[2020] FWC 761

The attached document replaces the document previously issued with the above code on 12 February 2020.

The name of the Respondent has been amended from “Kandeena Pty Ltd” to “Kandeena Pty Ltd as Trustee for THE RASMUSSEN FAMILY TRUST” in accordance with an Order dated 24 February 2020 issued by the Commission on pursuant to s.586(a) of the Fair Work Act 2009.

Elizabeth Furfaro

Associate to Commissioner Hunt

Dated 24 February 2020

[2020] FWC 761
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Paula Jane Allen
v
Kandeena Pty Ltd as Trustee for THE RASMUSSEN FAMILY TRUST
(U2019/5176)

COMMISSIONER HUNT

BRISBANE, 12 FEBRUARY 2020

Application for an unfair dismissal remedy – whether casual employee meets minimum employment period - unfair dismissal despite two valid reasons for dismissal – reduction in compensation for misconduct of a person contributing to employer’s decision to dismiss person

[1] On 7 May 2019, Ms Paula Allen made an application to the Fair Work Commission (the Commission) pursuant to s.394 of the Fair Work Act 2009 (the Act) alleging that her dismissal from Kandeena Pty Ltd as Trustee for THE RASMUSSEN FAMILY TRUST (Kandeena or the Respondent) was harsh, unjust and unreasonable.

Background and jurisdictional objection

[2] Kandeena was, up until August 2019, the main operator of Puma Service Stations in the Rockhampton region, operating eight sites in the region.

[3] Ms Allen commenced employment with Kandeena on 25 November 2014 as a casual Console Operator. Prior to this, Ms Allen was employed by Puma Energy commencing 1 December 2013. Her service from Puma Energy was recognised by Kandeena.

[4] In her Form F2 application, Ms Allen stated she was dismissed on 2 May 2019. The Respondent objected to the application on the basis that Ms Allen was a casual employee, was not regularly and systematically employed and had no reasonable expectation of continuing employment. 1

[5] The matter was heard before me in Rockhampton on 1 October 2019. Ms Allen appeared on her own behalf, and Mr Karl Rasmussen, Director of Kandeena, appeared on behalf of the Respondent. Ms Allen and Mr Rasmussen gave evidence and were cross-examined. The following people gave evidence and were cross-examined:

The Legislative Framework

[6] Section 382 of the Act provides for when a person is protected from unfair dismissal, and states:

“382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(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.”

[7] Section 383 of the Act defines the meaning of ‘minimum employment period’ and states:

“383 Meaning of minimum employment period

The minimum employment period is:

(a) if the employer is not a small business employer--6 months ending at the earlier of the following times:

(i) the time when the person is given notice of the dismissal;

(ii) immediately before the dismissal; or

(b) if the employer is a small business employer--one year ending at that time.”

[8] Pursuant to s.396 of the Act, the Respondent’s jurisdictional objection that Ms Allen had not completed the applicable minimum period of employment and was therefore not a person protected from unfair dismissal must be determined before the merits of Ms Allen’s application can be considered. If I find that Ms Allen did not meet the minimum period of employment pursuant to s.383 of the Act, the application will be dismissed. If I find she met the minimum period of employment, it is then necessary to determine if the dismissal was harsh, unjust or unreasonable.

[9] Section 387 of the Act relevantly provides:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.”

[10] The type of conduct that may fall within the words ‘harsh, unjust or unreasonable’ was outlined by McHugh and Gummow JJ in Byrne v Australian Airlines Ltd 2 as follows:

“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”

[11] Should I find that Ms Allen met the minimum period of employment, I am duty bound to consider each of the criteria set out in s.387 of the Act in determining this matter. 3

Evidence and submissions of Ms Allen

[12] Ms Allen stated that she worked an average of 30-35 hours per week. In January 2015, she transferred from the Puma Coach site to the Puma Tourist site into the position of head cook. From January 2015 to March 2016, she was regularly and systematically rostered to work Monday to Fridays, from 4:00am to 11:00am or 12:00pm. 4 In March 2016, Ms Allen’s start time changed from 4:00am to 12:00am.

[13] It is her evidence that she was doing daybooks, banking, orders, stocktake, and she relief-managed the store for a week when a manager was off sick. Mr Rasmussen said to her at some point in time that being a console operator was mind-numbing work, and employees go home very tired. Ms Allen agreed with him and it was her strong preference not to do console work.

[14] In April 2016, Ms Allen sustained a workplace injury and her claim for compensation was accepted by WorkCover.

[15] On 15 May 2017, Ms Allen signed a “Kandeena Policy Handbook – Version 6 November 2016”.

[16] In October 2017, Ms Allen resumed the hours of work she had been performing prior to sustaining a workplace injury; approximately 32 hours per week at the Thozet Road site. However, Ms Allen states that she did not return to her position of head cook.

Fire at Thozet Road

[17] On 28 February 2019, there was a fire in the electrical switchboard at the Thozet Road site. Ms Allen had commenced work at 4:30 am, and after the fire she was asked to cover a shift at the Wandal site due to staff shortages.

[18] Following the fire, the Thozet Road site was inoperable, and Ms Allen was transferred to the Puma Coach site. Ms Allen’s evidence included an offer of employment letter, with a commencement date of 1 March 2019. The “Kandeena Policy Handbook – Version 8” was provided. The employment letter stated that “this letter of offer is binding, any breaches of the clauses stated in the Policy, will be faced with disciplinary action and may result in termination of your employment”

[19] Ms Allen stated that during her 4.5 years of employment with Kandeena, in which she had been required to transfer between different sites owned by Kandeena, she had never been required to sign a form like this. 5 Ms Allen stated in her evidence that she had questioned the validity of signing this document, as she had signed an offer of employment in November 2014. Ms Alllen did not sign the offer as she held concerns that the probation period provided in clauses 6.1 and 6.2 within it would apply, noting that she had been working for Kandeena for approximately four years by this stage.

[20] Although Ms Allen did not sign the offer of employment letter, she continued working at the Puma Coach site. Ms Allen stated that she had only been offered two shift per week at the Puma Coach site, however she was able to pick up extra shifts at different sites owned by Kandeena from time-to-time.

Blocked from working at other sites

[21] Ms Allen stated that in March 2019, Kandeena blocked her from ‘Deputy’, the Respondent’s rostering software system. As a result of this, Ms Allen stated that she only worked at the Coach site as she had not been notified nor made aware of shifts at the different sites owned by Kandeena.

[22] Ms Allen’s evidence included a text message conversation with Ms Donna Ketu, Manager of the Puma Tourist site, at approximately 5:15 pm on 27 March 2019 regarding an available shift at that site. The text exchange is as follows:

[23] It is apparent that the Respondent was not aware of the above text messages between Ms Ketu and Ms Allen prior to the dismissal. Similarly, following Ms Allen’s dismissal, Mr Rasmussen discovered email messages between Ms Allen and Ms Ketu dated 6 October 2017 relevant to extra shifts Ms Ketu was going to post on 10 December 2017:

[24] In questioning from me, Ms Allen agreed that she was being afforded preferential treatment from Ms Ketu in being alerted, prior to other employees becoming aware, of additional shifts that would soon be posted for employees to claim. This did not come to the Respondent’s attention until Ms Allen had been dismissed.

[25] Ms Allen’s evidence also included a screenshot of a post submitted on Deputy, made by Mr Rasmussen at 11:37 am on 1 April 2019:

“Hi Team. It never ceases to amaze me how staff all say they are looking for extra hours and yet only a few are consistently picking up the extra shifts. Week 1 of this roster we had 3 employees doing 6 shifts, all of which earn them overtime for the entire shift.

Well done.

An extra special mention to one employee who did 3 overtime shifts. They will get 42 hours pay for the week, and 22 of those hours are at overtime between $43 and $51 an hour.

Regards,

Karl.”

[26] Ms Allen responded to the post on the same day, stating:

“I have had no shifts show up on my deputy except for coach?? Am I blocked from receiving these?? Because I would of definitely worked.”

Termination

[27] On 2 May 2019, Mr Rasmussen met with Ms Allen in the presence of Mr Reid. During this discussion, it was alleged that Ms Allen had breached various clauses of the Policy Handbook, and due to these breaches, her employment was terminated. Ms Allen submitted that it was the first time she became aware of the breaches, and she stated that nothing had been provided in writing. It is necessary to traverse the alleged breaches below.

Mobile Phone Usage and Reading a Magazine

[28] Ms Allen attended the Wandal site after the fire at Thozet Road due to staff shortages. It was alleged that during this shift on 28 February 2019, Ms Allen had breached the following clauses in the Policy Handbook Version 8:

“14.5 Employees will not take a designated crib break between 1.5 hour from shift commencements or 1.5 hours before shift ends.

16.2 The company has a “Sign on / Switch Off” policy. This means that when an employee signs on to commence their shift, they will be required to turn off their mobile phones and electronic devices and store them in a designated area. Employee’s mobile phones and electronic devices can only be used by an employee when on a designated break. After this use the mobile phone/electronic device is to be turned off and stored in the designated area.

16.3 Use of mobile phones/electronic device is to be done discretely and is not to affect or interfere with the normal day to day operations of the site.”

[29] In evidence before the Commission, Ms Allen stated that she did receive phone calls during the shift to her personal mobile, however asserted these calls were regarding the fire that had occurred earlier that day, and therefore were work-related calls. Ms Allen also stated she had contacted her daughter, who at the time was experiencing domestic violence, to check on her welfare.

[30] During her shift, Ms Allen also stated that she was reading a magazine and that she “was working by myself and entitled to a crib break”. Ms Allen made reference to the Policy Handbook Version 8, which states at clause 14.3:

“Staff members on a crib break are not permitted to leave the console area unattended and may not take a smoke break”.

[31] When addressed by Mr Rasmussen on these two issues on 2 May 2019, Mr Rasmussen noted on the Policy breach document:

Sexual Misconduct

[32] Ms Allen stated that it was verbally put to her on 2 May 2019 that she had breached clauses 5.1, 5.3, 5.4 and 22.2.5 of the Policy Handbook Version 8 regarding an alleged incident that occurred on 3 April 2019. The relevant clauses are as follows:

“5.1 Whilst on shift and in Puma uniform you will conduct yourself with the utmost professionalism.

5.3 You will maintain your individual responsibility to act professionally by, not handling personal interests at work and keeping inappropriate language out of workplace.

5.4 Aspects of professional behaviour include but are not limited to the following:

•  Having values and respecting professional roles

•  Having respect for self and for others and their rights

•  Problem solving perseverance

•  Having individual responsibility

•  Knowing your boundaries/limits

•  Staying out of others personal or work affairs

•  Refraining from Gossiping

•  Maintaining appropriate relationships

•  Communicating appropriately

•  Not participating in self-disclosure

•  Refraining from exploitation

•  Not breaching confidentiality clauses

22.2.5 Promote appropriate standards of conduct at all times.”

[33] It is not in dispute that on 3 April 2019, comments were made by Ms Vicki Moore, a colleague of Ms Allen’s, and who I presume to be a console operator. The comments were made regarding a young male customer at the Puma Coach Site. It was alleged that Ms Moore had told the customer to take his shirt off, and following this, Ms Moore said words to the effect, “I wouldn’t mind him coming between my legs, he would just have to clean out the cobwebs”. 6 Ms Allen was in Ms Moore’s presence at this time, and it was reported by Ms Emily Stanley, a colleague of Ms Allen’s, that Ms Allen stated either, “Oh yeah” or “Hell yeah” in response to Ms Moore’s statement.

[34] Mr Rasmussen first addressed this on 2 May 2019 when Ms Allen was dismissed. He recorded her response as:

[35] During the hearing Ms Allen first stated that she could not recall stating “Oh yeah” or “Hell yeah”, and later stated that she denied saying either comment. She stated that she, along with Ms Stanley, were laughing at Ms Moore’s comments. She does not believe that laughing at what Ms Moore stated constituted a sexual misconduct breach.

Dyed Hair

[36] Ms Allen has a pink strip of colour at the back of her hair, which she stated she has had since 2016 to raise awareness for breast cancer. Colour photographs were admitted into evidence demonstrating Ms Allen had a strip of pink hair in 2016. Ms Allen stated that it was put to her on 2 May 2019 that she had received various verbal warnings about her hair colour, and that she had breached clause 9.4 of the Policy Handbook Version 8:

“9.4 All employees are required to start their shifts

…

•  No extreme coloured hair dyes.”

[37] Ms Allen denied breaching the Policy Handbook, and stated that the Policy Handbook she signed in May 2017 did not state that employees were prohibited from having extreme colours in their hair. Ms Allen admitted that she did receive a copy of the Policy Handbook Version 8 in March 2019, however she had not reviewed the updated Policy Handbook as she was of the understanding she was only required to review the front page. Ms Allen stated that it was not until after her employment was terminated that she reviewed the Policy Handbook Version 8 and became aware that extreme colour hair dyes were prohibited.

[38] Ms Allen further asserted that another colleague, Ms Kasey Mitchell, a Site Supervisor, had blue hair dye during her employment with Kandeena. She submitted that this was evidenced by photographs produced by Ms Allen.

[39] Mr Rasmussen first addressed Ms Allen’s hair colour on 2 May 2019 when Ms Allen was dismissed. He recorded her response as:

[40] In questions from me, Ms Allen confirmed that she would have removed the pink strip from her hair in order to continue to be employed.

[41] In answering questions from me during the hearing, Ms Allen denied that there was any conversation with Ms Bendall on or around 17 April 2019 about her hair colour. She considered that the diary notes purportedly made contemporaneously by Ms Bendall were prepared following Ms Allen’s termination and under pressure from Mr Rasmussen.

Defaming Kandeena

[42] Ms Allen stated it was further put to her during the discussion on 2 May 2019 that she had again breached clauses 5.1, 5.3, 5.4 and also clauses 21.1 and 25.7 of the Policy Handbook Version 8 on 8 March 2019. Clause 21.1 and 25.7 are as follows:

“21.1 The Company is committed to ensuring that the working environment is free from discrimination and harassment.

25.7 All information related to compensation, bonuses and other personal issues are strictly confidential and must not be discussed with or otherwise disclosed to other employees”.

[43] It was alleged that on 8 March 2019 at the Wandal site, Ms Allen made explicit comments to a young colleague (aged around 20 years old) regarding Kandeena, and how Kandeena had “fucked my shoulders”. Ms Allen went on to say that she was seeing a lawyer, that “this place was so much better before Kandeena took over” and that Kandeena may “not be here in November”. The employee who made the allegation stated that Ms Allen had told her not to repeat any of what she had said to anyone, and it made the employee feel uncomfortable.

[44] Mr Rasmussen first addressed this on 2 May 2019 when Ms Allen was dismissed. He recorded her response as:

[45] In Ms Allen’s Form F2 application relevant to this matter she stated:

Other relevant information

[46] In the material filed in the Commission, and during the hearing, Ms Allen asserted that Mr Rasmussen was engaged in some sort of a cover up relevant to the fire at the Thozet Road site. It is her evidence that on 28 February 2019, after the fire had been extinguished by the Fire Brigade, she returned to the premises with Ms Mitchell and Ms Roxanne West. They returned to secure cash and paperwork. Ms West stated that she had smelt smoke the day before. It is Ms Allen’s evidence that Ms Mitchell said, “Shut your mouths. Don’t say anything about it.”

[47] The following day Ms Allen was asked to give an account of the fire to Puma representatives. She told them about possums in the wall out the back in the storeroom behind the cold room. She was asked to supply a written report. She completed it and gave it to Ms Mitchell, who would then forward it to Puma. It is Ms Allen’s evidence that Ms Mitchell asked her to remove all references to possums, which Ms Allen did, reluctantly.

[48] Ms Allen considered that she had done the wrong thing, and it is her evidence that she informed Ms Ketu about Ms Mitchell’s statement to her and to Ms West to “Shut your mouths”. Ms Allen also reported her concerns to Ms Hall on 3 March 2019.

[49] Following Ms Allen’s dismissal on 2 May 2019, she telephoned Ms Hall. It is Ms Allen’s evidence that Ms Hall said to her that a couple of weeks earlier she had been at the Puma Tourist site and had noticed a photographer there. Ms Hall asked Mr Rasmussen why the photographer was there, and Mr Rasmussen replied, “I have a staff member who has put in a workers compensation claim. I’m thinking of sacking her and taking my chances.” Ms Hall informed Ms Allen that she did not know at the time that it was Ms Allen to whom Mr Rasmussen was referring.

[50] Ms Allen submitted that her dismissal was harsh, unjust and unreasonable. She submitted that she was not afforded procedural fairness, nor given an opportunity to change or fix allegations about her.

[51] She stated that she was not given any warnings, verbal or written prior to the dismissal interview on 2 May 2019. She was not given any advance notice that the meeting was taking place, and she did not know that her employment was at risk. After informing her that she was dismissed, Mr Rasmussen refused to provide to her copies of the written breaches at the dismissal interview, and he said to her that if she wanted copies of the Policy breach documents she would need to subpoena them from him.

[52] Ms Allen submitted that all of the four written breaches were given to her at the time of the dismissal, and she had no idea she was being dismissed until the end of the interview. Relevant to the mobile phone/magazine breach, it is Ms Allen’s submission that it required Mr Rasmussen to visit the sites at which she worked and view CCTV footage to discover any breaches, otherwise he would not have known that she was on the phone or reading a magazine.

[53] Ms Allen submitted that Mr Rasmussen sought to dismiss her on account of having stepped up her workers compensation claim to a common law claim where a substantial sum was sought. She considered that everything changed once she made that claim, and she was denied extra shifts, and Mr Rasmussen went on a campaign to obtain statements from employees against her. Further, she submitted that she was earmarked for dismissal on account of providing her account of the fire at the Thozet Road site to Puma and its relevant investigator.

Remedy sought

[54] It is Ms Allen’s submission that had she been employed by the Respondent when it handed back all of the service stations to Puma in August 2019, she would have been engaged by Puma. She considered that she had been disadvantaged, and Puma would be unlikely to employ her given she was required to request Ms Hall’s attendance in these proceedings.

[55] At the time of the hearing Ms Allen had not commenced employment, despite hand-delivering her CV to 30 businesses. She stated during the hearing that she was going to commence employment the week following the hearing.

Evidence of Ms Kirstie Fletcher

[56] Ms Fletcher provided a witness statement in these proceedings and gave evidence at the hearing.

[57] At the first meeting when the Respondent took over the Puma business, Mr Rasmussen stated, “I’ve never been taken to court and not won.”. She said this made her feel intimidated, especially as it was meant to be a welcome to new employees.

[58] She stated that before she incurred a workplace injury, she felt that she was a valued employee. After suffering a workplace injury, she considered that she was “out of sight, out of mind”, and was not contacted by management at all. On her return to work she still had some workplace restrictions, including a weight limitation on lifting. She considered that she was micro-managed by a manager. She was directed to meet with Mr Rasmussen and Ms Mitchell and was directed not to make a cup of coffee in case it caused injury to her. This caused her hurt and humiliation.

[59] In cross-examination Ms Fletcher agreed that the Respondent, including Ms Mitchell and Mr Rasmussen worked closely with her on a return to work plan.

[60] Other than Ms Fletcher’s evidence at [57], I do not consider Ms Fletcher’s evidence to be of any probative value. Ms Fletcher’s experiences during her return to work are her own experiences, and I do not consider that they have any bearing on Ms Allen’s dismissal.

Evidence of Ms Karen Weder

[61] Ms Weder provided a witness statement in these proceedings and gave evidence at the hearing.

[62] Ms Weder’s evidence is that she was micro-managed by head office. In cross-examination she elaborated that she had to do certain things at certain times. She conceded that at a management meeting there was a request made to see head office staff more often which might contradict the evidence of being micro-managed.

[63] She agreed that dismissing staff was not ever discussed at management meetings. Incentives for various sites were discussed. She considered Ms Allen to be a good worker.

Respondent’s evidence and submissions

[64] In the Form F3 Employer Response completed by Mr Rasmussen, no jurisdictional objection was noted. It was not until 30 August 2019 that a jurisdictional objection on account of Ms Allen’s status as a casual employee was made.

[65] Relevant to Ms Allen’s strip of pink hair, the Respondent stated:

[66] The ‘multiple deliberate breaches’ detailed below included sexual misconduct, mobile phone usage and reading a magazine during work hours, and defamatory comments. Relevant to the sexual misconduct breach, the Respondent stated:

Evidence of Mr Karl Rasmussen

[67] Mr Rasmussen did not provide an appropriate witness statement in these proceedings, but rather submissions intermingled with evidence, but not in the first person. The contents on the submissions on each of the issues providing the reasons for the dismissal are detailed below.

Pink hair

[68] It was asserted that Ms Allen had been verbally counselled on 17 April 2019 by Ms Bendall as to her strip of pink hair. Ms Bendall’s notes reflect the following:

[69] Mr Rasmussen conceded that the Policy Handbook dated May 2017 did not provide a prohibition on extreme hair colour, but the later version dated 17 October 2018 did, and further, Ms Allen was aware of the policy.

[70] Mr Rasmussen denied that Ms Mitchell had blue hair during her employment. Mr Rasmussen confirmed that he has known Ms Mitchell for over 30 years, and he treats her like his daughter.

[71] He acknowledged that Ms Mitchell was photographed one day following her employment ending with bright blue hair, but denied that it was coloured in such a way during her employment. Answering a question from me, Mr Rasmussen said that Ms Mitchell has coloured her hair for many years, and was always able to have any extreme hair colour removed from her hair between weekends, and when she returned to work. He considered that she dyed her hair for her farewell party, one day after she had finished working for the Respondent. He noted that she has been a hairdresser.

[72] In written submissions the Respondent stated:

[73] During the hearing I inquired of Mr Rasmussen if the hair colour did form a reason for the dismissal? He stated that it did, and he had meant to say that it formed a reason for the dismissal, but wasn’t the only reason for the dismissal.

[74] I questioned Mr Rasmussen as to when Ms Bendall had made him aware that there was an issue with Ms Allen’s hair? He said that Ms Bendall let him know from time to time of any issues, but he could not recall the date.

Sexual misconduct

[75] The Respondent submitted that Ms Allen’s conduct in laughing with Ms Moore at her sexual comment, and saying either, “Oh yeah” or “Hell yeah” constituted a breach of the Sexual Discrimination Act 1984. Mr Rasmussen stated that Ms Allen had previously lodged a sexual harassment claim against a male worker, resulting in the male worker being dismissed by the Respondent. Further, Ms Allen completed a questionnaire as part of her training, requiring her to nominate three behaviours that have zero tolerance in the workplace; one answer was sexual harassment.

[76] Mr Rasmussen was in receipt of a written account from Ms Emily Stanley, of the incident of 3 April 2019. It was his view that Ms Stanley was made to feel uncomfortable about the incident.

[77] I questioned Mr Rasmussen as to what, if any disciplinary action was taken against Ms Moore on account of her statement? He confirmed it was a very offensive thing to say. He agreed that no warning had been issued to Ms Moore, or even that she had been counselled. He stated:

[78] In cross-examination, Mr Rasmussen stated that Ms Stanley was not disciplined by him for her involvement in the incident, that being her giggling and reference to Ms Moore and Ms Allen being “cougars”. He was unsure if she had been warned by Ms Bendall which was the evidence she gave during the hearing. Mr Rasmussen considered that Ms Stanley was distressed by the incident. Ms Allen put to Mr Rasmussen that Ms Stanley was not distressed by it; she was in fact giggling over the incident as evidenced in her statement. Mr Rasmussen confirmed that Ms Stanley was requested by management to make the statement that she did.

Mobile phone / reading a magazine

[79] It is the Respondent’s policy that anybody requiring to ring an employee at work is to ring the service station’s land line and not the individual’s mobile phone. Mr Rasmussen’s evidence is that when Ms Allen was addressed on this issue on 2 May 2019, she did not mention that she had made or taken additional calls on 28 February 2019 on account of the fire at the Thozet Road site.

[80] It was submitted that Ms Allen was aware that the Respondent took a zero tolerance approach to breach of the mobile phone policy, and she was aware that she could face disciplinary action, including dismissal for breach of the policy.

[81] The Respondent submitted that Ms Allen has spent a very considerable amount of time reading a magazine when she was at work on 28 February 2019.

[82] In cross-examination, Mr Rasmussen said he came across the CCTV footage by accident as he had reason to look at the footage when he was looking for other things. In answering a question from me, he agreed that he would normally address the use of mobile phones and reading of magazines with an employee and provide them with an opportunity to improve; he would not move to immediately dismiss them.

Defamation / gossiping

[83] The Respondent relied upon a written statement made by a young employee dated 18 March 2019 which refers to a conversation the young employee had with Ms Allen on 8 March 2019. It reads:

[84] When this allegation was put to Ms Allen on 2 May 2019 that she held this discussion with the young employee, she denied it.

[85] Mr Rasmussen couldn’t recall if the young worker made the statement voluntarily or was requested to do so by management.

Conversation with Kathleen Hall

[86] Mr Rasmussen agreed that he did meet with an investigator while at the Puma Tourist site, and did speak with Ms Hall. He agreed that he stated that the inspector was on site in relation to a workcover claim. The investigator was taking photographs and weighing various products that Ms Allen might need to pick up. Ms Hall asked what he was doing there, and he explained.

[87] During the hearing he denied stating that he was considering dismissing an employee.

[88] In answering questions from me he stated that Ms Hall was lying when she gave her evidence to the Commission. He stated that there was ‘history’ with Ms Hall, but at no time did he put this to Ms Hall during cross-examination of her, nor suggest that her evidence was not true.

Fire investigation

[89] Mr Rasmussen denied that he held any concern as to Ms Allen’s reporting of concerns relevant to the fire at the Thozet Road site.

[90] There was evidence given as to what occurred to the toaster at the Thozet Road site, when the toaster had been called upon by Puma to be produced for investigation. Mr Rasmussen’s evidence was that all of the damaged stock and store contents was put into a skip bin out the front. This included soiled cigarettes that could not be sold on account of the fire. Regrettably, some individuals began to ‘dumpster dive’ and retrieve the cigarettes, so he took them to the Yeppoon tip.

[91] Mr Rasmussen’s oral evidence to the Commission was that he took only the cigarettes to the Yeppoon tip. When he was asked to read the emails he had sent to Ms Hall where she, on behalf of the investigator asked for the toaster to be made available for inspection, he recalled that the email stated that he took the toaster to the tip. He then stated that he took the toaster with him to the tip. I reminded Mr Rasmussen of his evidence only minutes earlier that he had taken only the cigarettes to the tip. The following was discussed:

Commissioner: You went to the dump. What did you take with you?

Mr Rasmussen: I can’t recall.

[92] In cross-examination, Mr Rasmussen denied that Ms Allen’s fire report was a catalyst for dismissing her.

Other duties

[93] Mr Rasmussen denied that Ms Allen was removed from doing administration on account of having brought a common law workers compensation claim. He stated that a number of employees could perform administration work and it was shared between them. Further, he rejected Ms Allen’s evidence that she had performed relief manager work.

[94] It was Mr Rasmussen’s evidence that the Respondent could have taken the opportunity to let the employees who had been working at the Thozet Road site go, and not provide any other work to them. The Respondent, however, provided as many shifts as it could to the affected workers.

Blocking extra shifts

[95] In cross-examination, Ms Allen put to Mr Rasmussen that since she made a common law workcover claim she was blocked from working additional shifts. He denied that the Deputy rostering application had the ability to block somebody. Mr Rasmussen’s evidence was given after Ms Bendall’s oral evidence, and accordingly I reminded Mr Rasmussen that Ms Bendall had given evidence that Ms Allen was blocked from sites other than Coach. Mr Rasmussen agreed that suitable duties plans had not been organised at specific sites. He agreed that he had not informed Ms Allen that she would not be able to pick up additional shifts on account of her continued restricted duties.

Meeting of 2 May 2019

[96] Mr Rasmussen stated that before he conducted the meeting of 2 May 2019, he obtained advice. He was informed that if Ms Allen did not sign documents presented to her, he need not provide a copy of them to her. He agreed that he said to her that she would need to subpoena the documents. He stated that in hindsight, he was given bad advice. His evidence is that he did not discuss with his advisors that he was contemplating dismissing Ms Allen at the meeting.

[97] In answering a question from me, Mr Rasmussen conceded that it was not an appropriate thing to say to Ms Allen. He committed to not doing that in future with other employees.

[98] In cross-examination he stated that Ms Allen was not offered a support person and she did not request one. He denied that he had already decided that he was going to dismiss her before the meeting.

[99] In cross-examination, he was asked if Ms Allen could have remedied any of the alleged policy breaches. He stated that she would have been unable to remedy the sexual harassment, nor the intimidation of the young worker. He denied that he had ambushed Ms Allen by giving to her four breaches on one day.

[100] In cross-examination he denied asking Ms Bendall to falsify diary entries.

Evidence of Ms Kasey Mitchell

[101] Ms Mitchell provided a witness statement in these proceedings and gave evidence at the hearing. As Site Supervisor, Ms Mitchell was responsible for human resources, workplace health and safety, rehabilitation and overseeing the everyday running of eight service stations.

[102] Ms Mitchell’s written evidence spoke highly of the charitable works of Mr and Mrs Rasmussen.

[103] In oral evidence Ms Mitchell stated that she had earlier been a hairdresser. If she coloured her hair on a weekend, she could strip it of the colour, ready for her next attendance at work.

[104] She stated that she did not have blue/black hair whilst in employment, including on her last day, and she only attempted to colour her hair after the cessation of her employment.

[105] Relevant to the fire at the Thozet Road site, if an employee had a concern about an electrical fault, they would need to report the incident on the Puma platform, complete a form and notify Ms Mitchell. No person made such a report at the Thozet Road site.

[106] Ms Mitchell stated that she arrived at the Thozet Road fire shortly after the event and phoned Mr Rasmussen and Ms Hall. Ms Mitchell’s evidence is that Ms Allen discussed the safety board having an issue the day before. In cross-examination Ms Allen put to her that she had not worked the day before, and Ms West had, and it was Ms West who had made that statement. Ms Mitchell disagreed that Ms West was the one who had told her of the concern with the safety board. Ms Mitchell said Ms Allen had said the safety board had been an issue one week earlier.

[107] In cross-examination Ms Mitchell denied saying “shut your mouth” to Ms West and to Ms Allen about having smelt smoke. She cannot recall it being discussed.

[108] Relevant to the report prepared by Ms Allen, Ms Mitchell denied asking Ms Allen to withhold evidence. Ms Mitchell could not recall a telephone call with Ms Allen regarding her written report. She denied asking Ms Allen to remove references to possums. She forwarded Ms Allen’s statement on to Puma.

[109] In examination-in-chief, Ms Mitchell stated that she researched a rostering system and worked with Deputy to implement it at the Respondent’s various sites. Her evidence is that an employee cannot be blocked, however can be removed from accessing shifts at certain sites. Ms Allen was removed from some locations while she was on her suitable duties plans. The Respondent brought in a specialist to advise an appropriate scope of works at some sites, and she was not permitted to work at the other sites.

[110] Ms Allen asserted that around March and April 2019 she was blocked from accessing shifts at other sites. Ms Mitchell agreed that Ms Allen asked her about being blocked.

[111] Ms Mitchell considered the Respondent was very considerate of Ms Allen in many respects, including organising for her to visit a hairdresser when her shoulder injury prevented her from washing her hair.

[112] Ms Mitchell stated that when Ms Allen lodged a workers compensation common law claim, there was a sudden shift between the parties. Ms Mitchell considered that Ms Allen did not want to work as many shifts because working less shifts would increase her common law claim. Ms Mitchell sought appropriate advice. She considered that Ms Allen suddenly was no longer able to do many tasks that she earlier could do on account of her common law claim.

[113] Ms Mitchell’s evidence was clear that she had become cynical of Ms Allen and her issues with not being able to perform some tasks, despite attempting to find her appropriate work. I informed Ms Mitchell that Ms Bendall’s oral evidence revealed that Ms Allen was often crying at work on account of her shoulder pain, and this caused considerable concern to Ms Bendall.

[114] In cross-examination Ms Allan put to Ms Mitchell that she had bragged about undertaking online study at night, declaring that she was studying how to manipulate people, and she could manipulate anybody. Ms Mitchell agreed that she was undertaking online study, paid for by Mr Rasmussen, but denied making the statement attributed to her.

Witnesses ordered to attend by the Commission

[115] Ms Kathleen Hall, Mr Kent Reid and Ms Raelene Bendall were ordered to attend and give evidence at the request of Ms Allen.

Evidence of Ms Kathleen Hall

[116] Ms Hall agreed she spoke with Ms Allen shortly after the fire at Thozet Road. Ms Allen informed Ms Hall that Ms Mitchell had told her to “shut her mouth”.

[117] Ms Hall agreed that Ms Allen was concerned about her employment. Ms Hall assured Ms Allen that she was free to make a full report.

[118] Ms Hall stated that Puma informed Mr Rasmussen that the lease across the various sites would not be renewed, but it was uncertain as to when this would occur.

[119] Regarding the fire, the finding was that there were no suspicious circumstances. Ms Hall recalled a conversation that there had been a light fitting ‘tripping’. She assumed that if Ms West had smelt smoke prior to the fire, she would have known how to report that. Ms Hall struggled to recall a conversation with Mr Rasmussen where he stated that he took the store’s cigarettes and toaster to the dump.

[120] Ms Hall agreed that Mr Rasmussen met with her at the Tourist site and said words to the effect, “I have a staff member who has put in a workers compensation claim and I’m thinking of sacking her and taking my chances.” She thought, “Wow!” She considered it was improper. Mr Rasmussen did not put to Ms Hall that she was incorrect in her evidence to the Commission.

Evidence of Mr Kent Reid

[121] Mr Reid was required by Mr Rasmussen as a witness to the meeting he held with Ms Allen on 2 May 2019.

[122] In cross-examination, Mr Reid was asked if he considered that Ms Allen was being ambushed. He stated that Ms Allen agreed with some of the policy breaches, but disagreed with some. He stated that he was not privy to any information prior to the meeting.

[123] He recalled that during the meeting Ms Allen asked Mr Rasmussen for the policy breach reports, to which Mr Rasmussen stated that she would need to subpoena them.

[124] He agreed that he was present when Ms Stanley reported the sexual harassing statement made by Ms Moore. In answering a question from me, Mr Reid considered that Ms Moore should have been disciplined over the sexual harassment issue.

Evidence of Ms Raelene Bendall

[125] Ms Bendall provided a witness statement in these proceedings and gave evidence at the hearing.

[126] Ms Bendall was a manager at the Coach site. During her employment, Mr Rasmussen asked her to look through her diary and provide the diary entries to Mr Rasmussen. She agreed that she stated to Ms Ketu that her bonuses for June and July 2019 had been held back until she gave evidence for the Respondent. She later learned that other managers had not been paid their bonuses. She did not consider that evidenced Mr Rasmussen withholding her bonus payments until she made a statement, given her statement was made on 15 May 2019.

[127] Ms Bendall stated that to the best of her knowledge, Ms Allen was not being singled out. She agreed that she was given direction on Ms Allen’s employment, including by Ms Mitchell to make sure that if Ms Allen was having trouble with her tasks, to change her tasks. Ms Bendall considered that it was in the resondent’s best interests to find lighter tasks for Ms Allen.

[128] Ms Bendall denied that she falsified a verbal warning related to Ms Allen’s hair. Ms Bendall stated that discussing something with an employee constitutes a verbal warning. She stated that Ms Allen broke down in tears when she was addressing the issue with her.

[129] I asked Ms Bendall how dramatic Ms Allen’s hair was, and was it brighter than the day of the hearing? She explained that it was a bright pink in April 2019 when she spoke with her. She agreed that Ms Allen had coloured her hair pink ‘forever’, and at least since 2016. Ms Bendall questioned her as to the breach of policy, and Ms Bendall was questioning other employees in relation to their footwear.

[130] It is Ms Bendall’s evidence that she wrote the diary note to ‘cover herself’. She did not do anything beyond that, other then discuss the issue with Mr Rasmussen the next time he attended the site. Ms Bendall conceded that the next occasion Ms Allen attended for work with pink hair, Ms Bendall did not address it with her. Ms Allen went on leave at around this time.

[131] During the hearing Ms Bendall admonished herself for not having provided a written warning to Ms Allen regarding her pink hair. She agreed that her hair colour did not affect her ability to perform her work, and her hair was tied up in a high pony tail.

[132] Relevant to the sexual misconduct issue, she stated that she “backed off and left it alone.” She stated that she passed it on for higher management to deal with as it was beyond her disciplinary level. During the hearing she conceded that Ms Moore should have been disciplined too. She stated that Ms Stanley was issued a verbal warning for laughing at the incident. She was not sure why Ms Moore was not disciplined.

[133] Relevant to the allegations of Ms Allen gossiping about the business, Ms Bendall considered that was detrimental to the team environment. She stated that employees need to be supportive of bosses and owners, and it is not appropriate to run them down by saying that they’re not supportive leaders.

[134] Relevant to whether Ms Allen was blocked from obtaining additional shifts at other sites, Ms Bendall’s evidence is that Ms Mitchell issued instructions to give Ms Allen as many as hours as possible. Ms Bendall held concerns that there were things that Ms Allen could not do given her shoulder injury. The Respondent swapped shifts around so that other people could clean the grill, even though Ms Allen would still cook. Ms Allen would also do console operator work. Ms Bendall stated that the Respondent worked it so that Ms Allen could still do the hours.

[135] Relevant to the Deputy rostering system, Ms Allen came to see Ms Bendall and asked if she was blocked. Ms Bendall gave her a short answer and told her she’d need to take it up with head office. Ms Bendall believed she had site access only, and she was not able to access other sites.

[136] Ms Bendall did mention to Mr Rasmussen that Ms Allen had asked if she was blocked from Deputy. Ms Bendall cannot recall if Mr Rasmussen replied. Ms Bendall understood that several employees were blocked, and not everybody has full access. She agreed that Ms Allen couldn’t pick up additional shifts. Ms Bendall had been informed by Mr Rasmussen that because of the safety of her shoulder, Ms Allen was not to work alone on a site. Ms Bendall did not feel comfortable sharing this information with Ms Allen.

[137] Ms Bendall agreed that until a workers compensation common law claim was made, Ms Allen often worked alone.

[138] Ms Bendall agreed that on 2 May 2019, she informed Ms Allen that Mr Rasmussen wanted to see Ms Allen. She said she was aware that Ms Allen was going to be dismissed. During cross-examination she said she had not been told that by Mr Rasmussen, but she had a feeling it would occur. She stated, “Bosses don’t come to offices very often.” She thought his attendance meant Ms Allen was being dismissed.

[139] Following Ms Allen’s meeting with Mr Rasmussen, Ms Allen walked out and announced she had been dismissed. She tapped Ms Bendall on the shoulder and said, “It’s OK, mate.”

[140] In re-examination, Ms Bendall stated she was concerned that she couldn’t address matters with Ms Allen because she was in tears a lot of the time. Ms Bendall considered that on some occasions it was from the shoulder pain she was experiencing, and at other times it was because of her mental health. Ms Bendall backed off from addressing issues with Ms Allen because Ms Allen was sad a lot of the time. While Ms Allen was never in tears on the floor of the service station, she was in tears in the staff room and behind the scenes.

[141] Ms Bendall’s evidence is that she had not dealt with a workcover claim before. She thought Ms Allen’s shoulder injury had recovered, and she was a bit taken aback when she discovered that Ms Allen still had a restriction. Ms Mitchell informed Ms Bendall that Ms Allen had a full clearance. Ms Allen informed Ms Bendall that she didn’t have full clearance, but she was ‘stable and stationary’, and would have to work around the pain she was in. Ms Mitchell sent to her a clearance stating she fit for work.

[142] Ms Bendall stated that the Respondent made many allowances and provided to Ms Allen light duties. She considered that the managers were compassionate. She felt conflicted because she evidenced the physical pain of Ms Allen, but other employees were complaining because they were having to do the mopping, sweeping, and cleaning of the grill.

Consideration

Jurisdictional objection

[143] On the evidence before the Commission I am satisfied that Ms Allen’s casual employment commenced with the Respondent in 2014 and continued on a regular and systematic basis through until 2 May 2019. She had an expectation of continuing work, and was regularly rostered to work a minimum of two shifts per week, but was, in fact, working more than that.

[144] It is noted that Ms Allen’s prior service transferred from the earlier employer to the Respondent, and on the information before the Commission, this was at least as early as 2013.

[145] Ms Allen has met the minimum employment period of six months and the application before the Commission is competent. Ms Allen is a person protected from unfair dismissal.

Section 387 considerations

s.387(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)

[146] On the evidence of the Respondent, Ms Allen was dismissed for four breaches of the Respondent’s policies; for having dyed hair, using her mobile phone and reading magazines, defaming the Respondent, and sexual misconduct.

Pink hair

[147] Relevant to the streak of pink in Ms Allen’s hair, I find that Ms Allen had been sporting such a style for a considerable period of time, and as early as 2016. The first time she was spoken to about it was on 17 April 2019 by Ms Bendall. On this occasion Ms Bendall informed her that it was a blatant breach of the uniform policy and it would be discussed with Mr Rasmussen. Nothing further occurred until 2 May 2019 when she was addressed by Mr Rasmussen and he recorded her response as, “I’ll have it changed.”

[148] I accept Ms Bendall’s evidence that this was raised with Ms Allen on 17 April 2019.

[149] Ms Allen submitted the Commission should have regard to the high likelihood that Ms Mitchell had bright blue hair during her employment. While I hold very considerable reservations as to the honesty of Ms Mitchell’s evidence that she dyed it following the cessation of her employment and the photo taken of her the following day, I do not consider it necessary to make a finding on this issue.

[150] Ms Allen was warned by Ms Bendall that her pink hair colour caused her concern. However, given she had her hair dyed for many years and it had not earlier been addressed, and Ms Bendall stated she would bring it to Mr Rasmussen’s attention, it is not a significant breach of the Respondent’s relatively new policy to warrant dismissal. In light of Ms Allen’s statement that she will have it changed, it is incredulous that Mr Rasmussen sought to raise it with Ms Allen on 2 May 2019, have her agree to change her hair and rely on it as a reason for dismissing her.

[151] I do not find that Ms Allen’s hair, dyed with a streak of pink was a valid reason for the dismissal.

Mobile phone / reading a magazine

[152] Relevant to Ms Allen’s use of her mobile phone on 28 February 2019, and the reading of magazines, I find that Ms Allen held a valid reason to use her phone repeatedly on that particular day. I accept her evidence that she was involved in conversations regarding the fire at Thozet Road. Further, I accept that there were exceptional circumstances on the day in question regarding the concerns she held for her daughter’s involvement in an alleged domestic violence incident. I note that Ms Allen’s use of the mobile phone whilst at work did not come to Mr Rasmussen’s attention via a complaint; he looked through CCTV footage to discover Ms Allen’s use of her mobile phone.

[153] I accept Mr Rasmussen’s evidence that when the use of the mobile phone was addressed with Ms Allen on 2 May 2019, she did not explain why she was using the phone. If she had done so, perhaps this might have been persuasive information for Mr Rasmussen’s consideration. It is noted, however, that the Respondent claims to have a zero tolerance for the use of mobile phones whilst at work. This would appear to me to be somewhat harsh, given the kind of work performed. Nevertheless, the Respondent is entitled to enforce its policy, and expect its employees not to use their mobile phone whilst at work, and provide appropriate disciplinary action in the event the policy is not followed.

[154] I do not believe that Ms Allen’s reasons for using the phone on 28 February 2019 have been contrived. I accept them as a valid reason. In all of the circumstances I consider that Ms Allen’s use of the mobile phone was not a valid reason for the dismissal, and other appropriate disciplinary action could have been taken relevant to the breach of the Respondent’s policy. It is also noted that Mr Rasmussen conceded in evidence that he would ordinarily discipline employees over this kind of policy breach.

[155] Relevant to Ms Allen’s breach of the Respondent’s policy in reading a magazine at work, I accept that Ms Allen did not merely scan the magazine; she spent a considerable period of time reading it. This was a deliberate breach of the Respondent’s policy. Whilst it was deliberate, I do not consider it to be a valid reason for the dismissal in light of other appropriate disciplinary action the Respondent could have taken to address this breach.

Sexual misconduct

[156] Regarding the sexual misconduct incident, there is no doubt that Ms Allen participated with Ms Moore in the sexual objectification of the young male customer. Ms Moore’s statement was vulgar, yet on the evidence before the Commission, she has not been admonished. Mr Rasmussen’s evidence is that he didn’t wish to get her ‘offside’. Yet the Respondent cited Ms Allen’s statement of “Oh yeah” or “Hell yeah” as an offence to its policies requiring zero tolerance; that is, she must be dismissed for making such a comment. Despite there being no complaint from the customer, and even having regard to Ms Stanley’s concern that the statements were made by the two women, in effect, Ms Allen became the scapegoat of the incident because Ms Rasmussen did not want to get Ms Moore offside.

[157] Ms Bendall’s evidence is that Ms Stanley was verbally warned for her part in the matter, yet Mr Rasmussen did not believe that Ms Stanley was warned for giggling. He considered that Ms Stanley had been offended over the incident, despite Ms Stanley’s written notes that she had been laughing.

[158] I find that Ms Allen did say either, “Oh yeah” or “Hell yeah” in response to Ms Moore’s statement. I do not accept that it constitutes a valid reason for the dismissal, particularly in light of the Respondent’s failure to address Ms Moore’s more vulgar comment. Clearly the Respondent’s zero tolerance for sexual misconduct in its workplace is not enforced.

Defamation / gossiping

[159] Regarding the comments made by Ms Allen to a young worker on 8 March 2019, I find that Ms Allen did make the comments attributed to her. The hand-written note of the young women is articulate, and matches the set of facts identified as the cause of Ms Allen’s workers compensation injury. Further, Ms Allen has made much ado about the Respondent having the petrol station leases until later in 2019, and has been critical of Mr Rasmussen’s decision to exit the Puma business early.

[160] When addressed by Mr Rasmussen on this allegation on 2 May 2019, Ms Allen denied the conversation. I find that she was being untruthful on this issue. In the application to the Commission, Ms Allen denied defaming the Respondent, but stated that she believes that she is entitled to her opinions.

[161] The Respondent’s policy breaches cited are that Ms Allen failed to ensure the working environment is free from discrimination and harassment, and all information related to compensation, bonuses and other personal issues are strictly confidential and must not be discussed with or otherwise disclosed to other employees.

[162] I find that Ms Allen appropriately disclosed to the younger worker that she was unable to share some of the tasks asked of her by the other worker. She did so by explaining her workers compensation injury. Even in light of the Respondent’s stated policy not to discuss such matters, I do not consider it was inappropriate for Ms Allen to share the story of her workers compensation injury. In my experience this is information that is commonly shared in workplaces, and it can even act as an educational experience for the younger worker to understand that injuries can occur in the workplace. I’m certain that the language used by Ms Allen in stating that she had “fucked her shoulder” was somewhat confrontational for the worker.

[163] In terms of Ms Allen saying that she was suing the Respondent, it is expected that when an employee brings a claim of workers compensation they have a right to continue proceedings, including at common law. I do not find that Ms Allen was speaking inappropriately to the younger worker on this issue.

[164] Further, I do not consider that Ms Allen’s statement to the younger worker about the likely length of the lease was inappropriate. I would expect more experienced employees to hold discussions with younger, inexperienced employees about the machinations of employers and how long employment might last with their current employer. It is not sacrilegious to discuss such things in the workplace, despite the Respondent’s policies.

[165] It was, in all of the circumstances, inappropriate for Ms Allen to inform the younger worker that the Puma Tourist site was “so much better” before the Respondent took over the site. Such conversation is likely to demoralise the younger worker.

[166] I do not consider that the conversation itself with the younger worker constitutes a valid reason for the dismissal, however I am extremely troubled by Ms Allen’s denial to Mr Rasmussen that it occurred. I find that she was untruthful to Mr Rasmussen when she denied the statements attributed to her.

[167] It has been necessary to have regard to how the allegations were put to Ms Allen during the conversation of 2 May 2019. She was presented with four separate breaches of workplace policies. She made admissions with respect to her hair colour, and offered to alter it. She made admissions relevant to the mobile phone and magazines, and also in relation to her limited involvement in the sexual harassment. Surprisingly, she denied the conversation as it was purported to have occurred, with the younger worker.

[168] I consider that Mr Rasmussen determined that Ms Allen was not telling him the truth when he presented the breach of policy report relevant to the younger worker’s concern. I have no doubt that he considered the report of the younger worker to be true, and Ms Allen was lying to him.

[169] Ms Allen’s untruths on this issue do constitute a valid reason for the dismissal. It is inappropriate to resile from the statements that she made to the younger worker, when in truth, the statements were not entirely inappropriate. An employer should be able to expect that its employees do not tell untruths when difficult conversations are held with them.

[170] I find that Ms Allen’s failure to acknowledge the conversation with the younger worker, and her denial of the statements which I accept she made constitute a valid reason for the dismissal.

Preferential treatment

[171] Ms Allen’s arrangement with Ms Ketu in December 2017 and March 2019 to provide Ms Allen with preferential treatment of claiming additional shifts was not a reason for the dismissal. This information came to the Respondent’s attention following the dismissal.

[172] The authority in Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 provides that information which has come to the attention of the Respondent post-dismissal needs to be considered and assessed against the criteria in s.387 of the Act for the dismissal.

[173] I consider that Ms Allen’s conduct in allowing Ms Ketu to provide her with advance knowledge of shifts so that she could quickly claim them when they were posted, constitutes misconduct. It is not clear how the Respondent would have dealt with such conduct had it known about it at the time, and how it would have dealt with Ms Ketu’s involvement in the matter.

[174] Given the two incidents that the Respondent has discovered occurred in 2017 and in 2019, it is apparent that it was not a single incident. Whilst the 2019 occurrence might be explained by Ms Allen’s frustration at not receiving additional shifts, and the failure of Mr Rasmussen and others to inform her that she was effectively blocked from claiming additional shifts, the 2017 occurrence cannot be so explained. I find that the 2017 incident constituted a valid reason for the dismissal.

[175] Despite the Respondent’s submissions, I do not find that relevant to the texts exchanged on 10 December 2017, it has the effect of Ms Allen confirming that she was paid for a day’s work when she was ‘supposed to be at work’. I accept Ms Allen’s account that she could not access the posted shift because she would be at work, and she was encouraging Ms Ketu to post it an alternative time when she would not be at work.

s.387(b) - Whether the person was notified of that reason

[176] Ms Allen met with Mr Rasmussen on 2 May 2019 and was presented with four breach notices. The notices were discussed, but Ms Allen was not afforded an opportunity to have a copy of them. Mr Rasmussen’s evidence is that he informed her she would need to subpoena them.

[177] It is very unfortunate for Mr Rasmussen that he took such a position. Employees are entitled to know succinctly the allegations that are put before them. They don’t need to subpoena such documents. It would have been entirely appropriate for Mr Rasmussen to put the allegations to Ms Allen, and if she requested time to review them in the absence of Mr Rasmussen, this should have been accommodated.

[178] I find, however, despite Mr Rasmussen’s failure to afford Ms Allen procedural fairness by allowing her to read at least the breach notices, Ms Allen was notified of the reasons for the dismissal.

s.387(c) - Whether there was an opportunity to respond to any reason related to the capacity or conduct of the person

[179] Ms Allen was afforded an opportunity to respond to Mr Rasmussen’s concerns. I accept her evidence that she did not understand that as a result of the conversation her employment would end.

[180] On Mr Rasmussen’s evidence, he was bringing the four matters to Ms Allen’s attention, despite some of the issues being more than two months’ old. After hearing from Ms Allen, he determined to dismiss her.

[181] As discussed above, Ms Allen made concessions on some of the issues, and denied the conversation with the younger worker. I conclude that there was an opportunity for Ms Allen to respond to the reason related to her capacity or conduct.

s.387(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

[182] Ms Allen did not know that the meeting might result in her employment ending, and accordingly, did not request a support person. Despite the Respondent having a note taker in Mr Reid at the meeting, Ms Allen was not offered a support person. She was not, however, refused a support person as she did not ask for one.

s.387(e) - Was there a warning of unsatisfactory work performance before dismissal

[183] Ms Allen was dismissed for a number of reasons, and the Respondent has cited that it was a summary dismissal. Ms Allen was employed as a casual employee, so was not entitled to the payment of notice.

[184] I accept that Ms Allen had been warned by Ms Bendall relevant to her hair colour approximately two weeks prior to the dismissal. The warning, however, was veiled in Ms Bendall’s declaration that she would need to speak to Mr Rasmussen about it. Ms Allen had been dying her hair for many years and she was not directly informed by Ms Bendall on 17 April 2019 that she must not have dyed hair, only that Ms Bendall could not understand how Ms Allen had not been earlier pulled up on the uniform breach.

s.387(f) - Whether the respondent’s size impacted on the procedures followed and s.387(g) - Whether the absence of a dedicated human resource management specialist impacted on the procedures followed

[185] In the Form F3, the Respondent nominated that it employed 79 employees at the time of Ms Allen’s dismissal. It is not a small business. Ms Mitchell stated that she was responsible for human resources matters. Accordingly, I find that this is a neutral consideration on these two criteria.

s.387(h) Other matters

[186] As noted by Vice President Lawler in Sexton v Pacific National (ACT) Pty Ltd:7

[187] Ms Allen was employed for a period of approximately 4.5 years, with around a further one years’ service on account of the transfer of business from the earlier employer. This amount of service is not a long period of time, nor is it an insignificant period of time. I consider it to be a reasonable period of time. Ms Allen was aged 54 at the time of the dismissal. 8

[188] It is Ms Allen’s submission that she was dismissed because she was somewhat of a whistle blower relevant to the fire at the Thozet Road site. I accept Ms Allen’s evidence that she was directed by Ms Mitchell to remove any reference to possums from her report to Puma. It is concerning that this course of action and this pressure was applied by Ms Mitchell to Ms Allen. Further, I accept that Ms Mitchell said to her and Ms West to “shut your mouths”.

[189] As I understand it, it is Ms Allen’s contention that perhaps a faulty toaster may have caused the fire at the Thozet Road site, and this was removed by Mr Rasmussen in the clean-up. It is not for the Commission to make any findings on the cause of the fire. I accept that the Respondent sought for and required its employees to provide all relevant information to Puma and to the investigators. It would be entirely appropriate for all employees to be afforded the opportunity to provide a report, as required, free of any influence of any other person, management or otherwise. On account of Ms Mitchell’s actions, I do not consider that occurred. There is no information, however, before the Commission that would satisfy me that there is any causal link between Ms Allen’s original reporting of the fire and her subsequent dismissal.

[190] I do accept that upon Ms Allen notifying the Respondent of her common law workers compensation claim, there was a shift in the relationship. Ms Mitchell said so during the hearing. I find that Mr Rasmussen did say to Ms Hall that he was proposing to dismiss an employee on workers compensation and “take his chances”. On the balance of probabilities, I find that he was referring to Ms Allen.

Conclusion

[191] I find that Mr Rasmussen set about to dismiss Ms Allen on 2 May 2019 by presenting to her all of the purported breaches. Even in spite of her statement that she would change her hair colour, he has relied on it as a reason for the dismissal. He gave no thought to her definitive statement that she would change it.

[192] Relevant to the sexual misconduct issue, Mr Rasmussen took Ms Allen’s conduct into account in deciding to dismiss her, however was too afraid to take on Ms Moore over her vulgar statement. The unfairness in dismissing Ms Allen over her statement while leaving Ms Moore as an untouchable employee assists in the consideration as to whether the dismissal was harsh, unjust and unreasonable.

[193] Even having regard to Ms Allen’s misconduct in thwarting the rostering system on occasions to pick up extra shifts by having preferential treatment does not move me from my conclusion that the dismissal was harsh, unjust and unreasonable. Mr Rasmussen did not provide any evidence to the Commission as to what, if any action he took against Ms Ketu while he remained her employer and up until late August 2019. I am satisfied that Ms Allen engaged in misconduct, but it was permitted by a manager senior to her and the misconduct was being undertaken by both women.

[194] Having regard to all of the considerations in s.387 of the Act, and despite there being two valid reasons for the dismissal, one known prior to the dismissal, and one following the dismissal, I find that the dismissal was harsh, unjust and unreasonable. Accordingly, I determine that Ms Allen’s dismissal was unfair.

Remedy

[195] Section 390 of the Act reads as follows:

[196] Ms Allen is a person from unfair dismissal for the Act’s purposes, and is a person who has been unfairly dismissed. Accordingly, I am empowered to exercise discretion as to whether she can be reinstated.

[197] Section 391 of the Act provides as follows:

Is reinstatement inappropriate?

[198] The Respondent no longer leases the Puma sites, and accordingly there is no work for Ms Allen to perform. I am satisfied that reinstatement is inappropriate.

[199] I now turn to consideration of compensation.

Compensation

[200] Section 392 of the Act provides:

Authorities

[201] The approach to the calculation of compensation is set out in a decision of a Full Bench of the Australian Industrial Relations Commission in Sprigg v Paul’s Licensed Festival Supermarket.9 That approach, with some refinement, has subsequently been endorsed and adopted by Full Benches of the Commission in Bowden v Ottrey Homes Cobram and District Retirement Villages inc T/A Ottrey;10 Jetstar Airways Pty Ltd v Neeteson-Lemkes11 and McCulloch v Calvary Health Care (McCulloch).12

[202] I have had regard to the above authorities, and I have considered the submission of each party.

The effect of the order on the viability of the Respondent

[203] No submissions were made on this issue by the Respondent. Mr Rasmussen has not submitted that any some of money would effect the viability of the Respondent and accordingly it is a neutral consideration.

The length of Ms Allen’s service

[204] Ms Allen had had approximately 5.5 years’ service. I have had regard to the decision of SDP Richards in Davidson v Griffiths Muir’s Pty Ltd [2010] FWA 4342. His Honour determined at [140]:

[205] I consider that Ms Allen’s service of approximately 5.5 years is a reasonable period of time.

The remuneration that Ms Allen would have received, or would have been likely to receive, if she had not been dismissed

[206] I have determined that Ms Allen would likely have continued to have been employed by the Respondent until the handover of the relevant service stations to Puma on or around 20 August 2019. Ms Allen has urged the Commission to take into consideration that if she had been employed by the Respondent, she would likely have transferred to Puma. This is a consideration I cannot have regard to in calculating the likely remuneration Ms Allen would have received with the Respondent if she had not been dismissed. There is no guarantee that Ms Allen would have been employed by Puma.

[207] The period from Ms Allen’s dismissal until approximately 20 August 2019 is a period of 15.5 weeks. The Form F3 nominated Ms Allen’s casual rate of pay as $27.55 per hour for work Monday to Friday, and $35.95 per hour for work on Saturdays, Sundays and public holidays.

[208] I do not consider that I presently have enough information before me as to the gross payments made to Ms Allen in the weeks and months prior to the dismissal to determine the average weekly wage paid to Ms Allen. It will be necessary for the Respondent to provide to the Commission the wages records for Ms Allen for March and April 2019, as these records will demonstrate the amount paid to Ms Allen following the Thozet Road fire and the shifts she worked at other sites. I note that Ms Allen had approximately two weeks off work during this period, and I am most interested in Ms Allen’s average weekly wage for the weeks where she did perform work.

The efforts of Ms Allen (if any) to mitigate the loss suffered because of the dismissal

[209] I am satisfied that Ms Allen took appropriate measures to mitigate the loss suffered because of the dismissal.

The amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation

[210] Ms Allen gave evidence that she did not receive any remuneration for any other work up until the date of the hearing. I accept such evidence.
The amount of any income reasonably likely to be so earned by Ms Allen during the period between the making of the order for compensation and the actual compensation
[211] This factor is not relevant in the circumstances of this matter.

Other relevant matters

[212] I do not consider that there are any other relevant matters to consider that I have not already addressed above.

Misconduct reduces amount

[213] Section 392(3) requires that if the Commission is satisfied that the misconduct of a person contributed to the employer’s decision to dismiss the person then the Commission must reduce the amount it would otherwise order by an appropriate amount on account of the misconduct.

[214] The section requires that consideration be given by the Commission, amongst other things, as to whether a person’s misconduct contributed to the decision to dismiss an employee even if the Commission has found that there was no valid reason for the person’s dismissal. However, if there was no valid reason for the dismissal that may be relevant to the Commission’s decision as to the appropriate amount by which the amount of compensation should be reduced.13 

[215] I find that Ms Allen engaged in misconduct in two respects: lying to Mr Rasmussen on 2 May 2019 when he discussed with her the conversation of 8 March 2019 with the younger worker, and when she orchestrated with Ms Ketu to be provided preferential treatment so as to be offered shifts ahead of other workers. I do not consider that other than these events, Ms Allen engaged in misconduct.

[216] Having regard to the material before me, I consider it appropriate to make a reduction of 30% to the amount of compensation I would otherwise order on account of Ms Allen’s misconduct.

Shock, distress etc. disregarded

[217] I confirm that any amount ordered does not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt caused to Ms Allen by the manner of the dismissal.

Compensation Cap

[218] I must reduce the amount of compensation to be ordered if it exceeds the lesser of the total amount of remuneration received by the applicant, or to which the applicant was entitled, for any period of employment with the employer during the 26 weeks immediately before the dismissal, or the high income threshold immediately prior to the dismissal.

[219] The high income threshold immediately prior to the dismissal was $145,400, and the amount for 26 weeks was $72,700. The amount of compensation the Commission will order does not exceed the compensation cap.

Payment by instalments

[220] No submissions were made on this consideration. I am prepared to hear further submissions from the parties as to whether payment by instalments should be made.

Order of compensation

[221] I have determined that the Respondent is to pay to Ms Allen the following amount of compensation less tax as required by law:

[222] The Respondent shall be directed to provide to my chambers information relevant to the weekly amount paid to Ms Allen during March and April 2019 to allow the correct calculation to be made. Once that amount is known, a subsequent decision and order will be made requiring the payment to be made within 14 days of that decision and order, subject to any decision I make as to instalments.

[223] In addition, the Respondent is to pay superannuation on the amount which will be ordered at the rate of 9.5% into Ms Allen’s superannuation fund.


COMMISSIONER

Appearances:

P J Allen, Applicant.

K Rasmussen, Company Director, for Respondent.

Hearing details:

1 October 2019, Rockhampton.

Final written submissions:

Applicant’s Final Submissions, 4 October 2019, and Response to Respondent’s Closing Submissions, 29 October 2019.

Respondent’s Closing Submissions, 28 October 2019.

Printed by authority of the Commonwealth Government Printer

<PR716687>

 1   Form F4 – Q1.1.

 2   (1995) 185 CLR 410, [465].

 3   Sayer v Melsteel [2011] FWAFB 7498 at [20].

 4   Ibid.

 5   Statutory Declaration of Paula Allen, 27 July 2019.

 6   Witness Statement of Emily Stanley, 4 April 2019

7 (2003) unreported, PR931440 at [30].

 8   Separation certificate noting Ms Allen’s date of birth.

9 (1998) 88 IR 21.

10 [2013] FWCFB 431.

11 [2014] FWCFB 8683.

12 [2015] FWCFB 2267.

13 Crawford v BHP Coal Pty Ltd [2017] FWC 154, [345] – [346]; Read v Gordon Square Child Care Centre Inc. [2013] FWCFB 762, [83].