Fair Work Act 2009

s.394 - Unfair dismissal

The Camberwell Grammar School T/A Camberwell Grammar School

[1] This is an application by Ms Alex Dai seeking an unfair dismissal remedy in relation to her dismissal by The Camberwell Grammar School.

[2] This matter has been subject to proceedings on 9, 10 and 25 October 2017. On 25 October I issued an ex tempore decision[1]. That decision is now reproduced below.

[3] Thank you. I intend to make a decision without hearing from the Applicant. And I can do that because I have the benefit of the entirety of the Respondent's case and of the Respondent's submissions. The first thing I will say is that I'm satisfied as to the requirements of section 396 of the Act. No one has addressed me on it but it's inherent in all of the material that the Applicant is a person who is protected from unfair dismissal.

[4] I am also satisfied that the application in this matter was filed within the required time. That is obvious from the date of dismissal and the date of the filing of the application. I am also satisfied that the Small Business Fair Dismissal Code does not apply to the employer, given that the employer is not a small business. I am also satisfied that the dismissal was not a case of genuine redundancy and, in particular, I am satisfied because neither the Applicant nor the Respondent have raised that as an issue.

[5] The fundamental weakness in the Respondent's position in this matter is in relation to valid reason for dismissal. The reason for dismissal was clearly set out in paragraph 3 of the letter dated 2 June.

[6] That paragraph reads - and I will quote the paragraph in full:

"By way of lawful reasonable direction, you had been required to participate in the workplace investigation process commenced by us immediately upon receiving your complaint, dated 24 April 2017. Camberwell Grammar School has now determined that you have failed or refused to comply without lawful reasonable direction and that you substantiate your allegations by fully participating in that investigation process. Your failure or refusal constitutes serious misconduct, the consequences of which are set out below."

[7] None of the other reasons advanced by Mr Lloyd for the dismissal of the Applicant are referred to in that letter. To the extent that the letter refers to failure or refusal to comply with a reasonable direction by fully participating in the investigation process, that must be understood in particular in having regard to paragraph 2 to the dates of 19 May and 2 June meetings. The evidence of Mr Hicks was very clear. His evidence at paragraph 35 of his witness statement says:

"One such meeting was arranged for Friday, 2 June 2017. Early on the morning of 2 June 2017, I received an email from Ms Dai informing me that she was unwell and would not attend the meeting set for that day."

[8] Mr Hicks refers to that email and it's attached in his evidence as attachment EH24. At paragraph 36 of his witness statement, Mr Hicks says:

"Ms Dai's employment was terminated by the school on 2 June 2017."

[9] Mr Lloyd's evidence in this matter is also very clear. At paragraph 32 of his witness statement, he describes the meeting which occurred on 31 May 2017 with the union. He says:

"To the best of my recollection, I recall that during the meeting I said to Mr Matson that if the issue did not settle, that the school required Dr Dai to attend the meeting set for Friday, 2 June 2017, and that non-attendance would result in the matter becoming a disciplinary matter as Dr Dai would have refused to attend the school to assist in the investigation of a matter that she herself had raised."

[10] At paragraph 34 of his witness statement, Mr Lloyd says:

"Dr Dai did not attend the meeting set for 2 June 2017. Early that morning she emailed the headmaster, who immediately forwarded the email to me, advising that she would not attend as she was ill and was to attend her doctor for a 9 am appointment."

[11] At paragraph 35 of his witness statement, Mr Lloyd says:

"As Dr Dai did not attend the meeting on 2 June 2017, it was resolved to terminate her employment as of that day."

[12] Mr Lloyd goes on in that paragraph to identify the letter of termination as being attachment CL39. He also identifies that:

"Later that day, a new WorkCover certificate of capacity, dated 2 June 2017, was received."

[13] The unchallenged evidence of the Applicant in this matter is identified at paragraphs 35 to 38 of her witness statement, exhibit A1. At paragraph 35, the Applicant properly concedes that she was instructed to attend a meeting on 2 June. Paragraphs 36 to 38 are relevant, and they read as follows. Paragraph 36 says:

"I contacted CGS on two email addresses [addresses redacted] at 7.03 on 2 June 2017 to notify them that I could not attend the 10 am meeting."

[15] And she attaches at QD18 the email. At paragraph 38, the Applicant says:

"I went to my doctor, Dr Simon Wong, at 9 am on 2 June 2017 and saw my doctor. I provided an email about this to my union and various other parties, including Paul Hicks at CGS. The further certificate of capacity was issued on 2 June 2017."

[16] At paragraph 39, the Applicant says:

"I then received the dismissal letter for not attending the meeting."

[17] In circumstances where both Mr Hicks and Mr Lloyd concede that the Applicant had contacted them and advised them of her incapacity to attend the meeting on 2 June, then it is absolutely clear that the conduct of the Applicant in not attending the meeting on 2 June could not constitute serious misconduct as it was not conduct of the Applicant that was incompatible with a continuation of the employment relationship, and it was not conduct that could give rise to being a valid reason for dismissal.

[18] The concept of a valid reason has been clearly explained in the keynote decision of Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333. Northrop J in that decision described a valid reason as one that has to be sound, defensible or well-founded, and he went on to make it clear that a reason which is capricious, fanciful, spiteful or prejudiced cannot be a valid reason for dismissal. In the present matter, the reason for dismissal as relied upon by the Respondent is not sound, it is certainly not defensible, and it is not well-founded. Very little of the material advanced by the Respondent so far in the proceeding has dealt with the specific reason for dismissal as relied upon by the Respondent.

[19] To the extent that most of the Respondent's material relies upon conduct of the Applicant over a period of time at the school, none of that conduct was specifically relied upon in the dismissal letter. In the context of the present matter, the dismissal of the Applicant for the reason of not attending a meeting when the Applicant was unwell and could not attend is not only not well-founded, not defensible and not sound, but I would describe it as being egregious conduct by the Respondent, and I use the word "egregious" in full knowledge of its dictionary definition of "remarkably or extraordinarily bad".

s.387(a) whether there was a valid reason for the dismissal related to the person's capacity or conduct

[20] I find in this matter that there was no valid reason for the dismissal of the Applicant, and that is because the reason advanced, non-attendance at a meeting, could not in the circumstances of this matter ever have created a valid reason for dismissal.

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

[21] I note the submissions made in relation to section 387(b), and in particular that Mr Lloyd identifies that the union was clearly told at the meeting on 27 May what might be the consequences for non-attendance at the meeting on 2 June.

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

[22] I also note the submissions made by Mr Lloyd in relation to section 387(c) in that the Applicant was given every opportunity to attend the meeting on 2 June, with interpreters and with union present.

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

[23] I have considered the submissions made by Mr Lloyd in relation to section 387(d) where he identifies that, again, the Respondent went to significant effort to ensure that the meeting for 2 June had both the interpreter and participation of the union, and I accept that the meeting settled for 2 June was to ensure that the Applicant had the ability to have her support persons and union present.

s.387(e) if the dismissal related to unsatisfactory performance by the person--whether the person had been warned about that unsatisfactory performance before the dismissal

[24] I have taken in to account the submissions made by Mr Lloyd in relation to section 387(e), in that he relies upon the two letters issued in December 2014 and October 2015 as having put the Applicant on notice about her conduct. However, those letters don't relate to the misconduct which is the basis of the dismissal, but even then the Applicant acknowledges that she was under very clear notice that she had a requirement to attend the meeting on 2 June and I accept that the union was clearly advised of the consequences that might flow from non-attendance at the meeting on 2 June.

s.387(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

s.387(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

[25] Paragraphs (f) and (g) of section 387 are always relevant in an unfair dismissal matter. In this matter it is reasonably clear that the processes adopted broadly for the Respondent to deal with the Applicant reflect the fact that the Respondent has good internal HR advice and that the employer is an employer of considerable size. In taking into account the matters raised by paragraphs (f) and (g), I would conclude that they do not advance the Applicant's case as to unfairness, but equally the factors required to be taken into account under paragraph (f) and (g) do not assist the Respondent in its contentions that the dismissal was fair.

s.387(h) any other matters that the FWC considers relevant

[26] I do not consider that there are any matters under section 387(h) that I must take into account. In all the circumstances of this matter and having regard to all the criteria in section 387, I am satisfied that the dismissal of the Applicant was harsh, it was unjust and it was unreasonable. It is harsh because of its impact upon the Applicant in circumstances where she had a legitimate reason for not attending the meeting on 2 June.

[27] It is unjust because when the Applicant had a clear reason for not attending the meeting on 2 June, to have characterised her non-attendance as serious misconduct was clearly not in accordance with the facts and it imposed a completely unjust outcome on the Applicant. The dismissal was also unreasonable because it was not a reasonable response to the Applicant's inability to attend the meeting on 2 June.

[28] My decision deals only with the issue of section 387 and that is, is the dismissal fair or unfair. I now am required to deal with the issue of remedy and that is a case in itself.

[29] It is clear to me that the Respondent has put its evidence forward, but I need now to deal with that in a more fulsome way. Very particularly, none of the evidence of the Respondent has been the subject of challenge, but I am trying at this stage to manage the process to work out what, if any, remedy is appropriate. In the context of this matter, I am prepared to proceed on a preliminary view that a remedy should be granted to the Applicant.

[30] I will hear from the parties as to whether or not that preliminary view is accepted or rejected or opposed. If both parties are of the view that that preliminary view is correct, then I will deal with the issue as to whether reinstatement is appropriate or inappropriate and then whether or not compensation is appropriate or inappropriate, but I will not deal with those matters today.

[31]

I am going to conclude the hearing of today's matter at this point and we need now to work out how to deal with the issues around remedy. Ms Alex, I have decided very clearly that your dismissal is unfair. What we need to now deal with is should I give you any remedy and, if I do give you a remedy, should the remedy be reinstatement or should the remedy be compensation.

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