| [2020] FWC 5308 [Note: This decision has been quashed - refer to Full Bench decision dated 16 December 2020 [2020] FWCFB 6541] |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Rebecca Fitzgerald
v
TLB Assistance Pty Ltd
(U2020/5672)
DEPUTY PRESIDENT LAKE |
BRISBANE, 4 OCTOBER 2020 |
Application for an unfair dismissal remedy - small business dismissal code - health care worker - COVID-19 - at risk employer - dismissal compliant with Code - application dismissed.
[1] By application filed 25 April 2020, Ms Rebecca Fitzgerald (Ms Fitzgerald) asserts that her dismissal from TLB Assistance Pty Ltd (TLB) was unfair and seeks an order from the Fair Work Commission (the Commission) granting a remedy in relation to that unfair dismissal.
[2] Prior to her dismissal, Ms Fitzgerald was employed on a casual basis as a Lifestyle Support Worker. It is not in dispute that Ms Fitzgerald’s employment with TLB commenced in November 2012 and ceased on 6 April 2020. TLB was established by Ms Tanya Barton to manage National Disability Insurance Scheme (NDIS) support provided to her. Ms Barton receives NDIS support as a result of Cerebral Palsy. TLB does not provide assistance to any other clients and is for the sole benefit of Ms Barton.
[3] Ms Fitzgerald was dismissed by letter, attached to an email, dated 6 April 2020. That letter states, in part:
“Confirmation of Termination
This letter advises that your position as Support Worker has been terminated immediately without notice, effective Monday 6th April 2020.
Your employment has been terminated on the grounds of serious misconduct.
In order to reach this determination, [TLB] reviewed:
• You placed the health and safety of myself and all of my other support workers at risk by not following QLD Health and Australian guidelines regarding COVID-19 transmission. Some of these directives are outlined at [weblink] where it specifically states that anyone undertaking travel should self-isolate for 14 days after moving between areas;
• You advised me that you went up north (travelled) over the weekend to help your family, then returned to shift at my residence without any self-isolation period;
• You did not advise me that you had travelled up north until after you’d been in my home.
Notice
This letter serves as formal notification of your termination on the grounds of serious misconduct. There is no notice period owed due to the grounds of termination.”
[4] Section 396 of the Act requires that four specified matters must be decided before the merits of the application may be considered. There was no contest between the parties about three of those matters. I find that:
(a) the application was made within the period required by s.394(2);
(b) the Applicant was a person protected from unfair dismissal; and
(c) the dismissal was not a case of genuine redundancy.
[5] In relation to the fourth matter, being whether the dismissal was consistent with the Small Business Fair Dismissal Code (the Code), TLB objects to Ms Fitzgerald’s application, asserting that it is a small business and that the dismissal was consistent with the Code. It is not in dispute that TLB is a small business. 1
[6] Consistent with the usual practice, the Commission listed the matter for conciliation before a Staff Conciliator that occurred on 19 May 2020. A settlement agreement was reached between the parties at conciliation, subject to the cooling-off period. On 22 May 2020, and within the cooling-off period, Ms Fitzgerald withdrew from agreement stating:
“I have had 3 days to consider the settlement offer and after speaking with Working Woman QLD, I would like to decline the settlement offer given at conciliation on the the 19th May 2020.
I would like to take this matter further and have it conducted as a determinative conference please.”
[7] The matter was subsequently referred to me for determination. Directions were issued to the parties to file submissions and evidence in relation to Ms Fitzgerald’s application and TLB’s jurisdictional objection. A hearing occurred to deal with both matters on 3 August 2020. At hearing, Ms Fitzgerald was represented by Ms Isabella Morosan of Basic Rights Queensland Incorporated (Working Women Queensland Program), and TLB was represented by Ms Tara Kent of Instinct CBT Pty Ltd.
[8] It is convenient to, and required that I, commence by considering and deciding the jurisdictional matter. In the event that I decide that the dismissal was not consistent with the Code, I will return to considering the merits of Ms Fitzgerald’s application.
[9] Ms Fitzgerald has applied under s.394 of the Act. As discussed above, it is not in dispute that Ms Fitzgerald’s application has been made within the time specified by s.394(2)(a) of the Act.
[10] Consistent with s.396 of the Act, before considering the merits of Ms Fitzgerald’s application I must decide whether the dismissal was consistent with the Code. Section 388 of the Act provides that a person’s dismissal was consistent with the 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. “
[11] The Code provides:
“Summary Dismissal
It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal.
Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair, it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.
Other Dismissal
In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job.
The employee must be warned either verbally, or preferably in writing, that he or she risks being dismissed if there is no improvement.
The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem having regard to the employee’s response.
Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.
Procedural Matters
In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.
A small business employer may be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia.
Evidence may include a completed check list, copies of written warning(s), a statement of termination or signed witness statements.”
[12] The summary dismissal aspect of the Code was considered by a Full Bench of what was then Fair Work Australia as follows:
“[29] ... There are two steps in the process of determining whether this aspect of the Small Business Fair Dismissal Code is satisfied. First, there needs to be a consideration whether, at the time of dismissal, the employer held a belief that the employee’s conduct was sufficiently serious to justify immediate dismissal. Secondly it is necessary to consider whether that belief was based on reasonable grounds. The second element incorporates the concept that the employer has carried out a reasonable investigation into the matter. It is not necessary to determine whether the employer was correct in the belief that it held.
[30] Acting reasonably does not require a single course of action. Different employers may approach the matter differently and form different conclusions, perhaps giving more benefit of any doubt, but still be acting reasonably. The legislation requires a consideration of whether the particular employer, in determining its course of action in relation to the employee at the time of dismissal, carried out a reasonable investigation, and reached a reasonable conclusion in all the circumstances. Those circumstances include the experience and resources of the small business employer concerned.” 2
[13] It is not necessary for a finding to be made that the alleged conduct occurred. 3 However, the Commission does need to make a finding as to whether the employer had a reasonable belief that the conduct of the employee was serious enough to warrant immediate dismissal. It is not necessary to make a finding as to whether that belief is in fact correct.
[14] In order to make a finding that an employer believed on reasonable grounds that the conduct of the employee was serious enough to justify immediate dismissal, the employer must establish, as a question of fact, that they held the belief that:
1. The conduct was by the employee;
2. The conduct was serious; and
3. The conduct justified immediate dismissal.
[15] It is not enough to merely establish that the employer did in fact hold this belief. The employer must also establish that they had reasonable grounds to hold the belief. This may be done, although not exclusively, by providing evidence of inquiries or investigations undertaken by the employer to establish their belief. 4
[16] Ms Fitzgerald asserts that on 9 March 2020 she had a discussion with Ms Barton concerning her plans to travel over the coming weekends and would continue to do so until 20 April 2020. At that time, Ms Fitzgerald was intending on travelling to Hervey Bay on weekends and days off to assist her mother move to Brisbane. Ms Barton did not raise any concerns with Ms Fitzgerald about potential risks from this travel.
[17] The crux of Ms Fitzgerald’s complaint in relation to the Code, is that TLB did not have reasonable grounds to hold the belief that Ms Fitzgerald commit a serious breach of occupational health and safety procedures. TLB did not conduct appropriate inquiries or investigations to establish their belief. In submissions, Ms Fitzgerald submits:
“[TLB] had access to support and advice from human resource management specialists and/or expertise in effecting Ms Fitzgerald’s dismissal. If [TLB] did have reasonable grounds to hold the belief that Ms Fitzgerald committed a serious breach of occupational health and safety procedures, it would be reasonable to assume that [TLB] conducted thorough inquiries and investigations and received in-depth and thorough advice and support from human resource management specialists and/or expertise prior to effecting Ms Fitzgerald’s dismissal.”
[18] A period of five and a half hours passed between when Ms Fitzgerald first brought to Ms Barton’s attention that she had recently travelled intrastate and Ms Fitzgerald’s dismissal. It is not possible to have made appropriate inquiries within this very short period of time.
[19] Ms Fitzgerald accepts that small businesses are different organisationally and operationally when compared with larger enterprises. However, a business’ size does not mean that a dismissal can be devoid of fairness and the Code will not protect an employer that has engaged in conduct that is improper, belligerent and bullying. 5 Ms Fitzgerald submits:
“As observed by the Commission, [TLB] is unable to use its size as a shield against other factors that indicate that the dismissal was harsh, unjust and unreasonable.”
[20] Additionally, TLB does have access to advice and support from human resource management and occupational health and safety specialists. 6
[21] In submissions and evidence filed prior to hearing, TLB does not contest many of the facts of this matter and does not dispute Ms Fitzgerald’s version of events as given in her initial evidence in response to the jurisdictional objection. 7 However, as transpired at hearing and is apparent from the witness statements, TLB does contest some important issues.
[22] Ms Barton accepts that Ms Fitzgerald did say that she would occasionally travel to Hervey Bay. 8
[23] As concerns the evolving COVID-19 situation, Ms Barton has given the following evidence:
“Across the last 2 weeks of March, after being informed by Tara Kent that COVID was becoming a much bigger issue than originally thought, I started watching the television and listening to the increasing panic about the emergency. I was even more fearful for my own wellbeing as my brother has a pregnant wife and I didn’t want to impose upon his impending family if I needed to isolate. I have been talking to Tara in our zoom conversations about how to put a shower outside and we had been both trying to source any respite options in case any member of my staff team bought a possible infection into the team. I had started to read up about what other places and people with disability were doing to protect themselves and I had started thinking about how quickly COVID could spread through my team if anyone acquired an infection.
On 31 March 2020 I was becoming increasingly worried about when Ms Fitzgerald would be requiring time off. I had been speaking to Tara already about what I needed to do if she chose to travel and I needed confirmation of dates so I could organise to set up a system to pay her for 14 days of isolation. I had the conversation described by Ms Fitzgerald in point 7 of her Evidence Statement as I was again trying to get any confirmation of when she would be travelling up north. I had already talked to Ms Kent about setting up a paid isolation for Ms Fitzgerald for upon her return, but wanted to make sure it wasn’t happening sooner than I had expected. At this point, I was expecting this to happen on the weekend of the 10-12 April. I had started to plan that I could pay Ms Fitzgerald her normal weekly amount to isolate for 14 days from 13 April until 27 April 2020. This would enable the 14 day period to expose if any infections existed after her travel up north. In this conversation Ms Fitzgerald said there was further extensions and still had no final dates to tell me.”
[24] Ms Barton’s evidence is that in her view COVID-19 was leading to changes “practically every hour” 9; it was difficult to keep up with the changing information.10
[25] After Ms Fitzgerald disclosed to Ms Barton that she had indeed travelled to Hervey Bay in the days prior, Ms Barton states:
“I immediately felt sick with dread and fear. I was so worried about if she had contracted anything while up north and within a short amount of time of this shift, I felt extremely angry at her for placing me and my entire team in significant risk. I kept thinking about how reckless and dangerous her actions were and kept wondering why she didn’t give me any warning about impending travel. I had asked so many time when it was going to happen. I felt mad at myself that I thought I was safe to wait any longer to organise the 14 day paid self-isolation and made at myself for trusting her to give me any notice at all that she would be travelling. I don’t remember much of that shift, except knowing that I needed to contact Ms Kent to get some help in how to cease her from ever working with me again. I was very scared for my safety and welfare from this point forward. I knew that there was no point in stopping the shift early as the damage was likely to already be done and if she was potential (sic) infections, then the amount of time she spent with me didn’t matter, I would have to take the same steps regardless of if she was there for 1 minutes (sic), or 4 hours. I contacted Ms Kent early into this shift to make sure she was free to chat as soon as Ms Fitzgerald left.”
[26] Ms Barton’s evidence in chief included the following exchange:
“With everything, okay. My next comment there is when Ms Fitzgerald turned up for her shift, comments were made that you then let her finish the shift and then afterwards contacted myself. When Ms Fitzgerald told you that she had already travelled on 6 April, in the morning or whenever it may have been, what were your thoughts? What were you thinking after you heard that?---I was very shocked.
You were very shocked?---I couldn't understand why - - -
You couldn't understand why - - -?--- - - - she would travel when - - -
She would travel when - - -?--- - - - there was so much talk about - - -
Sorry, I missed that, Tanya?---There was so much talk - - -
When there was so much to talk about? Right?---About COVID and talking about maybe closing everything down.
There was so much talking about closing everything down?---Yes.”
[27] Ms Barton explains the discussions she had with Ms Kent concerning the dismissal of Ms Fitzgerald as follows:
“I asked Ms Kent’s help with what needs to be on a Termination Letter. She talked to me about the options for dismissal. I didn’t want to give her any notice period or payments in addition to the absolute legal necessity as she had put my safety and the safety of all my staff team in significant risk. I kept thinking about how I was going to live without workers and how I was going to shower outside in the freezing cold. I was very made and still unsure about what to do about other workers and who I needed to notify.
I made it clear to Ms Kent that this was absolutely serious misconduct when she explained this option. I asked her to make the letter template based on a termination due to serious misconduct. She gave me a template with some text in it and I had to add the workers name, address and date of termination.”
[28] It is not in dispute that TLB is a small business employer. The matter for my determination is whether TLB complied with the Code in relation to the dismissal. I will commence by considering whether TLB has established that Ms Barton held a belief that the Ms Fitzgerald’s conduct was sufficiently serious to justify immediate dismissal.
[29] Leaving aside the Applicant’s dispute about the reasonableness of such a belief, I do not understand that the Applicant seriously disputes that Ms Barton did in fact hold the belief that Ms Fitzgerald had engaged in conduct that was serious enough to justify immediate dismissal.
[30] Regardless, I accept Ms Barton’s evidence, amongst other things, that:
• upon being advised that Ms Fitzgerald had travelled to Hervey Bay she immediately felt sick with dread and fear;
• she considered that Ms Fitzgerald had place her and the entire team at significant risk;
• Ms Fitzgerald was reckless and dangerous in her actions;
• If a case of COVID-19 occurred it would be impossible for Ms Barton to get care;
• Ms Barton was very concerned that she may have contracted something from Ms Fitzgerald;
• After discussing serious misconduct with Ms Kent, she considered Ms Fitzgerald’s actions amounted to serious misconduct; and
• She did not wish to give notice of dismissal to Ms Fitzgerald.
[31] Consequently, I accept and find that Ms Barton, the controlling mind of TLB, did in fact hold the belief that Ms Fitzgerald had engaged in conduct that was serious enough to justify immediate dismissal.
[32] Next, I need to consider whether that belief was based on reasonable grounds. I conclude that it was.
[33] As a starting point, it is fair to say that there are any number of other steps that TLB could have taken in deciding what to do in relation to Ms Fitzgerald’s conduct. However, there is no one single course of action that a small business is obliged to take in complying with the Code. As the Full Bench has made clear: 11
“The legislation requires a consideration of whether the particular employer, in determining its course of action in relation to the employee at the time of dismissal, carried out a reasonable investigation, and reached a reasonable conclusion in all the circumstances. Those circumstances include the experience and resources of the small business employer concerned.”
[34] The particular employer in question here is a very small business; in truth it is not really a business at all. TLB operates with its sole undertaking being the provision of care to Ms Barton, and Ms Barton only. In my view, this is significant. While obviously an intelligent person, Ms Barton is nonetheless significantly disabled and vulnerable as a result of cerebral palsy. Ms Fitzgerald’s own evidence is that Ms Barton is “very high risk”. 12
[35] The evidence establishes that Ms Fitzgerald was well aware of the significant risk that COVID posed. Ms Fitzgerald and Mr Nuttal’s evidence is that COVID was “changing all the time”. 13 Ms Fitzgerald was so concerned for her mother, who is also vulnerable, that she took steps to ensure she “triple checked”14 everything. Mr Nuttall considered the very real risk posed in stating that efforts were taken to check things because “…nobody can afford to bring anything like that home”.15
[36] The specific context in which TLB’s belief was formed leads me to the view that what steps Ms Barton did take, which were limited, were nonetheless reasonable.
[37] More generally in relation to Australians living with a disability, many were faced with the very real prospect that their means of support and care could disappear at a moment’s notice. The distress experienced by Ms Barton after finding out about Ms Fitzgerald’s travel to Hervey Bay is a fear that was experienced by any number of Australians living with a disability. In that context it is not surprising that Ms Barton formed the view that she did and took immediate steps to protect herself and those that worked for her. From Ms Barton’s perspective, Ms Fitzgerald’s actions were “quite selfish” 16 and had taken away her choice to assess and manage the risk that she was faced with as a result of COVID.
[38] To some extent the same consideration applied to the Australian community as a whole. The prevailing circumstances as at 6 April 2020 were such that the world was at the height of the COVID pandemic. It was a time of uncertainty for all of us.
[39] On 29 January 2020, the Queensland Minister for Health and Minister for Ambulance Services made an order declaring a public health emergency for all of Queensland. On 29 March 2020, approximately a week prior to Ms Fitzgerald’s trip to Hervey Bay, the Prime Minister announced that:
“National Cabinet’s strong guidance to all Australians is to stay home unless for:
• shopping for what you need - food and necessary supplies;
• medical or health care needs, including compassionate requirements;
• exercise in compliance with the public gathering requirements;
• work and study if you can’t work or learn remotely.” 17
[40] In that same statement, the Prime Minister stated that “[C]oronavirus has more serious impacts on older Australians…and Australians with existing health conditions and comorbidities”.
[41] I think it is correct to say that at the time of dismissal, Ms Fitzgerald had not done anything that was in fact inconsistent with any health directive. However, for TLB to succeed it does not have to convince the Commission that it was. The relevant question is whether TLB had reasonable grounds for considering that Ms Fitzgerald’s conduct warranted immediate dismissal.
[42] In the context of TLB, set out above, and the circumstances as they existed at the time, I consider that TLB did have a reasonable basis for its belief. In the context of Ms Barton’s level of risk, which was ‘very high’, and the potential impact that a COVID-19 scare could have on our means of assistance, it was not unreasonable for Ms Barton to form the view that she did.
[43] In my view, it is not critical that a small business employer adduce evidence of a process of investigation or inquiry undertaken prior to summarily dismissing an employee to establish that they have complied with the Code. An absence of such evidence may mean it is difficult to conclude that any belief of the small business employer was held on reasonable grounds, but it does not, as a rule, preclude such a finding.
[44] There is evidence of some inquiries being made by Ms Barton concerning Ms Fitzgerald’s conduct. In addition to speaking with Ms Kent, Ms Barton spent some hours undertaking research on the internet including government websites. 18 However, it was not necessary for Ms Barton to investigate because the conduct was not in dispute. Ms Fitzgerald went to Hervey Bay. It may have been preferable to discuss the matter with Ms Fitzgerald prior to dismissing her but the Code does not require such a step to be taken and in the circumstances it does not alter my views set out above.
[45] For the reasons given, I am satisfied, and find, that:
• Immediately before the time of dismissal, TLB was a small business employer; and
• TLB complied with the Small Business Fair Dismissal Code in relation to the dismissal.
[46] Consequently, I am satisfied that the dismissal was consistent with the Small Business Fair Dismissal Code. Ms Fitzgerald has not been unfairly dismissal. The application is dismissed.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR723299>
1 Applicant’s Outline of argument: objections at 3a; Attachment 2 paragraph 2.
2 Pinawin v Domingo [2012] FWAFB 1359, [29]-[30].
3 Khammaneechan v Nanakhon Pty Ltd ATF Nanakhon Trading Trust T/A Banana Tree Cafe [2010] FWA 7891 (Bartel DP, 14 October 2010) at para. 60, [(2010) 204 IR 39]; cited with approval in Pinawin T/A RoseVi.Hair.Face.Body v Domingo [2012] FWAFB 1359 (Watson VP, Richards SDP, Cloghan C, 21 March 2012) at paras 27, 29, [(2012) 219 IR 128]; Steri-Flow Filtration (Aust) Pty Ltd v Erskine [2013] FWCFB 1943 (Acton SDP, Smith DP, Roe C, 24 April 2013).
4 Harley v Rosecrest Asset Pty Ltd T/A Can Do International [2011] FWA 3922 (McCarthy DP, 21 June 2011) at para. 9; cited with approval in Pinawin T/A RoseVi.Hair.Face.Body v Domingo [2012] FWAFB 1359 (Watson VP, Richards SDP, Cloghan C, 21 March 2012) at paras 28–29, [(2012) 219 IR 128].
5 Referring to Williams v the Chuang Family Trust t/a Top Hair Design [2012] FWA 9517 [40] and Sykes v Heatley Pty Ltd t/a Heatley Sports (unreported, AIRC, Grainger C, 6 February 2006) PR914149 [20].
6 PN835.
7 Statement of Ms Tanya Barton at paragraph 3.
8 PN788 to PN790.
9 PN798 to PN801.
10 PN802 to PN803.
11 Pinawin v Domingo [2012] FWAFB 1359, [30].
12 PN267.
13 Ibid; PN309.
14 PN159.
15 PN309.
16 PN1092.
17 Media Statement, Prime Minister of Australia, 29 March 2020.
18 PN1140 to PN1142.