DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Angele Chandler
v
Bed Bath N’ Table
(U2019/2368)

Application for relief from unfair dismissal.

[1] On 4 March 2019, Ms Angele Chandler (Applicant) made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy, alleging that she had been unfairly dismissed from her employment with Bed Bath n’ Table Pty Ltd (Respondent). The Applicant seeks reinstatement, an order for compensation and an apology. 1

[2] The Respondent lodged a jurisdictional objection that the Applicant was a casual employee and was not regularly and systematically employed and had no reasonable expectation of continuing employment and therefore was not a person protected from unfair dismissal. 2

[3] On 20 September 2019 the jurisdictional objection was upheld in a decision by Deputy President Mansini. 3 The Applicant lodged an appeal to the decision and on 23 January 2020 the decision of the Deputy President was quashed by the Full Bench of the Fair Work Commission who ordered the matter be referred back to the Unfair Dismissal Case Management Team for allocation to and final determination by a Commission Member.4 The matter was allocated to me on 2 April 2020.

When can the Commission order a remedy for unfair dismissal?

[4] Section 390 of the FW Act provides that the Commission may order a remedy if:

(a) the Commission is satisfied that the Applicant was protected from unfair dismissal at the time of being dismissed; and

(b) the Applicant has been unfairly dismissed.

[5] Both limbs must be satisfied. I am therefore required to consider whether the Applicant was protected from unfair dismissal at the time of being dismissed and, if I am satisfied that the Applicant was so protected, whether the Applicant has been unfairly dismissed.

When is a person protected from unfair dismissal?

[6] Section 382 of the FW Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.

When has a person been unfairly dismissed?

[7] Section 385 of the FW Act provides that a person has been unfairly dismissed if the Commission is satisfied that:

(a) the person has been dismissed; and

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

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

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

Background

[8] The uncontested factual background to the matter is as follows:

•  the Applicant accepted an offer of employment with the Respondent on 15 June 2018,

•  the Applicant was hired as a Casual Sales Assistant;

•  the Applicant was based at the Respondent’s Essendon store;

•  the Applicant worked her first shift on 25 June 2018 and her last shift on 28 February 2019;

•  the Applicant was dismissed on 1 March 2019. 5

The hearing

[9] There being contested facts involved, the Commission is obliged by s.397 of the FW Act to conduct a conference or hold a hearing.

[10] The parties were given an opportunity to resolve the dispute by negotiation at a member assisted conciliation on 14 April 2020 with another Commission Member. The dispute remained unresolved.

[11] After taking into account the views of the Applicant and the Respondent and whether a hearing would be the most effective and efficient way to resolve the matter, I considered it appropriate to hold a determinative conference on 23 April 2020. 6

Permission to appear

[12] The Respondent sought to be represented before the Commission by a lawyer.

[13] Relevantly, s.596(1) of the FW Act provides that a party may be represented in a matter before the Commission by a lawyer or paid agent only with the permission of the Commission.

[14] Section 596(2) of the FW Act provides that the Commission may grant permission for a person to be represented by a lawyer or paid agent in a matter before the Commission only if:

(a) it would enable the matter to be deal with more efficiently, taking into account the complexity of the matter; or

(b) it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or

(c) it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.

[15] The decision to grant permission is not merely a procedural step but one which requires consideration in accordance with s.596 of the FW Act. 7 The decision to grant permission is a two-step process. First, it must be determined if one of the requirements in s.596(2) of the FW Act have been met. Secondly, if the requirement has been met, it is a discretionary decision as to whether permission is granted.8

[16] On the question of representation, the Respondent submitted that:

•  while the Respondent employs a small human resources team, the members of the team have very limited experience within the Commission’s jurisdiction; therefore, a refusal to allow the Respondent to be represented by a lawyer would result in unfairness given the Respondent’s inability to represent itself effectively; and

•  given the complexity of legal issues involved, a legal representative will be able to assist the Commission in distilling these issues and narrowing the matters to be considered, thus allowing the matter to be dealt with more efficiently. 9

[17] The Applicant contradicted both the above grounds advanced by the Respondent. Although there is no evidence before the Commission to suggest that the Respondent’s assertion is incorrect that its human resources team has limited experience within the Commission’s jurisdiction, I doubt that an organisation of the Respondent’s size will employ individuals incapable of representing the Respondent effectively. More importantly, however, both the procedural history and the legal and factual issues raised lend this matter a degree of complexity that justifies granting permission for the Respondent to be represented.

[18] The Applicant also submitted that allowing the Respondent to be represented would put the Applicant at a disadvantage as the latter was unrepresented. 10 In this respect, I agree with the Respondent’s submission that disadvantage may be a relevant factor pursuant to s.596(2)(c) of the FW Act where it weighs in favour of granting a party permission to be represented. That provision cannot, however, be used to deny representation.11

[19] Having considered those matters, I determined at the determinative conference that allowing the Respondent to be represented by a lawyer would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter as per s.596(2)(a) of the FW Act.

[20] I have therefore decided to exercise my discretion to grant permission for the Respondent to be represented.

[21] Accordingly, at the determinative conference on 23 April 2020, the Applicant was self-represented and the Respondent was represented by Mr Nick Tindley of FCB Group.

Witnesses

[22] The Applicant herself and Ms Daniella Papazoglou (former Assistant Store Manager at the Respondent) gave evidence on the Applicant’s behalf.

[23] Ms Katerina Faill (Regional Manager at the Respondent) gave evidence on the Respondent’s behalf.

Submissions

[24] Final written submissions were filed by the Applicant on 6 May 2020. Final written submissions were filed by the Respondent on 21 May 2020.

Has the Applicant been dismissed?

[25] A threshold issue to determine is whether the Applicant has been dismissed from her employment.

[26] Section 386(1) of the FW Act provides that the Applicant has been dismissed if:

(a) the Applicant’s employment with the Respondent has been terminated on the Respondent’s initiative; or

(b) the Applicant has resigned from their employment but was forced to do so because of conduct, or a course of conduct, engaged in by the Respondent.

[27] Section 386(2) of the FW Act sets out circumstances where an employee has not been dismissed, none of which are presently relevant.

[28] There was no dispute and I find that the Applicant’s employment with the Respondent terminated at the initiative of the Respondent.

[29] I am therefore satisfied that the Applicant has been dismissed within the meaning of s.385 of the FW Act.

Initial matters

[30] Under s.396 of the FW Act, the Commission is obliged to decide the following matters before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy.

Was the application made within the period required?

[31] Section 394(2) of the FW Act requires an application to be made within 21 days after the dismissal took effect.

[32] It is not disputed and I find that the Applicant was dismissed from her employment on 1 March 2019 and made the application on 4 March 2019. I am therefore satisfied that the application was made within the period required in s.394(2) of the FW Act.

Was the Applicant protected from unfair dismissal at the time of dismissal?

[33] I have set out above when a person is protected from unfair dismissal.

Minimum employment period

[34] It was not in dispute and I find that the Respondent is not a small business employer, having 15 or more employees at the relevant time.

[35] It was not in dispute and I find that the Applicant was an employee, who commenced her employment with the Respondent on 25 June 2018 and was dismissed on 1 March 2019, a period in excess of six months.

[36] It was not in dispute and I find that the Applicant was an employee.

[37] As determined by the Full Bench of the Fair Work Commission, the Applicant was a casual employee employed on a regular and systematic basis and had a reasonable expectation of continuing employment with the Respondent on a regular and systematic basis. 12

[38] I am therefore satisfied that, at the time of dismissal, the Applicant was an employee who had completed a period of employment with the Respondent of at least the minimum employment period.

Modern award coverage

[39] It was not in dispute and I find that, at the time of dismissal, the Applicant was covered by an award, being the General Retail Industry Award 2010.

[40] I am therefore satisfied that, at the time of dismissal, the Applicant was a person protected from unfair dismissal.

Was the dismissal consistent with the Small Business Fair Dismissal Code?

[41] Section 388 of the FW Act provides that a person’s dismissal was consistent with the Small Business Fair Dismissal Code if:

(a) immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person’s employer was a small business employer; and

(b) the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal.

[42] As mentioned above, I find that the Respondent was not a small business employer within the meaning of s.23 of the FW Act at the relevant time, having in excess of 14 employees, including casual employees employed on a regular and systematic basis.

[43] I am therefore satisfied that the Small Business Fair Dismissal Code does not apply, as the Respondent is not a small business employer within the meaning of the FW Act.

Was the dismissal a case of genuine redundancy?

[44] Under s.389 of the FW Act, a person’s dismissal was a case of genuine redundancy if:

(a) the employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and

(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

[45] It was not in dispute and I find that the Applicant’s dismissal was not due to the Respondent no longer requiring the Applicant’s job to be performed by anyone because of changes in the operational requirements of the Respondent’s enterprise.

[46] I am therefore satisfied that the dismissal was not a case of genuine redundancy.

[47] Having considered each of the initial matters, I am required to consider the merits of the Applicant’s application.

The evidence

[48] The Applicant was employed as a casual sales assistant and her duties included sales, customer service, stock replenishment, as well as various other duties. It is apparent she worked without any issues of concern with her performance from the start of her employment until at least the end of January 2019.

[49] The Respondent concedes that the Applicant had never been disciplined, or spoken to regarding any issues with her performance or conduct during her employment and had never received any warnings (written or verbal) regarding customer complaints, employee complaints, conduct complaints, or performance complaints or issues. 13 However, it was also submitted that the Respondent considers that the Applicant’s discussions with Ms Faill and Ms Yvette Dowlan (National Human Resources Manager) leading up to her termination do amount to her being spoken to about her performance or conduct.14

[50] In a letter dated 27 February 2019, the Applicant was accused of being aggressive to Ms Marijana Lazarevska (Store Manager for the Respondent). 15 The Applicant denied the allegation when put to her at the determinative conference.16 There was no evidence from Ms Lazarevska. I accept the Applicant’s evidence on this matter and do not accept that the Applicant was aggressive to Ms Lazarevska.

[51] According to the letter of termination, the Applicant was dismissed for a variety of reasons. These are set out in the letter of termination signed 1 March 2019.

[52] In the Respondent’s submissions filed prior to the determinative conference, it was said that the Applicant engaged in three instances of misconduct as follows:

“•  The first related to her failure to comply with the Respondent’s policy with respect to notification of absences. That misconduct is elevated because not only did the Applicant fail to comply with the policy which applied generally (albeit she asserts it was not enforced at her store), she failed to comply with a specific direction in relation to this from her Regional Manager, Ms Faill. Ms Faill specifically directed the Applicant to contact her by telephone to confirm whether she would be able to attend her shift on 14 February 2019. The Applicant failed to do so and instead elected to send a text message to the Store Manager communicating her inability to attend work.

•  The second instance of misconduct related to the Applicant’s conduct during the meeting of 26 February 2019. The Applicant’s conduct was disrespectful, insubordinate and intimidating. The Applicant refused to accept her superior, Ms Faill’s, explanation and position, and continually reiterated complaints that were demonstrated to have no substance. Ms Faill reported feeling threatened by the Applicant’s conduct. The Applicant’s conduct created a threat to the health and safety of Ms Faill.

•  The third instance of the Applicant’s misconduct is evidenced through the email sent by her to Ms Faill on 27 February 2019. The tone of that email is appalling in its lack of respect for Ms Faill and her position. It is a continuation of the disrespectful, insubordinate and intimidating conduct she had engaged in during the meeting of the previous day.” 17 (footnotes omitted)

[53] At the time of the determinative conference, these were the reasons relied on by the Respondent as the valid reasons for the Applicant’s dismissal. For convenience, I will refer to the reasons above as the first, second and third reason throughout the decision.

[54] Before considering the evidence further, it is necessary to set out some of the background of what was occurring in the workplace as it pertains to the Applicant, in the lead up to the dismissal.

The reduction in the Applicant’s hours of work

[55] The Applicant, up until January 2019, regularly worked around 20 to 25 hours per week. 18 The Respondent conceded19 that the Applicant’s hours of work were reduced in January 2019 and February 2019, as asserted in paragraphs 22 and 23 of the Applicant’s witness statement:

“22. For the month of January 2019 I noticed that my allocations of hours were slightly reduced. I did not communicate any concerns to Ms Lazarevska because I had worked quite a bit over the Christmas period and accepted a little reprieve.

23. For the month of February 2019 after the rosters were release I notice again a reduction in my hours, and not for other employees, even though I gave majority of the month availability with the exception of 3 days. Rosters provided as evidence.” 20

[56] The Respondent agreed 21 with the evidence of the Applicant that Ms Faill, via text messages, arranged for a shift at Highpoint which the Applicant accepted a week prior.

[57] The Respondent submits that the Applicant protested “vehemently” the reduction in hours at the end of January 2019 and through February 2019. 22

[58] The Respondent accepted that:

“… it took the decision in the middle of February 2019 to provide the Applicant with one shift per week while it considered her availability and reliability.” 23

[59] The Respondent submitted that:

“8. The difficulty with the Applicant’s vehement protests regarding her hours of work are that the reduction of actual hours worked in February in particular were due to a significant extent to:

a) the Applicant’s limited availability during that month; and

b) the Applicant’s refusal to accept shift at the Moonee Ponds store; and

c) the Applicant being absent due to illness for two days.

9. In the four-week period immediately before the peak Christmas trade period commenced at the start of December 2018, the Applicant worked a total of 60.25 hours. In the four-week period commencing on 28 January 2019 and continuing to the cessation of her employment the Applicant worked 50 hours. She was also absent from work for two shifts and rejected another 5-hour shift. The Applicant’s discontent was founded on a false understanding of how her hours of work had changed (See Attachment A to these submissions which sets out the Applicant’s hours worked).” 24

[60] The Applicant stated that she had noticed her hours were slightly reduced in January 2019 but did not communicate her concerns to Ms Lazarevska because she had worked quite a bit over the Christmas period and accepted a little reprieve. In February 2019, the Applicant again noticed a reduction in her hours when compared to other employees and provided rosters to substantiate this claim. 25

[61] The controversy over the hours is important as it is clearly a key issue with respect to two of the three reasons relied on by the Respondent for dismissing the Applicant.

The first reason for the dismissal

[62] I will now deal with the first reason relied on which relates to the alleged failure of the Applicant to properly notify of her absence.

[63] The Respondent’s policy provides as follows:

“Attendance and Punctuality

Regularity of attendance and punctuality is expected of each employee.

However, there are times when absence or lateness is unavoidable. In these instances, you must make every effort to contact your Manager at least 2 hours before your scheduled work time. If you are scheduled to work the first shift of the day, then you must notify your Manager by 7:30 am on that day. If you are going to be late for a shift, you must make every effort to contact your Manager as soon as possible, to inform them of your expected time of commencing your shift.

Excessive absenteeism or tardiness can result in disciplinary action being taken, up to and including termination of employment.

Reporting Absences

If it is necessary for you to be unexpectedly absent for any reason, you must notify your Manager by telephone (a text message does not satisfy this requirement and is unacceptable) at least two (2) hours before you are due to report for work. This is mandatory so plans can be made for your duties to be assumed by someone else or divided among your co-workers. Reporting your absence to one of your co-workers does not satisfy this requirement.

You should report daily if your absence extends beyond one (1) day. If you do not report as required for three (3) consecutive days/shifts, it will be deemed that you have abandoned your position, and after due process has been followed and no response has been received from you, your employment will be terminated.” 26

[64] The Applicant’s evidence was that she was sick due to influenza on 13 February 2019, that she did not have her phone with her when Ms Faill attempted to call the Applicant to ask whether the Applicant would be available to work on 14 February 2019, and that she would have contacted Ms Faill out of courtesy had she known of Ms Faill’s attempt to contact her. On the Applicant’s evidence, she appears to have been unaware that Ms Faill had asked to be contacted directly. 27

[65] Evidence was also given that the Applicant frequently texted the Store Manager regarding absences. 28 There had been no apparent rebuke from the Store Manager for doing so, The text message exchange on 13 February 2019 between the Applicant and the Store Manager reflects that.29

[66] In any case, the Applicant did text the Store Manager, and on her evidence, which I accept, was unaware that Ms Faill wanted her to contact her directly.

[67] It is clear that the Respondent’s policy provided that absences were to be notified by phone call and that sending texts was not acceptable. Therefore, the Applicant in texting her impending absence was not conforming with the policy of the store. Notwithstanding that, the Applicant communicated her absence in a manner she traditionally used and had not been admonished for in the past. The evidence of Ms Faill was that she left a voicemail that asked for a call back from the Applicant to confirm her unavailability. 30 However, the evidence adduced at the determinative conference suggested that the Applicant was unaware of the voicemail at the time it was left. Moreover, it appears uncertain at what later time, or even if, the Applicant became aware that a voicemail was left by Ms Faill.31 I accept the Applicant’s evidence that at the relevant time she was unaware of the specific directions of Ms Faill to contact her. In considering all of the circumstances, I am not satisfied that the first reason for the dismissal is a sound and defensible, and therefore valid, reason for the dismissal.

The second reason for the dismissal

[68] The second reason relates to the meeting on 26 February 2019. The Applicant’s evidence is that on that day she was rostered to work, and she arrived to work at approximately 8.50am. She went to the storeroom and viewed the newly released rosters. The Applicant was shocked and distressed to discover that she had received just one 5-hour shift each week in March 2019. The Applicant says that she was concerned and feeling ill. She told Ms Lazarevska, the Store Manager, that she was unwell and wanted to go home. Ms Lazarevska told the Applicant that Ms Faill was coming to the store that day and wanted to meet with the Applicant. Ms Lazarevska told her not to sign on for the day. The Applicant then went back to her car in the car park to wait for Ms Faill to arrive. At that point the Applicant decided that she will record the impending meeting with Ms Faill as she claimed to be fearful as to what the meeting was about. 32

[69] However, the evidence of Ms Faill is that Ms Lazarevska told her the Applicant wanted to see her. 33 Ms Faill confirmed this evidence at the determinative conference.34 The email exchange on 26 and 27 February 2019 is consistent with the views of both witnesses.35 That is, both of them say that Ms Lazarevska told them separately that each wanted to speak to the other. Ms Lazarevska did not provide evidence at the determinative conference. I am satisfied on the evidence that both women are truthful on this point. That is, both were told by Ms Lazarevska that each wanted to speak to the other.

[70] The evidence of Ms Faill as to what happened at that meeting was:

“11. At approximately 8.50am I was in the back area at the stock reserve having a discussion with the HR Manager. I introduced Ms Chandler to the HR Manager, who then left the area. I then had a discussion with Ms Chandler about her hours and her failure to comply with the obligation to notify directly her absences.

12. Ms Chandler was complaining strongly about what she perceived as a reduction in her hours of work. I attempted to explain to her that she had made herself unavailable for the majority of days during February, and as such there was no ability for the business to offer her additional hours. In this regard there were weeks where she was listed as not available for up to four and five days. At multiple points during the discussion Ms Chandler sought to say that she didn’t make herself unavailable on those days, however then accepted that she did, albeit that it was the Store Manager who recorded this unavailability.

13. During the discussion I found Ms Chandler to be unreasonable and unprepared to accept my answers. She became quite angry as the discussion progressed, turning red in the face and stepping towards me in what I felt was an aggressive manner. I felt very uncomfortable with her conduct and became fearful of her. Despite her agreeing that she had made herself unavailable for the majority of days each week in the month of February, she continued to demand to know why her hours had been reduced. I became fearful of her conduct and did not want to be in her presence. I advised her that I had another meeting and needed to end the discussion. I did this twice before I was able to bring the discussion to an end.” 36

[71] However, Ms Chandler’s evidence as to what happened at the meeting was as follows:

“1. On the morning of the 26th February 2019 at approximately 8.50am, when I arrive to work, feeling ill, I advised Ms Lazarevska that I was not well.

2. When I approached the store room and viewed the released rosters for March 2019, I was shocked and distressed that I only received (1) 5 hour shift per week.

3. A Colleague Ms Katerina Rebuffo was there, and said “what’s going on with your hours?” I went out to the register counter where Ms Lazarevska was standing with the trainee Regional Manager (Lisa), and said I was unwell and would like to go home.

4. Ms Lazarevska asked me what was wrong and escorted me to the store room. I asked Ms Lazarevska why I received (1) 5 hour shift per week, and she said Ms Faill wanted to speak with me about this, and advised she was on her way to the store.

5. Knowing that I was unwell, Ms Lazarevska advised not to sign on, so I waited in my car until Ms Faill arrived, as I was unwell, embarrassed and need to sit down.

6. I noticed Ms Faill and another person arrive at the store, as I was in my car directly outside the store. I waited a few minutes and then went in the store to see Ms Faill as requested by Ms Lazarevska.

7. When I was waiting in my car, I was quite distressed and did not know why the Regional Manager wanted to speak with me. I was caught off guard and decided to record the conversation. Why Ms Faill wanted to speak with me, was scary to say the least and did not make sense, hence the recording.

8. I could not get the attention of any colleagues in the store and went through the café next door, which has a temporary sliding access door, to the store.

9. When I arrive in the store room Ms Faill introduced me to Ms Dowlan (HR Manager). Ms Dowlan left the store room.

10. Ms Faill advised she wanted to speak with me regarding ‘texting’, yet Ms Faill advised in her email, that Ms Lazarevska told her I wanted to speak with her. (confused)

11.Ms Faill made provided me with information about the Travel Allowance query. She advised that Casuals do not receive the Travel Allowance and is only for Part Time and Full Time employees. It has since been confirmed by the Fair Work Ombudsman that Travel Allowance is payable to ‘employees’ and does not specify classifications. (APPENDIX 16).

…

14. Ms Faill proceed to advise me of my wrong doing, and made reference to the Employee Handbook, which I had not read for over 8 months since my on boarding.

15. I advised Ms Faill that on occasions, other colleagues did ‘text’, but she was not made aware of this, only Ms Lazarevska brought this up to her about me only.

16. Ms Faill advised that when I ‘texted’ Ms Lazarevska the following day 14^th February 2019, still quite unwell, that Ms Faill herself was standing there I did so. Mobile phones are not permitted on the shop floor, so I am unsure how Ms Faill knew I had texted that moment.

…

19. I asked Ms Faill the question of the allocation of hours for the month of March 2019, and was advised that I did not provide availability and consistency for the business to effectively provide me with hours. …

…

21. Trying to explain the reasons for placing NA (Not Available) after the rosters were released, did not seem to matter to the decision Ms Faill had made to reduce my hours.

22.Ms Faill could not understand what I was trying to say, and I had to repeat myself on several occasions.

23. Ms Faill also included the reason for me being ill early that month, and that I am allowed to be ill, but does not show consistency to the business to then provide hours over a 3 week period in February 2019.

24. Ms Faill advised towards the end of the conversation a Statement of Concerns can be provided to her.

25. I sent the emails on the 26th February 2019 and 27th February 2019 to Ms Faill as per her request.

…

27. Ms Faill concluded the conversation as she advised she and Ms Dowlan had to attend another meeting with Ms Lazarevska.

28. I advised Ms Faill that I was quite distressed and ill and left for the day. No comment or response was made.” 37

[72] During the hearing the Applicant provided evidence that she was fearful of the discussions with Ms Faill due to her position as Regional Manager 38 and that during the meeting they had discussed Ms Faill’s direction to reduce the Applicant’s hours.39 The Applicant stated:

“I was trying to advise Ms Faill that I had a strong availability and I was trying to show her on the roster, and I was also trying to show her the roster that was released that showed my strong availability, but Ms Faill kept on pointing out that I made myself unavailable on a week-to-week basis on the days that I wasn't rostered on.” 40

[73] The Applicant did not inform Ms Faill at that time nor at any time up until the filing of the material for this determinative conference that she recorded their conversation. I deal with that matter subsequently. Nevertheless, there is audio recording of the discussions. On listening to that, it is sometimes hard to hear the Respondent, but the Applicant can be clearly heard. In my view, the recording does not support the claims of Ms Faill as to the nature of the discussions. The Applicant is certainly forthright. She clearly feels that Ms Faill does not understand the manner in which the Applicant communicates her unavailability. The latter part of the conversation is a confused and rather circular conversation that I have no doubt Ms Faill found frustrating.

[74] The evidence, including the audio recording, supports the Applicant’s characterisation of her conversation with Ms Faill. The applicant explained and re-explained the way in which she made herself unavailable for her shifts and repeated this a number of times, clearly believing that Ms Faill did not understand. While Ms Faill I think does understand the rostering, the Applicant was making her case against the background of having her shifts decreased to only one shift and not understanding why this occurred. As the Applicant was being told it was because of her lack of availability, she repeatedly disputed that she was unavailable.

[75] In any event, while the conversation was robust, the audio recording is not consistent with Ms Faill’s version that the Applicant was aggressive and that Ms Faill felt intimidated and uncomfortable. 41 Subsequent to the meeting, the Applicant sent some emails to Ms Faill, who responded on 27 February 2019 with the following:

“Hi Angela,

Please know you can contact our HR department at our head office on 03 8888 8100 any point to discuss any issues you may feel need to be raised.

Yesterday was not a disciplinary meeting for a formal meeting. Hence no notes taken not meeting lodged, Yvette & myself where at the Essendon store on a different matter totally.

Mirjana the manager had told me you wanted to speak with me & had roughly broached the subject around rostering.

I have CC’ed the HR manager into this email to make all aware & to be open & transparent to the matter.

Thank you.

Katirena” 42

[76] There is nothing in that email that suggests that Ms Faill had any concern at all about the conduct of the Applicant at the meeting. Nor did Ms Faill at any time during the meeting counsel the Applicant about her behaviour.

[77] The email from Ms Faill to the Applicant on 27 February 2019 as well as the audio recording of the conversation by the Applicant do not support Ms Faill’s evidence as to the conduct of the Applicant in the conversation. To the extent there is a conflict on the evidence between the Applicant and Ms Faill as to what occurred in the conversation of 26 February 2019, I prefer the evidence of the Applicant.

[78] I am not satisfied that the conversation of 26 February 2019 can be characterised as disrespectful. There is nothing disrespectful about the Applicant’s language. As to being insubordinate, this is “refusing to obey orders from someone in authority, and not showing respect for them”, 43 while the Applicant questioned the decision maker’s authority, there is no indication that the Applicant refused to obey orders or was disrespectful.

[79] The claim that the Applicant’s conduct created a threat to the health and safety of Ms Faill is simply not made out on the evidence. Having regard to the evidence, I am not satisfied that the Applicant is guilty of the alleged misconduct set out in the second reason. I am not satisfied that this is a valid reason for dismissal.

The third reason for the dismissal

[80] The third reason relates to the emails of 26 and 27 February 2019. Those emails are copied verbatim below. 44

[81] From the Applicant to Ms Faill on 26 February 2019 at 2.00pm:

“Good Afternoon Katirena,

Thanks for taking the time to speak with me today with regards to the unfair rostering as we have previously discuss in January and February 2019.

I was unaware that this unscheduled meeting was going to take place today, which the Store Manager was aware of your visit today and she advised me that you were going to have a conversation with me, yet no contact had been made prior.

I was unaware there had been any issues or concerns with regards to my communication with the Store Manager until this mornings unscheduled discussion with yourself. Had I been aware that all employees not only myself were not meeting the business’ guidelines, I would have made every effort to adhere to the written procedures.

There are two clauses with regards to Attendance and Punctuality, as well as the Reporting Absences. Please advise which one I am to adhere to moving forward.

Please also advise when you are to going to arrange all employees individual statements to address all our concerns as you mentioned during today’s meeting, before any further actions are taken.

Kind regards

Angela Chandler”

[82] From the Applicant to Ms Faill on 26 February at 7.54pm:

“Good Evening Katirena,

Could you please provide me with BBNT dispute resolution process practices as I don’t feel that today’s conversation complied with any correct procedure quickly, fairly and in a confidential manner.

I was not made aware at store level there had been any issues or concerns to warrant a unscheduled meeting with yourself today, that I wasn’t prepared for.

I was not offered any support person and the sensitive conversation was held in the open of other employees which has now caused gossip amongst other employees.

There wasn’t any efforts made to resolve this and felt I was verbally dismissed and couldn’t work towards resolving the problem and continue to have a healthy work environment, as you had other matters to attend to.

If you could provide me with this information at your earliest convenience, that would be greatly appreciated.

Kind regards

Angela Chandler”

[83] From the Applicant to Ms Faill on 27 February at 10.16am:

“Good Morning Katirena,

I would like to thank you once again for bringing to my attention the error of my ways with regards to a procedure that as a majority of employees in store has failed to meet.

With regards to the rostering I understand that ALL casuals do not have guaranteed hours as well as casual have a right to refuse any shift given the nature of the casual position without retribution.

As I have discussed with you and the Store Manager, I commit to the planned rosters and if I am unavailable the following week as a courtesy will place N/A as to not waste managements time in calling for other casuals replacement shifts.

As you mentioned yesterday you are unable to give me additional shifts because I place N/A for some days the following week, would suggest that other employees are not reliable in committing to their hours, yet I was advise that I had been inconsistent and unreliable with my availabilities last month to warrant a reduction in hours this month, which is clearly not true and is evident in the rosters you approve prior to be placed on the employee notice board.

I believe that the concerns you brought to my attention with regards to procedure and the fact that I was ill with the flu, should have not impacted the decisions the store manager has on fairly allocating the rostered hours. Many other employees have taken numerous days off (past and present) for personal reasons have have still been given a steady flow of hours upon their return.

Several other employees have come to you with regards to their own personal issues with the rostering of hours and I find this month there has been additional hours allocated to those employees, regardless of their availability, yet I have been treated unfairly with the rostering of hours even though I have a strong availability record, past and present.

I find this situation and any other future concerns, quite unraveling that the matter was not dealt with at store level in a confidential manner, and the forum which yesterday took place has now impacted other employees at the store. If the proper process and procedure took place at store level and was managed internally these concerns should have never been brought to your attention, and that a directive from yourself to reduce my hours would never have been given.

I believe you have been miss informed with information to warrant this directive. I would greatly appreciate if you would reconsider requesting at store level the rosters changed and fairly allocated according to ALL employees availability for next month and moving forward.

I also look forward to meeting with you in the future to discuss any concerns there may be at store level and if any BBNT process and procedures may not be met by all employees and to address and concerns regarding these matters.

I have attached copies of the past few rostered which you would have received for approval.

Kind regards

Angela Chandler”

[84] From Ms Faill to the Applicant on 27 February at 10.17am:

“Hi Angela,

Please know you can contact our HR department at our head office on 03 8888 8100 any point to discuss any issues you may feel need to be raised.

Yesterday was not a disciplinary meeting for a formal meeting. Hence no notes taken not meeting lodged, Yvette & myself where at the Essendon store on a different matter totally.

Mirjana the manager had told me you wanted to speak with me & had roughly broached the subject around rostering.

I have CC’ed the HR manager into this email to make all aware & to be open & transparent to the matter.

Thank you.

Katirena”

[85] From the Applicant to Ms Faill on 27 February at 2.18pm:

“Hi Katirena,

Thank you for your prompt reply. Just to clarify the truth, I was told prior to you arriving yesterday, that you wanted to speak with me regarding the rosters, which is why I was asked to wait for you.

Kind regards

Angela Chandler”

[86] The email trail commences with the Applicant sending an email on 26 February 2019, the day of the meeting with Ms Faill, stating that she was concerned about the conversation and raising concerns. 45 The email was responsive to the request of Ms Faill who asked the Applicant to send concerns in writing.46

[87] In any case, I agree the first sentence of the email from the Applicant to Ms Faill on 27 February 2019 at 10.16am is rather sarcastic and to that extent disrespectful. Beyond that, it is not apparent that the email has a “tone” that is “appalling”, as was submitted by the Respondent’s representative. 47 In any case, Ms Faill herself did not describe the email as “appalling”. She described the email as having a “disrespectful” tone. She described the 26 February 2019 email from the Applicant as having a tone that was “intimidatory”.

[88] In my view, the emails are a forthright expression of the concerns of the Applicant, about her allocation of hours. Other than the sarcasm of the first sentence of the email of 27 February 2019, they are, objectively viewed, neither intimidatory nor disrespectful. At the time of responding to the email of 27 February 2019, Ms Faill did not indicate any concern whatsoever with the email that was sent to her. Having considered the evidence, I am not satisfied that the emails of 26 and 27 February 2019 that the Applicant sent to Ms Faill constituted misconduct. They do not constitute a sound and defensible reason for the dismissal and their sending is not a valid reason for the dismissal.

The covert recording of the conversation on 26 February 2019

[89] While it was not the reason given for the dismissal, the covert recording of the conversation with Ms Faill may be, depending on the circumstances, a valid reason for the dismissal. The Applicant recorded the conversation with Ms. Fail. She also recorded the conversation she had on the phone with Ms. Dowlan on 28 February 2019.

[90] The Applicant’s evidence is that she recorded the conversation with Ms Faill because she was fearful. It was put to her by the representative of the Respondent that she was not fearful going into the discussion. The relevant exchange is as follows:

“Now you’re asserting that you were fearful of this discussion with Ms Faill?  -Yes, of course I would be. It’s just a natural reaction.

Well, why did the discussion of the - - -?  -Well, it’s a natural reaction if you go to work and then the store manager says to you, ‘the regional wants to speak to you.’ Of course you’re going to be scared, fearful.” 48

[91] There was also the following exchange:

“There’s no reason for you to be fearful of a discussion with Ms Faill given your previous interactions?  -Well, who’s to say that I wasn’t fearful when I spoke to her the first instance.

You haven’t said that, have you?  -Well, why would I be in fear of someone unless they’re trying to, like, intimidate - like, I look up to my superiors.

So that’s a - - -?  -I don’t go - I don’t speak to my store manager or any of my superiors in a manner that I’m so confident that I wouldn’t be scared of them. I don’t know Ms Faill. I don’t work with her on a regular occasion. Just because I had the ability to ring her doesn’t mean that I wasn’t scared to ring her.

So, Ms Chandler, I’m trying to understand your answer. You’re saying that you’re not fearful of her or you are fearful of her?  -Well, at the time when she was speaking to me I was intimidated by her. But that’s not - - -“  49

[92] Also:

“I’m going to put to you that you weren’t fearful going into that discussion, were you?  -Absolutely I was.

I’m going to put to you, you created, manufactured this alleged fear in order to justify the decision you took to secretly record your discussion with Ms Faill?  -No, I was in fear because I arrived at the store at approximately 10 to 9, went out the back, had a look at the roster. I arrived to work, I wasn’t well to begin with, I walked outside, said to the store manager, ‘I’m not well, I’d like to go home’, and she asked me what was wrong, and I said that I wasn’t well, and I’m upset about the roster. And she said to me:

Katirena is coming in. She wants to speak with you.

She said, ‘Okay, don’t sign on’. I went and sat in my car, which was parked out the front, and then I saw Ms Faill and someone else, who I didn’t know at the time, was Ms Dowlan, arrive. I waited a few moments, then I went in through the coffee shop to speak with Ms Faill because Mirijana told me that Ms Faill wanted to speak with me, otherwise I would’ve got in my car and driven home because I wasn’t well.

You didn’t advise Ms Faill that you were recording the conversation, did you?  -No.

Wouldn’t that be the appropriate respectful thing to do?  -Well, at the time I was put on the spot.

And if you - wouldn’t advising her that you’re recording the discussion have been a way of eliminating any fear that you say you had about the discussion?  -I don’t understand the question.

Well, if you tell Ms Faill, ‘Hey, I’m happy to have a discussion but I’m recording it’, that gives you a level of comfort, doesn’t it, about how that discussion is going to go?  -Not really. Would the discussion have gone any differently if she knew that I was recording the conversation?” 50

[93] Overall, the responses from the Applicant demonstrate a level of vagueness to her claim that she was fearful of Ms Faill prior to the meeting taking place. It is not a credible claim. She claims she felt intimidated by Ms Faill during the meeting and perhaps to a certain extent she was. However, that does not explain on what basis the Applicant felt such a level of fear before the meeting even began that would allow one to understand why her thoughts turned to recording the meeting.

[94] As I set out earlier, I accept that both Ms Faill and the Applicant thought the other had requested the meeting. As the Applicant thought the Regional Manager wanted to speak to her, and she was not sure what this would be about, this would have given rise to a level of apprehension. However, there is nothing in the history of the previous relationship between the two of them that would provide a basis for the Applicant to be fearful of Ms Faill. The audio recording of the discussion does not indicate that the Applicant was fearful. Further, the email exchange that followed the meeting showed that the Applicant was quite capable of asserting her position in the exchange with Ms Faill.

[95] The claims of the Applicant that she was fearful of Ms Faill before the meeting are not credible and I do not accept that she was fearful.

[96] The Applicant was not sure what the meeting would be about and elected to covertly record it. She could have, and should have, asked Ms Faill if she agreed to the recording but she did not. However, I am also of the view that on all of the evidence this conduct was out of character for the Applicant and it was not her intent to damage the relationship with the employer. Ultimately the only use that the recording has been put to is to defend the Applicant from the accusations as to her conduct at the meeting. Nevertheless, while it was not the intent of the Applicant to damage the relationship with the employer, it is apparent that the covert recording has damaged the relationship.

[97] In a previous decision where it was found that the applicant was not justified in secretly recording discussions with co-workers Deputy President Colman observed that:

“… it would have been open for me to find this conduct to constitute a separate valid reason for dismissal (the Commission is not confined in its consideration of s 387(a) to valid reasons relied on by the employer).” 51

[98] The Deputy President’s decision was appealed unsuccessfully but this point was not challenged on appeal. 52

[99] The Commission’s Full Bench has also found on appeal in another matter that the Member at first instance:

“… was entitled to conclude that the Appellant had made the recording in secret and that this action was contrary to his duty of good faith and fidelity to the employer and undermined the trust and confidence required in the employment relationship. This action, in itself, was grounds for summary dismissal.” 53

[100] As to the recording of the conversation with Ms. Dowlan, this was also inappropriate. However, I have taken into account that this was a conversation where Ms. Dowlan was making incorrect claims to the Applicant as to her rights under the Act. Given the numerous flaws in the process of effecting the dismissal presided over by Ms Dowlan, there may have been some justification in the applicant recording the conversation. However, as was the case with Ms. Faill, the Applicant should have advised Ms. Dowlan that she was recording the conversation. It is apparent that she did not.

[101] Taking into account all of the circumstances, I am satisfied that the covert recording of the conversations with Ms. Faill and Ms. Dowlan is a valid reason for dismissal. It was not the reason relied on for the dismissal and could not have been as the employer was unaware at the time the recording had taken place until the filing of materials in this matter. Whilst the Applicant did not intend to harm the employer by making the recording, she could have achieved the same objective by advising that she was making the recording. I am not satisfied that the Applicant was genuinely fearful of Ms Faill. Covert recording of the conversations was inappropriate and damaging of a relationship of trust and confidence with the employer. This is a factor weighing against a finding that the dismissal was unfair.

Process of dismissal

[102] As far as the procedure of effecting the dismissal is concerned, the Respondent made a limited concession about its flaws as follows:

“[T]he Applicant was not afforded a full opportunity to respond to the reasons for her dismissal, albeit she was invited to attend a meeting with the Respondent ahead of which she was provided with full details of the concerns held by the Respondent and at which she would have been able to provide a response to those concerns. The Applicant elected not to attend that meeting. In ordinary circumstances the Respondent would submit that this amounts to an opportunity to respond, however the Respondent acknowledges that the Applicant would not have been aware that a failure to attend that meeting would mean a decision would be made in her absence.” 54

[103] Subsequent to the discussion between Ms Faill and the Applicant, the then National Human Resources Manager, Ms Yvette Dowlan, wrote to the Applicant on 27 February 2019 setting out the various allegations as to her conduct and invited her to a meeting on 1 March 2019 at 10.00am at the Respondent’s Essendon store. The letter invited the Applicant to bring a support person and also asked that, if she intended to bring a support person, advise as to who that person was. 55 The Applicant responded by email at 5.40pm that evening advising she will attend and that Ms Daniella Papazoglou would be her support person. At approximately 9.00pm that evening, Ms Dowlan responded by email saying that Ms Papazoglou was “deemed to be an active member of the disciplinary investigation and as such cannot be [her] support person for the Disciplinary Investigation Meeting.” The email apologised for the inconvenience and asked the Applicant to advise if she “would like to bring a valid non BBNT Essendon DFO team member”.56

[104] The next morning there was a phone conversation between the Applicant and Ms Dowlan. 57 Ms Dowlan asked the Applicant to change her support person. The Applicant’s evidence is that Ms Dowlan offered to reschedule the meeting at that time.58. The recorded conversation Ms. Dowlan can be heard suggesting that the meeting would probably need to be adjourned. Ms Dowlan followed up that phone conversation with an email, reiterating that Ms Papazoglou was unacceptable as a support person but in an apparent change of heart, confirms that the meeting that was scheduled would not be delayed.59 On 28 February 2019 in the morning, the Applicant responded by email to Ms Dowlan pointing out that her support person was on sick leave during the dates of the allegations and was not a witness to any of the matters, and setting out that the role of the person was to take notes and assist her in the discussions if she needed the support as she was upset.60

[105] At midday on 28 February 2019, Ms Dowlan responded again to the Applicant in the following terms:

“Good morning Angela,

Thank you for your below email,

We stand by the meeting as is and I continue to stand by the issues addressed in my email below sent to you at 10.41am this morning, Thursday the 28^thFebruary 2019.

We provided you 24 hours’ notice, as required by Fair Work, of the Disciplinary meeting and provided you with a comprehensive list of allegations made against you. The meeting time for tomorrow stands as is.

Danni Papazoglou as the current appointed Assistant Store Manager of the Essendon DFO Bed Bath n’ Table Store cannot be your support person. Danni is deemed an active member of the Investigation and therefore cannot be a support person in this circumstance. Please provide us with an alternate Support Person at your earliest convenience.

Katirena and I look forward to meeting with you tomorrow morning.

If you fail to attend the meeting tomorrow, it will be deemed that you are in breach of your employment terms and as such will be suspended on no pay until which time you attend a meeting to respond to the allegations made against you.

Can I also please reiterate once again these allegations, and the notice of disciplinary meeting are of a confidential matter and as such are not to be discussed or disclosed with other team members or members of management from the Bed Bath n’ Table Essendon DFO Store.

Many thanks

Yvette Dowlan” 61

[106] The Applicant responded in the following terms:

“Good Evening Yvette,

Apologies for disturbing your evening. I am unable to attend tomorrow’s meeting as you have requested.

Due to these issues being work related I am not rostered on tomorrow to attend the meeting you have requested.

I am rostered on Monday, but still require time to properly prepare for this meeting and to read through all the information you have provided me, during my personal time.

My next available rostered day is the following week.

Could you please provide me with the Fair Work clause that states only 24hours’ is required for this meeting.

Please also send me a copy of the Statement of Allegations made on the 26th January 2019 by the Store Manager.

I will try and be in touch tomorrow if time permits me during my personal family time.

Kind regards

Angela Chandler”

[107] At 9.00pm on 28 February 2019, Ms Dowlan responded confirming that the Applicant would be paid to attend the discussion. Ms Dowlan then made the extraordinary claim that she would not provide the clause that she claimed exists that states that 24 hours’ notice is what the FW Act requires as notice for a meeting, as she claimed that the FW Act did not make it a requirement to provide that clause. She also claimed the employer was not “obliged or permitted” to provide witness statements or complainant documentation prior to the meeting. Once again, it was affirmed that if the Applicant does not attend the meeting that she “will be placed on unpaid suspension until which time you attend such a meeting to respond to the allegations made against you.” 62

[108] It is not in dispute the Applicant failed to attend the meeting. Despite informing the Applicant twice in writing that the response that would be taken if she did not attend was to suspend her, the Respondent immediately dismissed the Applicant. A voicemail was left for the Applicant sometime between 10.00am and noon and an email setting out the reasons for the termination was sent at 12.16pm on 1 March 2019. 63

[109] During the determinative conference, the Applicant was cross-examined on why she could not bring another support person. Despite the rather tedious pursuit of this issue by the Respondent’s representative with the Applicant, she was adamant that she could not access another support person within the time period allowed. 64

[110] I am satisfied with the evidence of the Applicant on that point.

[111] The process followed by the Respondent to effect the dismissal was riddled with flaws. While the Respondent had a right to reject the Applicant’s preferred support person, their determination to press ahead with the meeting at the time scheduled without taking into account the Applicant’s request for more time was unreasonable. Ms Dowlan misled the Applicant with her claim that 24 hours’ notice of the meeting is all that is required under the FW Act. When asked to provide that information to the Applicant, Ms Dowlan doubled down and made the ridiculous claim that the FW Act does not require her to give that information. Ms Dowlan contemplated rescheduling the meeting in a phone call, and then demanded that the meeting take place.

[112] While the Applicant was on notice that she was to attend the meeting, she was also told that the repercussion of not doing so was suspension until the meeting could take place. However, Ms Dowlan apparently did not feel restrained by making that commitment as she moved to terminate the Applicant within hours of her non-attendance at that meeting. At best, the process followed by Ms Dowlan, the Human Resources Manager, in effecting the dismissal was bungled and incompetent. I have taken into account that Ms Dowlan claims in the letter of dismissal that in deciding to dismiss the employee she had taken into account “…your appointment as a casual sales assistant, with no systematic hours…as clearly defined under the Fair Work Act and confirmed through the Fair Work Ombudsman today…”. It is not apparent how the Fair Work Ombudsman could have given such a confirmation as it would turn on the facts as to the nature of the engagement of the Applicant. In any case, the claim was in error. That error was confirmed by the Full Bench of the Fair Work Commission 65 and does not excuse the numerous failings in the process of effecting the dismissal.

Was the dismissal harsh, unjust or unreasonable?

[113] Section 387 of the FW Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission 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.

[114] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me. 66

[115] I set out my consideration of each below.

Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct?

[116] In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded” 67 and should not be “capricious, fanciful, spiteful or prejudiced.”68 However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.69

[117] Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination.⁷⁰

“The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.” 71

Submissions

[118] The Applicant submitted that there was no valid reason for the dismissal related to the her capacity or conduct because she did not engage in any misconduct as far as the fact of sending text messages or emails, and their respective contents, to her superiors is concerned. 72 The Applicant also submitted that the Respondent “adjusted” its policies to allow for their flexible application.73 Lastly, the Applicant submitted that at no point did she behave aggressively or with an intention to hurt anyone’s feelings, including during the meeting with Ms Faill on 26 February 2019.74

[119] The Respondent submitted that there was a valid reason for the dismissal related to the Applicant’s capacity or conduct because:

“15. It cannot be disputed that the Applicant engaged in a course of conduct on and after 26 February 2019 that was belligerent, disrespectful, intimidating and insubordinate. That conduct, among other things, created a risk to the health and safety of Ms Faill and represented a breach of the Respondent’s policy with respect to Bullying and Harassment. The Respondent had valid reason to dismiss the Applicant from her employment.

16. The Applicant’s consistent disrespectful conduct was itself destructive of the necessary relationship of trust and confidence and also, of itself constituted a valid reason for the termination of the Applicant’s employment.

17. The Respondent’s decision to terminate the employment of the Applicant was sound, defensible and well founded.” 75 (footnotes omitted)

…

“5. The Commission should also conclude that the Applicant engaged in a further example of misconduct in sending the email to Ms Faill on 27 February 2019. This email was, despite the Applicant’s protestations to the contrary, was belligerent, disrespectful, intimidating and insubordinate.

6. The Commission should also conclude that the actions of the Applicant in secretly recording the meeting with Ms Faill on 26 February 2019 and the telephone discussion with Ms Dowlan on 28 February 2019 were contrary to her duty of good faith and fidelity to the Respondent and/or undermined the trust and confidence required in the employment relationship.” 76 (footnotes omitted)

[120] As set out above, I am not satisfied that the first, second and third reasons given for the dismissal are valid reasons for dismissal for the reasons set out. However, I have found that the further reason, that of the covert recordings undertaken by the Applicant is a valid reason for dismissal. That valid reason weighs against a finding that the dismissal is unfair.

Was the Applicant notified of the valid reason?

[121] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment, 77 and in explicit78 and plain and clear terms.79 Notification of “the reason” relates to the “valid reason” for the dismissal.80 In this case, the only valid reason is the covert recording of the conversation.

[122] It is apparent that the Respondent was unaware of the recordings having been undertaken until the commencement of these proceedings. In the circumstances there was not an opportunity to notify the Applicant. However, that does not change the fact that the Applicant was not notified of the reason.

[123] In all the circumstances, I find that the Applicant was not notified of the reason for her dismissal. This weighs in favour of a finding of unfairness.

Was the Applicant given an opportunity to respond to any valid reason related to their capacity or conduct?

[124] An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment. 81

[125] The opportunity to respond does not require formality and this factor is to be applied in a common sense way to ensure the employee is treated fairly. 82 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.83

[126] For the Commission to have regard to whether an employee has been given an opportunity to respond to the reason for dismissal, there needs to be a finding that there is a valid reason for dismissal. 84

[127] As the recording of the conversations was not known until after the dismissal, it is apparent that the Applicant was not given an opportunity to respond to the valid reason.

[128] The reason for the termination need not be that which was given by the employer. It can be any reason underpinned by the evidence provided to the Commission. 85 If the employer seeks to rely on a reason for dismissal other than the reason given or relied upon at the time of the dismissal “they will have to contend with the consequences of not giving the employee an opportunity to respond to such reason”.86

[129] This is such a case and the employer has to deal with the consequences that there was not an opportunity given to respond. The failure to give an opportunity to respond weighs in favour of a finding the dismissal is unfair.

Did the Respondent unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal?

[130] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present.

[131] There is no positive obligation on an employer to offer an employee the opportunity to have a support person:

“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.”87

Submissions

[132] The Applicant submitted that the Respondent unreasonably refused to allow the Applicant to have a support person present to assist at discussions relating to the dismissal on the basis that they would not accept the support person that she had chosen.

[133] The Respondent submitted that it did not unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal on the basis that it is their policy to not allow employees of the company to act as support people. That is true, however that is not what the Applicant was told at the time, she was told that person was not able to attend as she was an active member of the disciplinary investigation. It is apparent that the Applicant took “the investigation” as to be the same one as hers. 88 However, while it is not clear, it would seem it was a separate investigation.89 In any case, the Applicant was understandably confused by this reason for the denial of her support person.

[134] In any case, the reasonable response would have been to delay the meeting, as Ms Dowlan contemplated doing so. This would have allowed the Applicant time to get another support person. This was not done and, in spite of commitments made to the Applicant that she would not be dismissed if she did not attend the meeting, that is exactly what occurred.

Findings

[135] I find that the Respondent, in insisting that the Applicant find another support person within such a short period of time and not delaying the time of the meeting to allow that to occur, had the effect of depriving the Applicant of the ability to have a support person.

[136] Having regard to the matters referred to above, I find that the Respondent unreasonably refused to allow the Applicant to have a support person present at discussions relating to the dismissal.

Was the Applicant warned about unsatisfactory performance before the dismissal?

[137] As the dismissal did not relate to unsatisfactory performance, this factor is not relevant to the present circumstances.

To what degree would the size of the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal?

[138] Neither party submitted that the size of the Respondent’s enterprise was likely to impact on the procedures followed in effecting the dismissal and I find that the size of the Respondent’s enterprise had no such impact. This is a neutral consideration.

To what degree would the absence of dedicated human resource management specialists or expertise in the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal?

Submissions

[139] The Applicant submitted that the Respondent’s enterprise did not lack dedicated human resource management specialists or expertise.

[140] The Respondent submitted that the lack of dedicated human resource management expertise in the Respondent’s enterprise would be likely to impact on the procedures followed in effecting the dismissal because:

“[i]t is clear from the process undertaken in relation to the dismissal that while the Respondent at the time employed a human resources manager, that human resources manager did not have expertise in relation to the procedural requirements for effecting a dismissal.” 90

[141] This is a concession rightly made that the former human resources manager did not manage the process of the termination at all well and did not fulfil the relevant procedural requirements..

Findings

[142] Having regard to the foregoing, I find that the Respondent’s enterprise did not lack dedicated human resource management specialists and expertise. However, that particular human resources manager was incompetent in respect to her ability to deal with the termination of an employee. Ultimately this is a neutral consideration.

What other matters are relevant?

[143] Section 387(h) of the FW Act requires the Commission to take into account any other matters that the Commission considers relevant.

Submissions

[144] The Applicant submitted that the following other matters are relevant to the Commission’s consideration of whether the dismissal was harsh, unjust or unreasonable:

•  she will face financial difficulties; she has signed for a “House and Land package” that is now at risk because she is no longer employed;

•  she had planned for this to be her “retirement job” as she had a reasonable expectation of continuing employment on a regular and systematic basis; and

•  since her termination, she has applied for numerous positions without success; the current volatile circumstances due to COVID-19 have made it even more difficult to find work that is suitable to her skill set. 91

[145] The Respondent submitted that the following other matters are relevant to the Commission’s consideration of whether the dismissal was harsh, unjust or unreasonable:

“(a) the Applicant demonstrated a high level of antipathy towards the Respondent at the time of the termination; and

(b) it is open to the Commission to find that this antipathy would have continued during any further disciplinary process and had the Applicant, instead of being terminated, received a warning in relation to her conduct.” 92

[146] I am not satisfied, consistent with my findings above, that the Applicant demonstrated a high level of antipathy to the Respondent, it follows that I do not think that any antipathy would have continued. I accept that the matters set out by the Applicant going to her financial difficulties and her difficulty in obtaining employment are factors that are relevant to the consideration as to whether the dismissal is unfair and weigh towards a finding of unfairness.

Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust or unreasonable?

[147] I have made findings in relation to each matter specified in s.387 of the FW Act as relevant.

[148] I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable. 93

[149] In this matter, I am satisfied that there was a valid reason for the termination of the Applicant’s employment, that being the recording of the conversation with Ms Faill and Ms Dowlan. This weighs against a finding of unfairness. However, the Applicant was not notified of the valid reason nor given an opportunity to respond and was effectively denied an opportunity to have a support person as a result of the botched process of effecting the dismissal. The effect of the dismissal on the Applicant has been significant. All of these factors weigh towards a finding of unfairness.

[150] Having considered each of the matters specified in s.387 of the FW Act, I am satisfied that the dismissal of the Applicant was unreasonable because she was not notified of the reason and did not have an opportunity to respond to the reason for dismissal and was effectively denied the opportunity for a support person. It was harsh because of the significant impact the dismissal has had on her in circumstances where she had entered into a significant financial commitment to buy property and has had considerable difficulty finding alternative employment.

Conclusion on merits

[151] I am therefore satisfied that the Applicant was unfairly dismissed within the meaning of s.385 of the FW Act.

Remedy

[152] Being satisfied that the Applicant:

•  made an application for an order granting a remedy under section 394;

•  was a person protected from unfair dismissal; and

•  was unfairly dismissed within the meaning of section 385 of the FW Act,

I may, subject to the FW Act, order the Applicant’s reinstatement, or the payment of compensation to the Applicant.

[153] Under s.390(3) of the FW Act, I must not order the payment of compensation to the Applicant unless:

(a) I am satisfied that reinstatement of the Applicant is inappropriate; and

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

Is reinstatement of the Applicant inappropriate?

Submissions

[154] The Applicant submitted that reinstatement is appropriate because:

•  the Applicant loved her job, colleagues and customers, and would like to continue working in that role; 94

•  termination of employment was not warranted for the reasons given by the Respondent

•  the Applicant may not find another job suitable to her skillset given her age and the COVID-19 pandemic;

•  it took the Applicant 18 months to find this job; and

•  the Applicant is currently in significant financial distress and finding another job might take a very long time, if she does find one. 95

[155] With reference to a Full Bench decision of the Fair Work Commission, 96 the Respondent submitted that reinstatement is inappropriate because:

“(a) reinstatement would be futile given the Respondent has very limited work being performed at the Essendon store such that the Applicant would not be able to be offered any work and the Applicant considers herself to only be employed at the Essendon store;

(b) reinstatement would be futile given the Respondent, subsequent to the termination, has discovered the conduct of the Applicant in secretly recording her discussions with Ms Faill and Ms Dowlan, and there is a likelihood that this conduct will result in disciplinary action and result in termination of her employment (see ; and

(c) the relationship between the Applicant and the Respondent has irretrievably broken down […] and as such there has been a fundamental loss of trust and confidence in the employment relationship.” 97 (footnotes omitted)

[156] In Anderson v Thiess Pty Ltd, 98 the Full Bench set out the following regarding remedies for reinstatement:

“We accept the respondent’s submission that a decision as to whether it is appropriate to order the remedy of reinstatement is discretionary in nature. As was explained in the Full Bench decision in Nguyen v Vietnamese Community in Australia, a broad range of factors may be relevant in a consideration of the appropriateness of reinstatement:

“[9] The question whether to order a remedy in a case where a dismissal has been found to be unfair remains a discretionary one. …

[10] Subsection 390(3) underscores the primacy of reinstatement as a remedy for an unfair dismissal as the discretion to order a remedy of compensation may only be exercised if the Commission is satisfied that reinstatement is ‘inappropriate’. Further, one of the objects of Part 3-2 of Chapter 3, in which the unfair dismissal provisions appear, is “to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement”. We would observe that to describe reinstatement as the ‘primary remedy’, is to simply recognise that reinstatement is the first, perhaps even the foremost, remedy under the Act. The relevant question in determining whether to grant the remedy of reinstatement of an employee in relation to a dismissal that is found to have been ‘unfair’ is whether reinstatement is appropriate in the particular case.

…

[15] In Australia Meat Holdings Pty Ltd v McLauchlan a Full Bench of the AIRC gave consideration to the differences in the provisions of the IR Act and the WR Act and concluded that “a consideration of appropriateness of reinstatement involves the assessment of a broader range of factors than practicability … [I]n considering whether to order the reinstatement the Commission is not confined to an assessment of the practicability of such an order are that must decide whether such an order is appropriate”. We agree with this observation.

[16] We now turn to the relevant question concerning the appropriateness of reinstatement.

[17] Reinstatement might be inappropriate in a whole range of circumstances, for example if such an order would be futile such as where reinstatement of an employee would almost certainly lead to a further termination of the employee’s employment because the employer has since discovered that the employee engaged in an act of serious misconduct which was only discovered after the employee’s termination or if the employer no longer conducts a business into which the employee may be reappointed.”

The discretionary nature of the decision-making exercise in relation to reinstatement, which apart from the criterion of appropriateness is not guided by any requirement to take any particular matter into account, necessarily means that no one consideration and no combination of considerations is necessarily determinative of the result and that the decision-maker is allowed some latitude as to the choice of the decision to be made. It also means that in any appeal from a decision concerning the grant or refusal of the remedy of reinstatement, it is necessary for the appellant to demonstrate error in the decision-making process. Any such error will usually have to be of the type identified in House v The King.” (footnotes omitted)

[157] I agree that these are the appropriate principles and apply them to the consideration in this case. I accept the evidence of the Respondent that there is very limited work at the Essendon store such that the Applicant would be able to be offered little or perhaps no work at all. 99 Moreover, I accept that given the discovered conduct of the Applicant recording the conversations, there is likelihood that on return to work there would be disciplinary action which would likely result in her termination.

[158] I also accept that in the circumstances, trust and confidence have been lost as a result of the secret recording of the conversation.

[159] Having regard to the matters referred to above, I consider that reinstatement is inappropriate. I will now consider whether a payment for compensation is appropriate in all the circumstances.

Is an order for payment of compensation appropriate in all the circumstances of the case?

[160] Having found that reinstatement is inappropriate, it does not automatically follow that a payment for compensation is appropriate. As noted by the Full Bench of the Fair Work Commission, “[t]he question whether to order a remedy in a case where a dismissal has been found to be unfair remains a discretionary one…” 100

[161] In this matter, there remain some gaps in the information such that I am unable to determine the matter of compensation at this time. As the Respondent points out, it is not clear from the document filed by the Applicant which entries are job applications and whether there are multiple entries related to the same application. 101 It is also not clear what income the Applicant received after the dismissal.

[162] Directions will be issued in order that I can elicit the necessary information to enable me to consider and finalise the matter of compensation. Those directions will issue no later than Monday 17 August 2020.

COMMISSIONER

Appearances:

Ms A Chandler on behalf of herself
Mr N Tindley on behalf of the Respondent

Hearing details:

2020
Melbourne (by telephone)
23 April

Printed by authority of the Commonwealth Government Printer

<PR720998>

 1   Court book, page 5.

 2   Court book, page 11.

 3   Chandler v Bed Bath n’ Table [2019] FWC 6448.

 4   Chandler v Bed Bath N’ Table [2020] FWCFB 306.

 5   Chandler v Bed Bath n’ Table [2019] FWC 6448.

 6   PN74.

 7   Warrell v Fair Work Australia [2013] FCA 291.

 8   Ibid.

 9   Respondent’s submissions dated 22 April 2020.

 10   Court book pages 290 – 291.

 11   Respondent’s submissions dated 22 April 2020, at [13].

 12   Chandler v Bed Bath N’ Table [2020] FWCFB 306.

 13   Court book, page 97 – 98.

 14   Court book, page 257.

 15   Court book, page 22.

 16   PN565 – PN571.

 17   Court book, pages 258 – 259.

 18   Court book, pages 264 – 266.

 19   Court book, page 257; Respondent’s submissions dated 21 May 2020, at [15].

 20   Court book, page 99.

 21   Court book, page 258.

 22   Court book, page 258.

 23   Court book, page 258.

 24   Court book, page 258.

 25   Court book, page 99.

 26   Court book, pages 130 – 131.

 27   PN934 – PN939.

 28   Court book, page 98.

 29   Court book, page 207.

 30   Court book, pages 258 – 259, 278.

 31   PN918 – PN939.

 32   Court book, page 84.

 33   Court book, page 279.

 34   PN811 – PN815.

 35   Court book, pages 190 – 192.

 36   Court book, page 279.

 37   Court book, pages 84 – 86.

 38   PN301 – PN302.

 39   PN318.

 40   PN324.

 41   PN828.

 42   Court book, page 192.

 43   Cambridge English Dictionary (https://dictionary.cambridge.org/dictionary/english/insubordinate, accessed 12 August 2020).

 44   Court book, pages 190 – 192.

 45   Court book, page 190.

 46   Court book, page 89; PN359 – PN361.

 47   Court book, page 259.

 48   PN301 – PN302.

 49   PN311 – PN314.

 50   PN343 – PN350.

 51   Tawanda Gadzikwa v Australian Government Department of Human Services [2018] FWC 4878, at [86].

 52   Tawanda Gadzikwa v Commonwealth of Australia (Department of Human Services) [2018] FWCFB 7354.

 53   Wayne Schwenke v Silcar Pty Ltd T/A Silcar Energy Solutions [2013] FWCFB 9842, at [33].

 54   Court book, page 257.

 55   Court book, pages 194 – 195.

 56   Court book, page 197.

 57   Court book, pages 86 – 87.

 58   Court book, page 86.

 59   Court book, page 198.

 60   Court book, page 199.

 61   Court book, page 200.

 62   Court book, page 202.

 63   Court book, page 203.

 64   PN396 to PN474.

 65   Chandler v Bed Bath N’ Table [2020] FWCFB 306, [20]-[21].

 66   Sayer v Melsteel Pty Ltd [2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].

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

 68   Ibid.

 69   Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.

70 Edwards v Justice Giudice [1999] FCA 1836, [7].

 71   King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24].

 72   Court book, pages 71 – 72.

 73   Court book, page 90.

 74   Ibid.

 75   Court book, page 260.

 76   Respondent’s submissions dated 21 May 2020.

 77   Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.

 78   Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).

 79   Ibid.

 80   Chubb Security Australia Pty Ltd v Thomas Print S2679 (AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 2000) at [41].

 81   Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), [75].

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

 83   Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.

 84   Chubb Security Australia Pty Ltd v Thomas Print S2679 (AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 2000) at [41].

 85   MM Cables (A Division of Metal Manufacturers Limited) v Zammit Print S8106 (AIRCFB, Ross VP, Drake SDP, Lawson C, 17 July 2000) at [42]. See also Fenton v Swan Hill Aboriginal Co-operative Ltd [1998] FCA 1613.

 86   FW Act ss.387(b) and 387(c). See also APS Group (Placements) Pty Ltd v O’Loughlin [2011] FWAFB 5230 at [51].

87 Explanatory Memorandum, Fair Work Bill 2008 (Cth), [1542].

 88   PN432 – PN464.

 89   PN659 – PN661.

 90   Court book, page 262.

 91   Court book, pages 90 – 91.

 92   Court book, page 262.

 93   ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]–[7].

 94   Court book, page 80.

 95   Court book, page 93.

 96   Thinh Nguyen & Thanh Le v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter [2014] FWCFB 7198, [14]-[28].

 97   Respondent’s submissions dated 21 May 2020, at [17].

 98   [2015] FWCFB 478, at [21]-[22].

 99   PN775 – PN778.

 100   Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter [2014] FWCFB 7198, [9].

 101   Respondent’s submissions dated 21 May 2020, at [20].