference to her expectation that she would work alongside certain rostered staff, but on calling the National Sales Manager inquiring where they were, she was told they were no longer working for Curious Grace. Ms Ramm left the company in January 2019, after most of the staff left the Clifton Hill showroom.

Witness Statement of Anthony John Koletti 32

[55] Mr Koletti gave evidence that for a period of two years, the Applicant reported to him in his position as Manager and the Applicant as his assistant until February 2018. Mr Koletti attested to the Applicant’s performance, commitment, her approach with customers and her dedication and ability to cope with the pressure of photoshoots that lasted two-week periods. He also made reference to the Applicant’s concerns relating to her sales being poached, which were dismissed by the Director. Mr Koletti described the workplace as toxic.

Witness Statement of Mia Fleming 33

[56] Ms Fleming was a sales consultant that worked at both Victorian showrooms and provided a statement attesting to the Applicant’s attention to detail to ensure the showroom and products on display were meticulous, the staff rostering was organised months in advance, that the Applicant was early into work and stayed late and covered for staff when they called in sick. Ms Fleming referred to the behaviour of Paul (Yarraville Manager) when rostered to work one week a month in Clifton Hill with reference to the stealing of clients and reasons for angry customer complaints. She also described the assumption that the Directors did not place or pay for orders which resulted in late deliveries and she confirmed this information was received from suppliers when checking on delivery lead times. Ms Fleming also describes the inconsistency in application of workplace policies and lack of management direction from the Directors and other senior staff.

Witness evidence for the Respondent

[57] The Respondent relied on witness evidence of Messrs Wayne Curnuck and Pierre Pulizzi.

Witness Statement 34 and evidence of Wayne Curnuck

[58] Mr Curnuck gave evidence in a witness statement that he has held the position of Director of Curious Grace since October 2012. He submitted that the Applicant was vindictive and this was demonstrated when the Applicant applied for the National Sales Manager role so that the other two candidates would not be considered for the role, including when she wrote to her staff following her suspension. He submitted that advising staff that she was suspended, and that Ms Evans was dismissed by the National Sales Manager is indicative of vindictiveness. He submitted that he was aware the Applicant had engaged in conflict with senior managers (Pierre, Paul and the HR Manager) and therefore she should remain Showroom Manager. While under oath, I found Mr Curnuck provided limited information to support the contention that the Applicant was vindictive or had been the cause of conflict with other managers when asked to provide examples. 35

[59] In response to the report 36 from the Applicant’s Assistant Showroom Manager in Clifton Hill, Mr Curnuck claimed he formed the view that the Applicant had operated a different roster than that in the company’s system; that she had taken time off without his permission and had been late every Sunday. While under oath, Mr Curnuck could not verify the accuracy of the statements contained in the Assistant Manager’s report.37 He admitted to having an attendance log of only one month duration, and there was a lack of evidence to support his argument that the Applicant took excessive time off. The only roster provided in evidence by the Respondent to argue that the Applicant took excessive time off work was the document produced by the Assistant Manager. The Applicant had not seen the roster prior to the hearing and she challenged its accuracy. When cross-examining the Director, the Applicant pointed out that the roster excluded the additional hours worked by the Applicant and the appointments she had with clients external to the business. The Director admitted to not having that information and he did not challenge her questioning.38

[60] Mr Curnuck submitted he conducted a performance improvement meeting via video chat with the Applicant and HR Manager on 8 November 2018, (however evidence demonstrates it occurred on 7 November 2018) and following the meeting he provided the Applicant with a written warning on 8 November 2018. 39 Mr Curnuck could not answer if the Applicant verified that the content of the meeting notes were accurate. He submitted that because she confirmed receipt of the email, he took that as acceptance of its accuracy.

[61] He submitted he received individual reports on the state of the showroom. His wife, the Co-Director, following a walk through while the Applicant was engaged in a photoshoot, reported that the showroom was full of “old, old dust” 40.

[62] The National Sales Manager reported feedback to the Director in email on 13 November 2018 that staff had no excitement, rugs looked tired, dirty and messy, the cash register was a mess, customers were not being welcomed, rosters were inaccurate and he asserted that the photoshoot was not an excuse. 41 Reference to this report was not put to the Applicant until her suspension on 27 November 2018. However, the Applicant only saw the written report during proceedings.

[63] The Director accepted these reports as fact and instructed the National Sales Manager to attend to the concerns and do what he needed to do to rectify them. 42

[64] Mr Curnuck also expressed concern that the Applicant was thinking of leaving, therefore he had doubts about her commitment when she made private comments to the production manager that she “was over this” 43. On 20 and 24 November 2018, the production manager sent Mr Curnuck reports in relation to conversations he had with the Applicant.44 At no point did Mr Curnuck provide the Applicant with an opportunity to respond to the reports made about her from the staff member or production manager. Mr Curnuck interpreted the Applicant’s comments as meaning she was over working at Curious Grace. This interpretation was put to the Applicant in her letter of suspension.45

[65] Mr Curnuck also referred to a customer complaint which was included as a reason for the Applicant’s suspension. He submitted that the complaint by the customer should have been dealt with by the Applicant rather than referring it off to the National Sales Manager. He faulted the Applicant because the customer described her as “blunt” 46 and “refused to entertain the matter”47 of providing the customer with a greater discount. Mr Curnuck did not concede the evidence of the Applicant that she had no authority to authorise a further discount on top of the 10 percent already given to the customer or the alleged directive that customer complaints are to be escalated to senior staff. In his oral evidence, he admitted to not having any regard to the fact that the Applicant had no authority to provide an additional discount or that the National Sales Manager did not follow-up with the customer. Again, this complaint was not put to the Applicant for a response but was referred to in the suspension letter.

[66] Mr Curnuck also submits that he was concerned that the Applicant “would not return the National Sales Manager’s phone calls” 48 on 27 November 2018, because a new staff member organised to start by the HR Manager did not have keys to open the showroom. He states that he instructed the changing of all locks and to cut new keys as he had no idea who had keys and who did not. This was contrary to the evidence of Mr Pulizzi who submitted in cross-examination that it was a decision made solely by him and the HR Manager.49 Evidence relating to the reason for changing locks was difficult to decipher as it was admitted that as Director he did not know exactly who had keys, although Mr Pulizzi gave evidence that it was common practice for all staff to have keys.50 Mr Curnuck submitted that the National Sales Manager was instructed to arrange for the changing of the locks and to cut new keys, even though the National Sales Manager was located in New South Wales on the day. The Applicant contends that the changing of locks and security alarm codes coincided with her suspension. Access to the site was also contentious because the Applicant was unaware that the National Sales Manager had also terminated the employment of a casual due to work on that day, and she was unaware of a new staff member commencing.

[67] Mr Curnuck immediately suspended the Applicant via email on her sick leave day on the basis that “she might cause damage to his business” 51. He submitted he did not speak to the Applicant, although he considers the email that the Applicant sent to him after receiving the suspension email, as her opportunity to respond, and on that information he determined that her response was not persuasive to not terminate her employment. Mr Curnuck stated that the Applicant’s contact with staff during her suspension was inappropriate and undermined his trust in her. Based on this information, and her communication with staff, he decided to terminate her employment.

[68] Under cross-examination, Mr Curnuck stated that he removed the Assistant Manager because she was on stress leave (after she was informed by her Manager not to work from home following his direction to the Applicant). He stated placing her as Showroom Manager in Yarraville was a solution to her stress leave. Regarding the concern raised by the Applicant that in the past Paul (Yarraville Showroom Manager) was stealing sales, he determined to place Paul in the Clifton Hill site for one week every month with the objective that Paul and the Applicant would rebuild their working relationship.

[69] In response to questions why he selected Mr Pulizzi as National Sales Manager, he submitted that he was selected based on experience, store performance and stable staffing.

[70] I found Mr Curnuck to be a difficult witness, deflective and selective in his responses.

Witness Statement 52 and evidence of Pierre Pulizzi

[71] Mr Pulizzi was appointed National Sales Manager on 1 November 2018 and prior to this he was the Showroom Manager of the Mosman showroom. His witness statement confirms he had limited interaction with the Applicant prior to his appointment as National Sales Manager. He stated that on 12 November 2018 he walked through the showroom in Clifton Hill with the Co-Director, while the Applicant was attending to the photoshoot. He stated he reported back to the Director that he thought the Showroom was messy, dusty and mismatched. He also reported that he observed that the roster was incomplete for the following month and some staff had been rostered to work other than full days. He stated that he was informed by the Director to do what “he needed to get the showroom in order” 53.

[72] Mr Pulizzi admitted under cross-examination that he directed Ms Evans to work at the Yaraville showroom, he was aware that she also worked on her own and had no concerns with directing her to do so. 54

[73] Mr Pulizzi admitted under cross-examination that he directed the Applicant to provide a medical certificate for her absence of one and a half hours due to a medical appointment. He appeared confused by the company policy and could not comprehend the reason as to why he required a medical certificate for one and a half hours’ absence if the workplace policy required a medical certificate where a staff member was absent for a minimum of one day. 55

[74] Mr Pulizzi conceded to conducting a conference call with the Applicant’s staff without her knowledge, in changing the date of the showroom sale without her knowledge, terminating her employee (Ms Evans) without her knowledge, and he could not definitively confirm if he consulted the Applicant on the changes he made to her showroom roster. 56

[75] Despite the Applicant not being informed that a new staff member was commencing on 27 November, Mr Pulizzi gave evidence in his witness statement that he was critical of the Applicant for not organising and delivering showroom keys for the new staff member. 57

[76] Mr Pulizzi gave evidence that the Applicant and himself spoke on a daily basis, yet he gave evidence that he could not inform the Applicant of his decisions concerning staffing, rosters or the sale event because his decisions were made quickly and he had no time to advise her 58. However, he also submitted in cross-examination that it was not unreasonable of him to not advise the Applicant.

[77] Mr Pulizzi admitted while under cross-examination that he did not raise any of his concerns regarding the Applicant’s performance with her. 59 While Mr Pulizzi was critical of the state of the Showroom when he visited in November, he admitted that it was the first time he had ever witnessed a photoshoot. He admitted that the Director was aware of his concerns regarding the Applicant’s performance.

[78] Concerning questions relating to wellbeing and safety of staff, Mr Pulizzi submitted that while there should be a minimum of two staff members rostered on, he was aware and appeared unconcerned that staff, including new staff, were working on their own. In his evidence he stated that he had no concern that Ms Hahn was required to work on her own, despite her being a new employee. 60 In response to the question how a staff member would take a meal or toilet break during their shift if they were to work on their own, he responded that closing the store door for a few minutes was ok.

[79] While giving evidence, Mr Pulizzi was inconsistent in his responses, avoided questions, he could not articulate what certain company policies were nor did he display any understanding of basic employee entitlements. While he submitted he was busy managing the Applicant and her site, under cross-examination he admitted to making no apparent productive contribution other than phoning her to inquire on the status of her duties. 61

[80] The Respondent alleges that the reason for the Clifton Hill showroom sales performance is attributable to the contribution of Mr Pulizzi, the evidence of Mr Pulizzi disputes this. Under oath, Mr Pulizzi admitted that the strong sales outcome for the showroom was attributed to the Applicant and not him. 62

[81] Mr Pulizzi also accused the Applicant of being neglectful by submitting that she would not answer his calls, although under oath he admitted that he may have called her once or possibly twice and left no messages. The evidence of Mr Pulizzi is in contrast to the Respondent’s submission that the Applicant was negligent in her duties and requiring the National Sales Manager to handle her responsibilities.

Consideration

[82] For a dismissal to be unfair, the Commission must be satisfied that the dismissal was harsh, unjust or unreasonable. 63 In considering whether the dismissal is harsh, unjust or unreasonable, the Commission must take into account the relevant matters in section 387. I will address each of these relevant matters separately.

Was there a valid reason for dismissal s.387(a)?

[83] Section 387(a) requires consideration of whether there was a valid reason for the dismissal related to the person’s capacity or conduct. The authorities concerning a valid reason are clear that it must be “sound, defensible and well-founded” 64.

[84] While the Commission does not stand in the shoes of the employer, the Commission must address whether the reason for termination is defensible or justifiable on an objective analysis of the relevant facts. 65 The question the Commission must address is whether there was a valid reason, and that it is a substantiated reason.

[85] In terms of the reason relating to conduct, the Commission must determine on a balance of probabilities, that the conduct engaged by the employee actually occurred. 66 In cases relating to alleged misconduct, regulation 1.07 of the Fair Work Regulations 2009 (the Regulations) relevantly defines serious misconduct as follows:

“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 sub-regulation (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:

(i) the health or safety of a person; or

(ii) the reputation, viability or profitability of the employer’s business.

(3) For sub-regulation (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.

(4) Sub-regulation (3) does not apply if the employee is able to show that, in the circumstances, the conduct engaged in by the employee was not conduct that made employment in the period of notice unreasonable” 67.  

[86] While regulation 1.07 is not directly relevant to an unfair dismissal application, it remains that termination due to misconduct must be serious and relevant to whether the conduct is inconsistent with the continuation of the contract of employment.

[87] Evidence of misconduct that comes to light after the termination of employment is relevant if the employer intends to rely on the facts, even if it had not relied on the facts at the time of the dismissal. If the employer intends to rely on the reason given to the Commission, “they will have to contend with the consequences of not giving the employee an opportunity to respond to such a reason” 68.

[88] In its written submissions and evidence led by its witnesses, the Respondent submitted that in relation to valid reason it relies upon:

•  the actions of the Applicant leading to her warning on 8 November 2018 regarding punctuality and utilisation of time off in lieu of overtime;

•  reports from staff about the Applicant concerning the state of the showroom, her management of it, the alleged lack of motivation of her staff, the alleged conduct of the Applicant in creating rifts between employees and alleged comments from the Applicant to another staff member;

•  a customer complaint;

•  the absence of the Applicant on sick leave and failing to make arrangement to ensure the showroom could be opened;

•  The Applicant communicating to employees the circumstances of her suspension and termination of another staff member and the apparent refusal of the Applicant to cease communications with employees when instructed to do so by the Respondent; and

•  alleged fraud by submitting a falsified medical certificate to cover her absence when attending a job interview which was discovered after the Applicant’s termination

Punctuality and time off in lieu of overtime

[89] The Respondent operates a portal that allows staff to report on their colleagues either identified or anonymously. The Respondent relied on an anonymous report from the Assistant Showroom Manager after the Applicant told her not to work from home following a directive from the Director. The material in the anonymous report was relied on as fact by the Director, even though he was aware of both the Assistant Manager and Applicant’s concerns regarding their excessive hours of work because they were short staffed. The Director was aware that the Assistant Manager made the “complaint” after she was told not to work from home on his directive. The Director failed to present to the Applicant the evidence he relied on to discipline her.

[90] On reading the Emily O’Brien Performance Improvement Meeting 69 notes which were tendered by the Respondent, it was apparent that the document was incomplete as it did not reflect the complete transcript of the meeting submitted by the Applicant.70 The complete transcript submitted by the Applicant shows a combative conversation and a lack of clarity over guidelines concerning overtime and time off in lieu. Despite the lack of resolution concerning the Director’s expectations regarding reasonable overtime and reasonable time off in lieu, the Applicant received a warning which she accepted on 8 November 2018.

[91] The evidence of Mr Curnuck was that he accepted that the Applicant worked long hours and in his view, she was expected to work the excessive hours. He admitted to keeping no accurate record of overtime worked. He found no fault with the Applicant not obtaining authority to work extra hours, presumably because she would be criticised for having inadequate staffing on site, but he found fault with the Applicant for taking any time off without his express authority.

[92] When questioned what he considered reasonable hours for his store managers, he could not define it, he submitted that he managed a “trust system” 71. Understandably, given the hours worked by the Applicant, she legitimately, on a number of occasions sought clarification over what is reasonable overtime, but never received that clarity. The Respondent did not dispute the evidence that the Applicant worked six to seven days per week, most weeks. Based on the evidence, the lack of clarity benefited the Respondent at the expense of the Applicant.

[93] Mr Curnuck was disappointed that the Applicant did not seek permission for the specific time off in lieu that she elected to take. He disregarded the Applicant’s explanation that her previous Manager allowed her to take half an hour before or after her shift (most often on Sundays, in lieu of the excessive overtime that she worked). Mr Curnuck relies on his policy to argue the Applicant “seriously breached” the policy. In sworn evidence he stated that the policy is clear on time off in lieu of overtime and reasonable overtime. In my view, the policy is unclear, which is purportedly why the Applicant attempted many times to seek clarification. The policy in question reads as follows:

“7 Time and Attendance

7.1 Employees are expected to be present and ready to commence work at their designated starting time. It is not acceptable to arrive at the designated starting time and then spend time attending to personal needs before commencement of work.

7.2 Lack of punctuality is considered a serious performance issue.

7.3 Employees, except for salaried staff members, are required to complete and submit timesheets on a weekly basis. Failure to complete or submit a timesheet may result in a delay of the payment of wages.

7.4 An employee, except for salaried staff members, may be required to work hours which are in addition to their ordinary or contracted hours in order to fulfil the performance of their duties (“overtime”). The Company will only require the employee to work overtime if such hours are reasonable.

7.5 Overtime may only be worked with the prior approval of a manager.

7.6 The Company, in exceptional circumstances, offers its salaried employees the ability to take time off in lieu (‘TOIL”) instead of payment of overtime rates for any overtime worked. TOIL is to be taken by agreement and within four weeks of the accrual of the overtime.” 72

[94] Clause 7.5 states “overtime may only be worked with the prior approval of the manager”. This sub-clause appears to apply to all employees including the Applicant. Until Mr Pulizzi was appointed as National Sales Manager, the Applicant’s manager was the Director Mr Curnuck. The Applicant was expected to work if there was a shortage of staff (which the Applicant submitted occurred often). There was no evidence that the Applicant was expected to obtain permission to work additional hours. Evidence for the Respondent made it clear that the Applicant was expected to work additional hours.

[95] The policy further states “the Company, in exceptional circumstances, offers its salaried employees the ability to take time off in lieu instead of payment of overtime rates for any overtime worked…..and is to be taken by agreement within four weeks of the accrual of the overtime”. The contention between the Applicant and Respondent was what constituted reasonable overtime and at what point did the time off in lieu of overtime apply. The Respondent did not clarify this for the Applicant and fluidly applied his policy based on his “trust system”. The Respondent did not explain how he managed the ordinary and overtime hours worked by the Applicant to ascertain whether she worked excessive hours. His responses during the hearing relating to what he defines as reasonable overtime, in my opinion demonstrated his lack of awareness of his legal obligations concerning hours of work.

[96] The Respondent relied on a breach of the policy as a reason for the termination of employment. However, in my opinion the termination of the Applicant for breach of the policy is disproportional to the enforcement of the policy. This issue was considered by the Full Bench in Potter v WorkCover Corporation 73, which expressed the principle as follows:

“[67] …Of course breaching an employer’s policy will not of itself automatically give rise to a valid reason for termination of employment. It depends on the character of the policy and the nature of the breach. The policy in question must be lawful and reasonable.” 74

[97] The Respondent’s policy was unclear, was applied inconsistently and unreasonably and it may be arguable that the expectation to work excessive overtime may be unlawful. The Applicant was subject to the General Retail Industry Award 2010 (Award) and National Employment Standards (NES). The Applicant was not given an opportunity to refuse any of the overtime, as reasonable and unreasonable overtime was not defined. There was no evidence from the Respondent on how time off in lieu is accrued, nor how the overtime is monitored to ensure compliance with the Award or NES. The Respondent conceded that the Applicant was entitled to time off in lieu, but the Respondent did not provide to the Applicant any guidance regarding her entitlement, and further, appeared to be unconcerned with the hours she worked.

[98] The Applicant’s alleged breach of punctuality and time off in lieu was dealt with resulting in a warning on 8 November 2018. There was no evidence that the Applicant was subsequently late or took time off in lieu of overtime after being issued the warning.

[99] The attendance incident following the warning was the absence of the Applicant to attend a job interview for casual sales work, in which she submitted the reason she gave for her absence of one and a half hours was a medical appointment. Because the National Sales Manager required a medical certificate, she falsified a certificate. However, the Respondent relies on this incident as an act of fraud and a valid reason for dismissal separately, should the Commission not accept the other reasons for the dismissal. In relation to the valid reason concerning punctuality and time off in lieu of overtime, the submission relies on events leading up to the warning of 8 November 2018.

[100] The day the Applicant took sick leave, which was also the day she was suspended, the Respondent argues the Applicant failed to ensure the showroom was opened. The evidence did not support the conclusion that the Applicant knew a new staff member was scheduled to commence and that the showroom was left without a staff member to open. The issue arose because the National Sales Manager had already terminated the casual employee on the Saturday that was scheduled to open the showroom; allegedly for advising of her unavailability because of her grandfather’s funeral.

[101] Based on the evidence before the Commission, I do not accept that the Respondent’s reasons concerning attendance, punctuality, time off in lieu of overtime and misconduct for termination were sound, defensible or well founded.

Reports concerning the state of the showroom, her management of it, the alleged lack of motivation of her staff, and alleged comments from the Applicant to another staff member

[102] The Respondent relies heavily on reports from Mr Pulizzi and those submitted in the portal as fact. The Respondent nevertheless says that the Applicant responded to the allegations when she received the suspension email, by way of her email response which was unprompted, and this constituted an opportunity to respond. This proposition is flimsy on the evidence. This issue was considered by the Full Bench decision in RMIT v Asher 75:

“[26] The Full Bench in Osman described this obligation as requiring the employer to take reasonable steps to investigate the allegations and give the employee a fair chance of answering them. It adopted comments of Chief Justice Wilcox in Gibson v Bosmac Pty Limited, approved by Justice Northrop in Selvachandran, where Chief Justice Wilcox said:

“Ordinarily, before being dismissed for reasons related to conduct or performance, an employee must be made aware of the particular matters that are putting his or her job at risk and given an adequate opportunity of defence. However, I also pointed out that the section does not require any particular formality. It is intended to be applied in a practical commonsense way so as to ensure that the affected employee is treated fairly. Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements of the section.” 76 (citations omitted)

[103] The Applicant was denied a fair chance to respond to the allegations and consequently denied procedural fairness. Further, the submission that the Respondent took into account the Applicant’s response before making the decision to terminate her was not convincing.

[104] The Applicant tried to defend herself against the allegations put to her via email. No support person was offered, and while the Act requires that a support person is not denied, the Applicant was not even afforded an opportunity to respond which would give rise to an opportunity for her to request a support person to attend with her. On the face of the evidence, it appears to me that the fate of the Applicant was already decided on the morning of 27 November when she called in sick and was then suspended.

[105] The Respondent relied on a report from the National Sales Manager to determine that the Applicant did not manage the site or her staff. By his own admission, the National Sales Manager had never seen a photoshoot when he formed the view that the state of the showroom was poor. Neither the Director nor National Sales Manager obtained credible evidence to support these allegations. The Director submits the Applicant showed ill intent towards the National Sales Manager; however, the evidence did not support this. The evidence demonstrated that unfair and unreasonable management expectations of the Applicant created a hostile and difficult environment for her.

[106] The witness statements for the Applicant consistently refer to the meticulous attention to detail of the Applicant in the management of the showroom and her conscientious attention to her staff. It was also not disputed that the sales performance of the showroom was its best under her management.

[107] The evidence shows a lack of support or care for the Applicant as she was expected to comply with rules that did not apply equally to all, she was expected to work extensive and unreasonable hours. When she spoke up about sales being stolen, sought clarity over what is reasonable overtime and requested additional staffing resources, she was disregarded or victimised. The National Sales Manager with the authority of the Director implemented decisions directly impacting the Applicant’s management of her showroom, yet she was criticised and held responsible for matters beyond her control. The pressure placed on the Applicant was described by her as bullying. I am mindful to agree.

[108] The lack of concern for the Applicant’s safety and wellbeing is most concerning. The Director and senior management had a state of knowledge of potential safety risks at the Clifton Hill site. There had been a prior situation that resulted in multiple police vehicles on site to capture a criminal that entered the showroom. The Applicant was on her own at the time of the incident and no level of support was offered to her at the time or since, even though she was evidently distressed by the incident. Senior managers disregarded their obligations to ensure the safety and wellbeing of their staff. They knowingly placed staff at risk, and the Applicant’s concerns in this respect were ignored. Rather than addressing the Applicant’s legitimate concerns regarding safety and wellbeing (including overtime and time off in lieu) she was victimised and ultimately dismissed.

[109] The Director in his evidence states that the Applicant demonstrated ill intent towards the National Sales Manager and acted in a way that caused concern that she would damage his business, which prompted his swift action to terminate her employment. The most compelling evidence is the undermining of the Applicant by the National Sales Manager which was supported by the Director. While suspended, the email from the Applicant was evidence that she communicated openly with her staff to inform them of important staffing changes that directly impact them, she also provided follow-up client information to ensure the $30,000 sale she had commenced prior to her suspension did not fall through.

A customer complaint

[110] The Respondent’s reliance on the customer complaint as a valid reason is unsound and not defensible. The client escalated his complaint in writing to Mr Pulizzi on the recommendation of the Applicant. The client writes in his complaint that he had just received advertising for the 15 percent storewide sale, that he is a regular client normally quite happy with the customer service and even though he received a 10 percent discount when he ordered the rug on 31 October 2018, his rug had not been delivered within the two to three week timeframe promised. For these reasons he requested a further discount and enquires about the expected delivery time. In his complaint he refers to the Applicant’s “blunt” explanation that they do not price match retrospectively, but that he was invited to escalate his request.

[111] To criticise the Applicant for the complaint is unfair as she had no authority to grant a further discount, nor was she in a position to explain the delay in his delivery. The evidence was that such complaints were to be escalated to senior management/ Customer Service team. The Respondent did not investigate this complaint to ascertain if the Applicant had acted in such a manner to warrant either a warning or dismissal. The Respondent relies on this customer complaint as a valid reason for dismissal; I do not agree that this reason is sound, defensible or well founded.

An alleged fraud

[112] The alleged fraud asserted by the Respondent relates to the falsified medical certificate by the Applicant. While falsifying medical certificates cannot be condoned, the Respondent is relying on this to support a valid reason, even though the information came to their attention after the dismissal. The Applicant was not afforded an opportunity to reply, thus the expectation is that the Respondent will bear the burden to demonstrate the seriousness of the allegation to warrant a reason for immediate termination. The Respondent also submits that this incident is serious misconduct to find that the dismissal was fair, just and reasonable should I be inclined to disregard the other reasons for the termination of employment.

[113] In my view the Respondent had no regard for the situation that the Applicant found herself in. Despite weak evidence, the Applicant received a warning for taking time off in lieu of working overtime without the authority of the Director. Further, the National Sales Manager demanded a medical certificate for any time off work despite the company policy. The Applicant was subjected to interference in the management of her showroom by her Manager (changing the roster, moving or terminating staff), and unsubstantiated reports were treated as fact to criticise and hold the Applicant at fault.

[114] When she was presented with the opportunity to attend an interview to relieve herself from the environment where she felt bullied and victimised, she admits to producing a medical certificate to save her job.

[115] There was no financial gain for the Applicant by producing the medical certificate, she had already worked excessive overtime and knew the company would not pay the overtime, and time off in lieu was apparently only permitted with the approval of the Director.

[116] While the Applicant’s conduct in forging a medical certificate was intentional because she knew that if she did not have a medical certificate she could lose her job, under the circumstances and in the context in which the act was committed, I do not agree that it was wilful or inconsistent with her contract of employment nor serious enough to cause risk to the health or safety of a person or the reputation, viability or profitability of the business.

[117] Given the environment in which the Applicant found herself in, I am of the view that the falsification of the medical certificate in this case did not justify termination for misconduct.

Conclusion on valid reason

[118] I am satisfied on the evidence before me that the Respondent did not justify termination with or without notice. While the falsification of the medical certificate cannot be condoned, the circumstances that led to the personal state of the Applicant can be understood that her desperation to save her job led to an act of foolishness. Her admission and regret over this act is acknowledged.

[119] The decision to dismiss the Applicant on each of the reasons provided, albeit ultimately with notice is in my view disproportionate to the Applicant’s conduct and performance.

Was the Applicant notified of the reasons for her dismissal and given an opportunity to respond (s.387(b) and (c))?

[120] In considering whether a dismissal was harsh, unjust or unreasonable, the Commission must consider whether the Applicant was notified of the reasons for her dismissal and whether she was afforded an opportunity to respond to the reason relating to her conduct or performance.

[121] In this matter the Applicant was not informed of the reason for her termination prior to her dismissal. As already stated, the reason for the first warning and the reasons for her suspension were not the same as the reasons for her dismissal. Additionally, the suspension letter says that the Director is “escalating the matter for further improvement measures” 77 which appears to imply that he is looking into whether there are performance improvement measures the Applicant needs to take; the suspension letter does not warn the Applicant that she may be terminated.

[122] The evidence does not support a finding that the Applicant understood the reasons for her dismissal, that she had an opportunity to respond, nor was she treated fairly in the process.

[123] The four summarised reasons for the termination of the Applicant as contained in the letter of termination dated 29 November 2018 are:

•  Malicious and ill intent behaviour towards the National Sales Manager, designed to undermine him

•  Unsupportive behaviour since her suspension by communicating with her staff in an attempt to damage the relationship between the Director, National Sales Manager and staff by spreading half-truths, which are considered serious breaches of the anti-bullying and toxicity policies and

•  Negligence in her duties causing the National Sales Manager to step in and with his intervention attain the highest ever gross sales

•  Since the warning of 8 November, she has seriously breached the company policy in relation to attendance

[124] The Applicant was not at any time prior to her dismissal given these reasons and afforded an opportunity to respond. The evidence advanced by witnesses challenged the assumptions relating to each of the reasons given in the letter of termination. Rather than ill intent and malicious behaviour towards the National Sales Manager, sufficient evidence was advanced that the National Sales Manager with the support of the Director acted to undermine the Applicant in her role as Showroom Manager. The National Sales Manager admitted that the sales performance of the Clifton Hill showroom was not attributable to his contribution at all. While under oath he admitted to not doing anything to contribute to the operation other than obtaining telephone reports from the Applicant. He also admitted to altering her showroom roster, terminating an employee, conducting a staff meeting all without her prior knowledge. Further, without addressing his concerns with the Applicant, he provided reports to the Director on his observations of the Applicant.

[125] Submissions that the Applicant breached anti-bullying and toxicity policies were not supported with any of the policies referred to. No policies were submitted to ascertain if there was a breach, or to clarify the detail of the policy relating to toxicity and anti-bullying.

[126] The reason submitted that the Applicant seriously breached the company policy regarding attendance is also flawed as the company’s policy outlined at [93] is vague and incomplete regarding the process for taking time off in lieu of overtime or what is reasonable overtime. An alleged breach of the policy cannot be relied on for the absence on 27 November 2018. It follows that the Respondent relies on the one and a half hours taken off work when the Applicant submitted the reason of a medical appointment to go to a job interview, and the subsequent presentation of a falsified medical certificate.

[127] The evidence is clear that the Applicant was not afforded an opportunity to respond to the reasons for her termination as she was unaware of the reasons until she received her letter of termination on 29 November 2018. No detail of the investigations relating to her suspension were put to the Applicant. Interestingly, none of the reasons for the suspension were advanced as reasons for the termination of employment. I therefore conclude that the reasons in the letter of termination, which are different to the reasons in the suspension email, cannot be relied on to justify valid reasons for dismissal.

Was there an unreasonable refusal to allow a support person present (s.387(d))?

[128] While there was no refusal to allow a support person, there was no opportunity for the Applicant to respond to the allegations, therefore the refusal or otherwise to allow a support person is a neutral factor.

Was the Applicant warned about unsatisfactory performance before the dismissal (s.387(e))?

[129] The Respondent contends that the Applicant was warned about a serious breach of its attendance policy. There was no warning concerning any of the other behaviours that the Respondent contends that the Applicant had seriously breached warranting dismissal.

[130] The Respondent did not present any evidence that the Applicant conducted herself in any way that led to the reasons for her warning of 8 November 2018.

[131] In sworn evidence the Director stated that he did not think it necessary to provide the Applicant with an opportunity show cause why she should not be terminated. 78 The lack of consideration for the Applicant to be given an opportunity to reply to the allegations made against her was obvious.

Considerations relating to the size of the enterprise, and dedicated human resources (s.387(f) and (g))

[132] The Commission is required to consider the degree to which the size of the employer’s enterprise, and the degree to which the absence of dedicated human resources specialists or expertise in the enterprise, would be likely to impact on the procedures followed in effecting the dismissal. 79

[133] The Applicant was critical of the processes of the Respondent in handling all human resource functions. While the Respondent has a dedicated resource, it was obvious in evidence that the Human Resources Manager lacked the required skills for the position. By the Respondent’s own admission, it required legal representation due to the lack of a resource. Despite this, the Respondent contends that its process and reasons for termination were not harsh, unjust or unfair. The Respondent is not characterised as a small employer subject to the small business unfair dismissal code; therefore, this consideration adds to the weight of the unfairness of the termination.

Any other matters the Commission considers relevant (s.387(h))

[134] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission is to take into account any other matters that it considers relevant.

[135] The process undertaken by the Respondent was to communicate to the Applicant via electronic means when counselling and in the delivery of the letter of suspension and termination. It is commonly expected that a person would be given a right to hear the concerns, to seek clarity and be given a right to respond in person. The Applicant was denied an explanation of the employer’s concerns regarding her conduct or performance and she did not have an opportunity to respond. She was unaware of the allegations made against her, and the reasons for the termination were not the reasons in the suspension letter nor the letter of warning in November 2018. In my view, relying on electronic communication to terminate the Applicant was grossly unfair.

[136] The proportionality of the dismissal to the conduct that is the subject of the Respondent’s alleged valid reason is a matter to be considered in connection with s.387(h).

[137] The falsified medical certificate was raised only during the hearing. The Respondent did not reveal its knowledge of a false certificate until it filed its outline of submissions two business days before the hearing. The Respondent submitted that this act of “fraud” was so serious enough to warrant termination of employment for serious misconduct. 80 On the evidence in this case, the position is not black and white. While falsifying a medical certificate cannot be condoned, there were relevant extenuating circumstances that led to what the Applicant admitted was a foolish act in desperation. I consider that the circumstances of this case warranted discipline for this transgression, but a termination of employment is in my opinion disproportionate. The Respondent relies on this transgression as serious misconduct.

[138] In this matter I do not conclude that the conduct of the Applicant warranted an immediate dismissal with or without notice.

Conclusion

[139] In reaching my conclusion, I have weighed up the written material submitted and the sworn witness evidence to form the view that the Applicant was not afforded procedural fairness and the evidence relied on to support the alleged breaches of company policy or “serious breaches” as described by the Respondent were not valid to justify dismissal.

[140] The sworn evidence for the Respondent in my opinion is not compelling or reliable to satisfy that the dismissal was not harsh, unjust or unfair. I note the inconsistency in the evidence, the lack of relevant materials on which they rely (actual company roster and policies concerning toxicity and bullying) and the disregard of the Applicant’s legitimate requests for clarity concerning her workplace rights and the lack of support to perform her duties. I have taken into account explanations concerning the demands to work unreasonable and excessive overtime without any regard for her wellbeing and to ensure that she takes her entitled time off in lieu of the overtime worked. The behaviour at the hands of mostly the Director and National Sales Manager towards the Applicant I do not accept as reasonable management conduct.

[141] Taking into account all of the considerations in s.387, I consider that the dismissal of the Applicant was harsh, unjust or unreasonable and that accordingly her dismissal was unfair.

[142] Section 390 of the Act provides that the Commission may order reinstatement or the payment of compensation to a person if it is satisfied that the person is protected from unfair dismissal at the time of the dismissal and the person was unfairly dismissed. However, the Commission may order compensation if reinstatement is inappropriate and compensation is appropriate in the circumstances of the case. The Applicant is not seeking reinstatement and I am satisfied it is inappropriate to reinstate her. I consider it in the circumstances that an award of compensation is appropriate.

[143] Section 392 of the Act provides for the considerations when deciding amounts of compensation. The amount should not include compensation for shock, distress or humiliation. I have used the Sprigg 81 methodology to assess the appropriate compensation amount to be awarded.

[144] There is no evidence that the compensation amount will have an adverse effect on the viability of the employer’s business. The Applicant was into her fourth year of employment, she was in receipt of a salary of $70,000 per year plus commission and she had found casual work on 6 February 2019 and has mitigated the loss she suffered.

[145] Section 392(2)(c) provides that the Commission must take into account the remuneration that the person would have received, or would likely have received, if she had not been dismissed. Putting aside the motivations of the Director and National Sales Manager for their treatment of the Applicant, it is reasonable to estimate that the Applicant would remain in employment for at least a year. The evidence confirms that the Applicant was successful in sales which resulted in the Clifton Hill site to be the best performing, her skills in styling and the photoshoots were valued and following her warning, the Applicant did not take leave without authority. Based on these considerations, the Applicant would have earned at least $70,000 for the year (excluding commissions). The Applicant submitted her earnings in her casual job. The gross figure is therefore discounted by those earnings.

[146] The Applicant was employed for just over four years and her weekly rate of pay (excluding commissions) was $1,346 per week.

[147] The amount of remuneration received in alternative employment is $730 per week.

[148] For the purposes of the calculation of remuneration the Applicant would have received had she not been dismissed would have been at least $70,000. The Applicant was out of work for a period of nine weeks, therefore the potential remuneration over the 52 weeks is discounted by anticipated earnings over 52 weeks from the casual position to an amount of $31,390. I have also discounted the final sum due to the Applicant’s admission to falsifying a medical certificate by 30 percent. This has therefore been calculated as a figure of $21,973 (less taxation as required by law). This figure does not exceed the compensation cap as prescribed by s.392(5) of the Act.

[149] This payment is to be made to the Applicant within 28 days of the date of this decision.

[150] An order giving effect to this decision will be separately issued.

COMMISSIONER

Appearances:

Ms. E O’Brien on her on behalf

Mr N Tindley for the Respondent

Hearing details:

2019

Melbourne

29-30 April 2019

Printed by authority of the Commonwealth Government Printer

<PR712023>

 1   Fair Work Act 2009 (Cth) s.382.

 2   Oral submissions; cross-examination of Mr Wayne Curnuck.

 3   Suspension Email.

 4   Ibid.

 5   Letter of Termination of 29 November 2019.

 6   Ibid.

 7   Ibid.

 8   Ibid.

 9   Curious Grace Final Payslip of 5 December 2019.

 10   Employee Separation Certificate emails of 17 and 18 December 2018.

 11   Exhibit A2.

 12   Defining ‘Reasonable Overtime’ emails of 1 November 2018.

 13   Cross-examination of Mr. Pierre Pulizzi.

 14   Cross-examination of Ms Emily O’Brien.

 15   Ibid.

 16   Exhibit A8.

 17   Exhibit A2 at [15] and Applicant’s oral submissions.

 18   Cross-examination of Mr Wayne Curnuck.

 19   Applicant’s oral submissions; cross-examination of Ms Emily O’Brien.

 20   Cross-examination of Mr Wayne Curnuck.

 21   Ibid.

 22   Cross-examination of Ms Emily O’Brien.

 23   Exhibit R2 at WC-6.

 24   Exhibit A1.

 25   Examination in-chief and cross-examination of Ms Marisa Wanefalea.

 26   Exhibit A1.

 27   Ibid.

 28   Cross-examination of Ms Marisa Wanefalea.

 29   Exhibit A5.

 30   Exhibit A6.

 31   Ibid.

 32   Exhibit A4.

 33   Exhibit A3.

 34   Exhibit R2.

 35   Cross-examination of Mr Wayne Curnuck.

 36   Exhibit R2 at WC2.

 37   Cross-examination of Mr Wayne Curnuck.

 38   Ibid.

 39   Exhibit R2 at WC7.

 40   Ibid at [22].

 41   Ibid at [24]; WC8.

 42   Ibid at [23]; cross-examination of Mr Wayne Curnuck.

 43   Ibid at [25].

 44   Ibid at [25], [28]; WC9; WC11.

 45   Ibid at WC12.

 46   Ibid at [26]; WC10.

 47   Ibid.

 48   Ibid WC13.

 49   Cross-examination of Mr Pierre Pulizzi on 29 April 2019.

 50   Ibid.

 51   Exhibit R2 at [30].

 52   Exhibit R1.

 53   Ibid at [12].

 54   Cross-examination of Mr Pierre Pulizzi.

 55   Ibid.

 56   Ibid.

 57   Exhibit R1 at [19].

 58   Cross-examination of Mr Pierre Pulizzi.

 59   Ibid.

 60   Ibid.

 61   Ibid.

 62   Ibid.

 63   Fair Work Act 2009 (Cth) s.385(b).

 64   Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333 at p.373.

 65   Rode v Burwood Mitsubishi AIRCFB [1999] at [19].

 66   Walton v Mermaid Dry Cleaners Pty Ltd [1996] IRCA 267 (12 June 1996) at p.685.

 67   Fair Work Regulations 2009 reg 1.07.

 68   APS Group (Placements) Pty Ltd v O’Loughlin [2011] FWAFB 5230 at [51].

 69   Exhibit R2 at WC6.

 70   Applicant’s Performance Meeting Minutes filed 3 March 2019.

 71   Cross-examination of Mr Wayne Curnuck.

 72   Exhibit R2 at WC5.

 73   (2004) 133 IR 458.

 74   Ibid at [67].

 75   (2010) 194 IR 1.

 76   Ibid citing Abdel-Karim Osman v Toyota Motor Corporation Australia Ltd (2000) 98 IR 233 at [9]-[10].

 77   Suspension email.

 78   Cross-examination of Mr Wayne Curnuck.

 79   Fair Work Act 2009 (Cth) ss.387(f), (g).

 80   Respondent’s oral submissions.

 81   Sprigg v Paul Licensed Festival Supermarket (1998) 88 IR 21.