Dettoni v Goldfields Women's Refuge [2016] FWC 3687 (21 June 2016) [2016] FWC 3687 FAIR WORK COMMISSION DECISION Fair Work Act 2009 s.394 —Unfair dismissal Giorgia Dettoni v Goldfields Women’s Refuge T/A Goldfields Women’s Refuge (U2016/1808) SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 21 JUNE 2016 Application for relief from unfair dismissal – Small Business Fair Dismissal Code – compliance not established. [1] On 19 April 2016 Ms Dettoni lodged an unfair dismissal application pursuant to s.394 of the Fair Work Act 2009 (the FW Act) in relation to the termination of her employment with the Goldfields Women’s Refuge Association Inc T/A Goldfields Women’s Refuge (the Refuge). This decision addresses an initial objection to the application, made on the basis that the Refuge was a small business at the time of the termination of Ms Dettoni’s employment and that this dismissal was consistent with the Small Business Fair Dismissal Code (the Code). [2] This issue was the subject of a determinative conference, conducted via a video link between Adelaide, Perth and Kalgoorlie on 9 June 2016. In this conference Ms Dettoni was represented by Ms Lloyd of the Australian Services Union (the ASU) and the Refuge, by Ms Fletcher, as agent, pursuant to an unopposed grant of permission made under s.596(2)(a). [3] There is no dispute that, at the time of the termination of Ms Dettoni’s employment, the Refuge was a small business. The FW Act establishes an approach specific to the consideration of dismissals by a small business in the following terms. [4] Section 385 states: “ 385 What is an unfair dismissal A person has been unfairly dismissed if the FWC is satisfied that: (a) the person has been dismissed; and (b) the dismissal was harsh, unjust or unreasonable; and (c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and (d) the dismissal was not a case of genuine redundancy. Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.” [5] The Code is established by s.386 and states: “ Small Business Fair Dismissal Code Commencement The Small Business Fair Dismissal Code comes into operation on 1 July 2009. 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 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 will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.” [6] Section 396 requires that consideration of the Code must be undertaken before the merits of the application are determined. I note that the application of the Code is the only disputed initial issue. [7] Ms Dettoni worked for the Refuge from April 2014 until the termination of her employment on 31 March 2016. On that day she was advised that she was summarily dismissed and was given a letter confirming her dismissal effective from that date. There is no dispute that, subsequent to this meeting, Ms Dettoni was given a further two weeks’ pay. Ms Dettoni was a Domestic Violence Outreach Worker. The parties differ over whether any issues associated with her employment were identified until Ms Walker was appointed as Manager of the Refuge in late February 2016. [8] The parties also disagree over the events which occurred following Ms Walker’s appointment as manager but do agree that Ms Dettoni and Ms Walker disagreed about a number of issues in the following weeks. I have considered these matters later in this decision. [9] Additionally, there is no dispute that Ms Dettoni was given written advice, on 30 March 2016 of the meeting on 31 March, which concluded with the termination of her employment. Ms Dettoni had a representative of the ASU present in this interview through a telephone link to Perth. In addition, Ms Fletcher, the Refuge Chairperson, Ms Lys, and Ms Walker were present at this meeting. [10] The Refuge asserts that the termination of Ms Dettoni's employment was a consequence of her inappropriate conduct and her behaviour towards Ms Walker. The Refuge asserts that this represented serious misconduct which warranted termination of employment on a summary basis, notwithstanding that it elected to pay Ms Dettoni a further two weeks’ pay. Further, the Refuge asserts that the manner of the termination of Ms Dettoni's employment was consistent with the Code as was evidenced by its completion of the Code Checklist. [11] Ms Dettoni's position is that she was neither disrespectful nor disobedient towards Ms Walker, that she was never warned during her employment and that her actions were consistent with her normal job duties. Ms Dettoni's position is that her behaviour could not be reasonably regarded as misconduct which justified termination of employment. [12] In order to consider the Code, I have considered the competing contentions of the parties about Ms Dettoni's behaviour. The starting point must be the Code itself. The preamble to the Code Checklist is significant in this respect. This states: “The Checklist is a tool to help small business employers comply with the Small Business Fair Dismissal Code. Completing the Checklist does not mean that the Code has been complied with, nor is it a requirement of the Code that the Checklist be completed. However, completing the Checklist will help small business employers assess and record their reasons for dismissing an employee. It is in the interests of the employer to complete this checklist at the time of dismissal and to keep it in case of a future unfair dismissal claim. Employers should read the Code before completing the Checklist, ensuring they understand their procedural obligations under the Code. Meeting these obligations is an important factor in complying with the Code.” [13] Consequently, the completion of that Checklist cannot, of itself establish that the Code has been complied with. [14] My consideration of the relevant circumstances is complicated by the absence of evidence from Ms Walker who, I was advised, left the Refuge some two weeks after the termination of Ms Dettoni’s employment. The Refuge elected not to call Ms Walker to give evidence in this matter but advised that, if the application proceeded to arbitration she may then be called. The evidence of both Ms Lys and Ms Fletcher confirmed that, whilst they were both involved in the decision to terminate Ms Dettoni’s employment, the basis for that termination was almost entirely founded upon advice provided to them by Ms Walker. As a consequence, the absence of any evidence from Ms Walker complicates the capacity for the Refuge to establish that it believed, on reasonable grounds, that Ms Dettoni’s conduct was sufficiently serious to justify immediate dismissal. Evidence from Ms Walker would have enabled consideration of contested facts on the basis of the direct participants in those events. Notwithstanding this, I have considered the application of the Code on the material before me. Whilst I have taken into account all of the evidence, I have summarised the evidence of the witnesses in the following terms. [15] Ms Dettoni advised that, until Ms Walker was appointed as manager, there were no issues associated with her employment. Ms Fletcher and Ms Lys disputed this and advised that they understood that Ms Dettoni had been given a warning about bullying behaviour on an earlier occasion, before Ms Walker commenced as the Refuge Manager. No documentation relative to this asserted warning was provided to me. The evidence before me does not permit a conclusion contrary to Ms Dettoni’s assertion that she had not been previously warned. [16] Ms Dettoni asserts that she was never advised by Ms Walker that her behaviour caused Ms Walker to feel bullied or harassed and that a general staff email confirming the Refuge bullying policy did not refer to her or to any particular incident. Ms Dettoni further advised that Ms Walker had informed her that the general staff email was particularly directed at another employee whose behaviour Ms Walker considered to be inappropriate. Whilst neither Ms Fletcher or Ms Lys were able to provide first hand evidence to refute Ms Dettoni’s position, Ms Lys expressed concern about Ms Dettoni’s behaviour, which she regarded as of a bullying nature, based on the advice provided to her by Ms Walker and her own observations of Ms Dettoni’s demeanour. As a consequence, I am not satisfied that the evidence before me establishes that Ms Dettoni engaged in bullying behaviour toward Ms Walker. I accept Ms Dettoni’s evidence that she disagreed with Ms Walker relative to a number of initiatives proposed by Ms Walker. These included expenditure approval processes and arrangements for the maintenance of client records. However, I am not satisfied that this has been established as bullying behaviour. Finally, there is no evidence that discounts Ms Dettoni’s evidence that Ms Walker advised her that the general staff email setting out the bullying policy was directed at another employee. [17] Ms Dettoni's evidence was that she complied with Ms Walker’s directions in relation to expenditure approval, risk assessments and client records. Further, that her client records were current. Ms Dettoni acknowledged that she disagreed with the practicality of various of these directions but asserted that she then worked cooperatively with Ms Walker to improve these systems. Ms Lys provided me with a File Note dated 22 March 2016 and apparently signed by Ms Walker. 1 This File Note effectively recorded disagreement between Ms Walker and Ms Dettoni over the recording of expenditure, the state of Ms Dettoni’s file records and her actions in arranging a discussion with the Department which contributed to the Refuge’s funding. This File Note concluded on the basis that a performance appraisal meeting had been scheduled for 24 March 2016. Ms Fletcher was not directly involved in these issues. Ms Lys’ evidence is also based on the advice provided to her by Ms Walker. Ms Lys advised that, in a discussion she had with Ms Walker on 29 March 2016, information provided to her indicated that Ms Dettoni was not following Ms Walker’s instructions. I accept that Ms Walker discussed her concerns about Ms Dettoni with Ms Lys but, absent evidence from Ms Walker to confirm the basis for those concerns, I have accepted Ms Dettoni’s direct evidence and am unable to characterise these events as either misconduct or as indicative of a reasonable basis for a belief of misconduct which could, without a warning process, give reasonable cause for dismissal, with or without notice. [18] Had it been the case that the Refuge assertion that Ms Dettoni acted inappropriately and outside of her authority by contacting and then meeting with a representative of its funding body about management issues was established, on the evidence before me, this could represent serious misconduct which, under the Code, could then represent a reasonable ground for summary dismissal. However, the evidence currently before me does not permit such a conclusion. [19] Ms Lys’ evidence was that: “17. An example of this was when Ms Dettoni invited a representative of the Funding Body to the GWR, without the knowledge of the Manager or the Board at the time. It was only when the visitor arrived at the GWR that the Manager was then invited into the meeting whereby Ms Dettoni commenced discussions regarding the management of the Refuge. At this time, representative of the Funding Body advised Ms Dettoni that the topic of discussion had nothing to do with the Funding Body. Following the meeting, Ms Dettoni escorted the representative to her office where she had a private meeting for at least one hour. It is not known what the discussion involved during this time;” 2 [20] I have noted that this is consistent with the File Note 3 which I accept was signed by Ms Walker. However, I do not have evidence before me that confirms that Ms Walker had a reasonable basis upon which to found her concerns in this respect. [21] Ms Dettoni’s evidence was that: “17. On or about the 17th March 2016 I arranged for our contract manager from DCP (Nikki ANGUS) to come to the refuge to speak to our new manager. Holding operational meetings with Nikki was part of my role and something I had been expected to do on an ongoing basis. I informed Ms. WALKER that Nikki was on her way for a meeting and she asked if she could sit in on it. I told her that was the intention and when Nikki arrived we all sat at the managers meeting table. Ms. WALKER did not know about this meeting in advance and did not tell me it was inappropriate or should be cancelled when she had the opportunity to do so had she felt this to be the case at the time. Ms. ANGUS told Ms. WALKER that we were providing the service they required and our funding was going to simply roll over come June 2016 for another year.” 4 [22] Absent direct evidence to contradict Ms Dettoni’s position in this respect, I am unable to regard her conduct as serious misconduct or to conclude that the Refuge had reasonable grounds for believing that Ms Dettoni’s behaviour in this respect was sufficiently serious to justify immediate dismissal. [23] A further factor relied upon by the Refuge relates to Ms Dettoni’s alleged refusal to participate in a performance review process. Ms Lys’ evidence is that, after Ms Walker advised her of the difficulties she was having in managing Ms Dettoni, she suggested that Ms Walker apply a performance appraisal process. 5 Whilst Ms Lys evidence confirms that Ms Walker was having difficulties in managing Ms Dettoni, the only direct evidence in this respect is that of Ms Dettoni who stated: “18. On Wednesday 23rd March 2016, Ms. WALKER called me into her office and said “I want to start Performance appraisals, and you are up first, tomorrow at 1pm”. 19. On Thursday 24 th March 2016, I sent through my apologies by email for not being able to attend the Performance Meeting as I was called to court for a client … I also pointed out my concerns for having the performance appraisals so soon after Ms. WALKER had joined the Refuge. I stated that 7 days notice should be given prior to performance meetings, which was the standard practice in all other places I had worked. (Ms. WALKER agreed with me that it seemed pretty standard to do this but there was nothing in writing in this workplace to state this). I advised her that we did not have an organization structure in place or our new Policies and Procedures yet as the Board were still having them drafted. I did not receive a reply from her but felt it was not an unreasonable request to ask that the performance meeting be rescheduled for a time when the above concerns had been addressed.” 6 [24] Again, absent direct evidence contrary to this, I have accepted Ms Dettoni’s position and cannot regard the performance management incident as a basis for summary dismissal. Conclusion - the Code [25] The evidence before me does not establish a reasonable basis upon which the Refuge could conclude that Ms Dettoni’s behaviour was sufficiently serious to justify immediate dismissal. Consequently, I am not satisfied that the requirements of the Code with respect to a summary dismissal have been established to me in this instance. Had direct evidence from Ms Walker been available to me I may have arrived at a different conclusion. [26] Notwithstanding that the Refuge asserts that the termination of Ms Dettoni’s employment occurred on a summary basis, and that this is consistent with the termination of employment letter of 31 March 2016, I have noted that Ms Dettoni was paid two weeks’ pay, presumably as a form of notice payment. Consequently, I have considered whether the termination of Ms Dettoni’s employment was consistent with the Code if it was characterised as another form of dismissal apart from summary dismissal. [27] It is clear from the evidence that Ms Dettoni and Ms Walker disagreed about a range of issues and that Ms Walker had concerns about Ms Dettoni’s behaviour at work. However, absent specific evidence from Ms Walker about those concerns, I am unable to conclude that they represented a valid reason for employment termination based on Ms Dettoni’s conduct or capacity to do her job. Further, there is nothing to indicate that Ms Dettoni was warned that her work performance or behaviour could result in the termination of her employment. [28] Consequently, irrespective of whether I regarded her dismissal as a summary dismissal or another form of dismissal, I am not satisfied that the Refuge has established that the termination of Ms Dettoni’s employment was consistent with the Code so as to require that the application be dismissed in accordance with s.385 of the FW Act. The objection made on this basis must be dismissed accordingly and an Order ( PR581328 ) to this effect will be issued. This conclusion should not be misunderstood. Had direct evidence from Ms Walker been provided to me, I may have reached a different conclusion. My conclusion in this regard cannot be construed as indicating that the termination of Ms Dettoni’s employment was unfair as this issue has not yet been considered. [29] Ms Dettoni’s application will be referred for conciliation. If it remains unresolved, it may require further consideration pursuant s.387 of the FW Act. Appearances : C Lloyd for the Applicant. S Fletcher for the Respondent. Hearing (Determinative Conference) details: 2016. Adelaide (and Video-link to Sydney and Kalgoorlie): May 9. 1 Exhibit R2 2 Exhibit R1, Statement of Ms Lys, paras 17 and 18 3 Exhibit R2 4 Exhibit A1, Statement of Ms Dettoni, para 17 5 Transcript, Audio Recording, 9 June 2016, 11.44 am 6 Exhibit A1, Statement of Ms Dettoni, paras 18 and 19 Printed by authority of the Commonwealth Government Printer <Price code C, PR581327>