//
[2017] FWC 4630
General information, not legal advice.
Fair Work Commission
2017-09-07
Original judgment source is linked above.
s.394 - Unfair dismissal
Tassal Group Limited T/A Tassal Operations Pty Ltd
Unfair Dismissal - valid reason for termination Application for an unfair dismissal remedy.
[1] The Applicant has made an application for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (the Act). The Applicant was employed by the Respondent as a level 1 processing employee which involved processing fish including scaling, slicing, weighing and packing the fish. She was employed on 1 August 2012 and her employment was terminated for misconduct on 1 May 2017.
[2] For the reasons which follow I find that there was a valid reason for the termination. However I find that the termination was harsh. Notwithstanding my finding that the termination was harsh I have determined that reinstatement is inappropriate and have awarded the Applicant compensation in lieu of reinstatement.
[3] At the hearing the Applicant was represented by Mr Flanagan of the Australian Workers Union. Mr Collinson and Ms Masters, legal practitioners, were granted permission to represent the Respondent.
[4] Leave was granted noting that the Applicant did not oppose the application for permission to appear. The Respondent had made a formal application for permission in accordance with Form F1 the day before the hearing and set out 3 bases upon which permission ought to be granted. Having regard to those matters and the non-opposition from the Applicant to the application I granted permission for Mr Collinson and Ms Masters to appear.
[5] At the hearing the Applicant gave evidence in her own behalf and called Mr Carl Smith a close friend of the Applicants. The Respondent called Mr Rodney Burles a consultant to the Respondent in relation to employment and industrial relations matters. It also called Mr Duane Baker, Senior Manager of the Respondents plant at which the Applicant worked. All witnesses except Mr Smith provided witness statements which were tendered as their evidence in chief. The witnesses were cross examined.
[6] The conduct of the Applicant which led to her dismissal, save for the issue of whether alcohol was the reason that the Applicant chose not to attend work, is not in dispute. On 25 April 2017 the Applicant telephoned the Respondent at 4.56 p.m. and left a message as follows:
"Hi Michelle, its Avril one of your most loved pains in the arse. Um its ANZAC day, my birthday, and I admit I have over indulged so I'm taking into account one of the golden rules be fit for work and I'm not going to be fit for work so I won't be there. But um love ya, catch ya on the flip side"
[7] The massage was heard the next morning. It prompted Mr Baker to be concerned that the Applicant was using a golden safety rule to excuse or justify her behaviour in consuming alcohol to an extent that she anticipated she would be unable to work the next day. He felt this conduct was likely to amount to misconduct.
[8] Most of what transpired between the phone message and the dismissal occurred via email. As such it is not difficult to make finding of the events leading to the dismissal. The Respondent has relied on the conduct of the Applicant as being a breach of the Code of Conduct amounting to an unacceptable risk to the Respondent and its employees and being conduct inconsistent with the continuation of the Applicants employment. It is this which is said to amount to a valid reason for the dismissal. I must determine whether, on the evidence there was a valid reason for termination. It will then be necessary to consider the other matters contained in s 387 of the Act.
[9] After hearing the phone message Mr Baker consulted with Mr Burles and thereafter a letter dated 26 April 2017 was given to the Applicant when she arrived for work on 27 April 2017. The letter contained the allegation of misconduct. The letter also advised the Applicant that she was stood down with pay and was required to respond to the allegations by noon on 28 April 2017. She was told of the potential outcome, namely disciplinary action up to termination.
[10] The Allegation was that the Applicant had breached the Respondents Code of Conduct by not being responsible for her actions and accountable for its consequences because:
"You had deliberately made a decision to consume alcohol to the extent that you would not be fit for work on 26 April 2017 when you were required to attend and be in a fit state to carry out your duties safely."
[11] Within a short period of being given the 26 April letter the Applicant responded by email on 27 April at 7.06 a.m. The full response was as follows:
"This is my response to the allegation against me.
Firstly, I did not deliberately make the decision to consume alcohol to the point were (sic) I would be unfit to attend work the following day.
It was by BIRTHDAY, and friends dropped by unannounced. I had my official birthday party on the Monday night and wasn't expecting visitors on Tuesday, however, visitors I got. As the afternoon went on I realised it was going to be a long night and I believe I acted responsibly and respectfully by contacting management to let them know I wouldn't be fit for work.
Would it have been wiser for mw to call at 6 am on the 26th and plead illness? I think if I had done that then I wouldn't be writing this letter now, but it wouldn't have been the honest thing to do in my opinion.
It was not my intention to deliberately take the day off, the events were not planned and not expected, and again, I feel that contacting management on the 25th was the right and responsible thing to do."
[12] Mr Baker did not consider the response was a denial of the allegation, did not show any contrition and did not accept any wrongdoing by relying on the golden rule to excuse her behaviour in not ensuring she was fit to attend work.
[13] On 27 April 2017 at 3.47 p.m. the Applicant wrote a further email as follows:
"Dear Duane, I have waited all day for a return phone call from Seonna in regards to whether I am required to attend a meeting tomorrow to discuss the allegations directed towards me. The letter stated that I must respond in writing by 12.00 noon Friday 28 April 2017, and I have done that via email to you, however the letter did not state if I was required to be in attendance on the Friday. I rang Seonna and she assured me she would call me back with the relevant information I needed. She hasn't done that.
I would also like to add that I feel managments (sic) constant quest in turning 'MOLEHILLS INTO MOUNTAINS' is detrimental to our company's integrity and our code of conduct. The "GO IN FOR THE KILL" mentality is rather disturbing and completely against Tassal's moral code in my opinion. Management is also responsible for their staff's wellbeing, although it seems staff are ignored in favour of impressing higher management. I did nothing untoward to deserve that letter, and the fact that I drove all the way from Waterloo, only to be handed a letter and told to leave was totally unprofessional and unforgivable on managements (sic) part.
I would be more than pleased to discuss this matter further with Mark Ryan if given the opportunity. I respect you, and I await your personal response."
[14] Mr Baker regarded that second email as further demonstrating a lack of acknowledgement or acceptance of any wrongdoing and trivialised her conduct. Accordingly he spoke to Mr Burles. In consequence of that discussion Mr Baker decided to issue a preliminary decision that the Applicants employment would be terminated. He asked Mr Burles to draft an appropriate letter which Mr Burles did. The letter was subsequently sent to the Applicant.
[15] The letter which was dated 28 April 2017 again set out the allegation and recited the responses from the Applicant. The letter continued:
"We also do not consider your response set out above acts to mitigate your actions but rather alarmingly demonstrates to us that you take no accountability for your actions but rather look to place blame onto Tassal's management. It is clear from your responses that at 4.46pm on 25 April 2017 you made a decision that you would continue long into the night drinking rather than make sure you are fit for work to fulfil your duties the next day. How you can state you did nothing untoward or that it was not a deliberate decision to take 26 April 2017 off is astonishing and your reason of because it's my birthday is either a reasonable conclusion or acts to mitigate your actions".
[16] The allegation was found to be substantiated. The letter stated further:
"Considering the substantiated allegations detailed in the investigation findings above, it is our view that you have breached the Code of Conduct Policy (CCP) by not being responsible for your actions and accountable for the consequences by making a decision to deliberately consume alcohol long into the might and therefore would not be fit for work to attend as required on 26 April 2017. We have also taken into account that you have previously received a written warning for similar conduct.
Given the above, it is our view that your conduct presents an unacceptable risk to Tassal and its employees and that your conduct has been inconsistent with the continuation of your employment. On that basis it is our preliminary decision that your employment should be terminated."
[17] The Applicant was then given an opportunity to respond to the preliminary decision.
[18] While this was occurring the Applicant attended the workplace on 28 April 2017 without first obtaining permission to do so. She cleared out her locker and returned her key. As a result the Respondent enquired of the Applicant by email whether the Applicant had resigned from her employment. The Applicant responded by email on 28 April 2017 at 5.45 p.m. that "I cleaned out my locker because it was a disgrace, long overdue, mould was forming in the corners. I handed in the key because I was likely to lose it, but have no fear, I will be at work Monday morning bright eyed and bushy tailed. kiss kiss!"
[19] On 29 April 2017 the Applicant responded to the preliminary decision. She said:
"I have not resigned from my position at Tassal. But allow me to retort to the wording of your response via email. Firstly, I made no mention of over indulging in alcohol, that was Tassal's assumption, and frankly, it's none of your business. You felt that it was astonishing for me to use my birthday as an excuse. I find it astonishing that you would make such a statement. You also stated that my response alarmingly demonstrates that I take no accountability for my actions, and look to place the blame with Tassal management. I feel I have nothing to be accountable for, and my statement about making molehills into mountains was completely warranted and accurate, after all that's what this is all about, isn't it. I feel I fulfilled my duty of care by contracting management to let them know I wouldn't be at work the following day, why? Again, it's none of your business. This is clearly a case of victimisation on your part. Is this my punishment for my vocal outburst during the bullying meeting? And as for the written warning due my hideous telephone message, well I can only put that down to emotional distress after learning that my father was dying, and yes I was drunk at that time. We are all only human and that includes Tassal workers.
Something else that I feel needs to be addressed is the fact that both myself and Sonya Young were summoned to the office for a drug test and alcohol test at 6am only days after the meeting where I was given a written warning. These test (sic) are supposed to be random, it didn't seem random to Sonya and I, a coincidence perhaps? highly (sic) doubtful, just another form of victimisation. Tassal has blown this whole matter out of proportion, almost to the point where one can only shake one's head in disbelief.
On Monday morning I intend to touch base with the fair work commission and the union, I am prepared to fight to keep my job!"
[20] On 1 May 2017 the Applicant sent a further email to Mr Baker. The email stated that the Applicant's feelings were hurt by the preliminary finding that the Applicant was a risk to Tassal and its employees and that she was well liked in the workplace. It stated that Tassal was determined to deem the Applicant as a bad apple and that Tassal was attempting to portray the Applicant as an alcoholic with no self-control. The Applicant denied the suggestions and indicated that she would fight the matter on the grounds of "defamation, victimisation, and intimidating hostility".
[21] In 1 May 2017 Mr Baker met with Mr Burles. They discussed the Applicants responses and made a final decision to terminate the Applicants employment on the following grounds:
(a) Ms Chapman had been recently given a written warning for a breach of the CCP;
(b) It was determined that Ms Chapman had breached the CCP again within only a few months of receiving a written warning for breaching the CCP;
(c) Ms Chapman did not comply with reasonable instruction of not attending site without permission to do so;
(d) Ms Chapman's statement that what occurred the previous day that meant she couldn't fulfil her role as a processing attendant was 'none of my business' was disrespectful and further demonstrated a lack of accountability on Ms Chapman's part;
(e) Mr Baker considered the attempt to use the golden safety rules to excuse her (sic) justify her conduct showed a lack of insight and understanding of Tassal's safety systems and also that Ms Chapman does not take them seriously;
(f) Ms Chapman did not show any contrition and looked to place blame on others and therefore other disciplinary action would not have improved her conduct into the future; and
(g) Ms Chapman's emails to Mr Baker during the process demonstrated there was a breakdown in the relationship and one that he could not see being repaired.
[22] Mr Baker asked Mr Burles to draft a termination letter which Mr Baker reviewed and sent to the Applicant. The letter is essentially a recitation of the events outlined above, and in particular setting out what the Respondent regarded as the significant aspects of the Applicants responses. The findings were:
"We do not consider your responses set out above acts in mitigation of your actions but rather alarmingly reiterate (sic) to us that you take no responsibility for your actions but rather look to place the blame ion Tassal's management. It is clear from your responses that workplace relationships necessary for a productive, harmonious and ongoing working relationship have irretrievably broken down and you have provided no further evidence to explain why at 4.46 pm on 25 April 2017 you made a decision that you would continue ling into the night drinking rather than make sure you are (sic) fit for work to fulfil your duties the next day. Contrary to your response that message you left on the voice mail clearly states that you had over indulged and given the responses it was reasonable for Tassal to assume it was alcohol."
Considering the seriousness of your conduct, it is our decision that your employment will be terminated with effect from the close of business Monday 1 May 2017. It is important that we clearly indicate that we do not consider there to be any alternative other than to terminate your employment. Tassal cannot, as a responsible employer, tolerate your actions or risk further repeats of your actions".
[23] Before passing onto the matters I am required to consider under s 387 of the Act I will make some observations in particular about that Applicants evidence. It was obvious during the hearing that there was no real challenge to the credit of Mr Baker or Mr Burles. Rather the cross examination tested the process and the validity of the findings made. As such I need not make any findings in relation to the credibility of those witnesses. In any event, it is for me to determine whether the evidence led constitutes a valid reason for dismissal. What Mr Burles or Mr Baker thought about that is really not to the point.
[24] It is apparent that there is a difference in the manner in which the Applicant chose to respond to the allegations (as set out above) and the case she put to me at the hearing.
[25] In her responses to Tassal the Applicant denies deliberately drinking alcohol to the point where she would be unfit for work[i]. The Respondent regarded this is a denial of deliberately putting herself into that position, but that the denial was not a denial of drinking. Mr Baker said "I just took it as she did not deliberately do it. There are other influences that made her make the decision to consume alcohol where she would be unfit to work the following day"[ii].
[26] It was noted during the hearing that what the Applicant may have done was recited the words of the allegation and denied them such that the denial was a denial to drinking alcohol. Mr Baker appears not to have considered that possibility. When it was put to him that the denial was a direct denial of the allegation his response was "Whichever way you want to interpret it, I guess".[iii] However in my view Mr Baker's interpretation of the response is open and ultimately I agree (for the reasons I set out later in this decision) that the denial was a denial of deliberately putting herself in the position, and not a denial of drinking alcohol.
[27] The Applicant in her further response said that she made no mention of over indulging in alcohol and that was an assumption made by the Respondent. She said "frankly, it's none of your business".[iv]
[28] It is noteworthy that the Applicant did not specifically deny consuming alcohol. It seems that she took umbrage at Tassal seeking to find out what she was up to on her days off. Her denials refer on more than one occasion to it not being Tassal's business.
[29] What is clear however is that the Applicant is denying deliberately consuming alcohol to such an extent to render her unfit to work the next day and that, as was put to me by Mr Collinson, there was a triggering event which led to the incapacity for work - visitors arriving unexpectedly which was likely to lead to a long night.
[30] Read as a whole the Applicants first response[v] is to the effect that on the day of her birthday (the day before she was due at work) friends dropped around unexpectedly and as the afternoon wore on it became apparent that it would be a late night and that she realised she would not be fit for work the next day. In that context the denial of not deliberately making the decision to consume alcohol to the point that she would not be fit for work is more easily read as Mr Baker did: the decision was not deliberate.
[31] This conclusion of fortified by the fact that the message was left at 4.56 p.m. so that if the Applicant had not been drinking there was an element of prediction as to how the evening would play out. Had the Applicant been drinking because of the triggering event of the unexpected arrival of friends, leaving the message when she did becomes much more explicable. There would have been no occasion to predict that it would be a late night and that as a result the Applicant would be unfit for work, rather the time had arrived when the Applicant knew that she would not be fit for work the next day..
[32] Indeed the use of the phrase "I have overindulged" supports the proposition that at the time of the call the Applicant knew she would not be fit for work the next day because of what she had done by that time.
[33] I also note that if, as the first response suggests the Applicant was predicting that it would be a long night, it is unclear why the Applicant did nothing to ensure she would be fit for work the next day. Indeed the Applicant agreed under cross examination that at the time she made the phone call she was in a position to go to bed early and be fit for work the next day.[vi] That answer shows that her prediction that it would be a late night did not transpire and that she could have been fit for work the next day.
[34] This concession was made in the context of the evidence of what happened on the evening of 26 April 2017.
[35] The impression one gets from the first response of the circumstances of the evening of 26 April 2017 are that people dropped by unexpectedly and that the Applicant was engaging with them during the course of the afternoon and it was that engagement which would continue into a long night and cause the incapacity for work. It makes no sense to me that a person at 4.46 p.m., some 13 hours before having to work, and before being involved in any activities which might result in impairment for work would decide to predict that she will be unfit to work the next day.
[36] The evidence led at the hearing was however was significantly different. It transpired that the Applicants sister dropped by to collect dishes and only stayed a little while.[vii] During the afternoon between 2 p.m. and 3 p.m. two friends dropped in.[viii] The friends however stayed with the Applicants partner in his garage area and the Applicant only went out there from the house a few times and did not stay[ix]. The friends left about 9.00 p.m.[x].
[37] That evidence therefore is not of the Applicant taking part in any activities which would suggest there was going to be a long night which was involving her. There may have been the prospect of a long night but that was occurring in the garage area and was not involving the Applicant. I note that the evidence is that the Applicant has slept from about 3.00 a.m. until about 11.30 a.m. or noon on 25 April 2017. If she is to be believed she slept for about 8 hours that morning and did not drink during the rest of the day and the guests left at about 9.00 p.m. It seems that she could have gone to bed around then and had further sleep. Against this asserted background the prediction of incapacity due to fatigue makes little sense.
[38] That evidence casts significant doubt on the Applicant assertion that she was not drinking at all. Rather it supports the inference to be drawn from the telephone message that the Applicant has over indulged in alcohol and by 4.46 p.m. knew she would be unable to work. Otherwise, as I have said, the predicted incapacity makes no sense in the absence of events causing incapacity for work at the time of the phone call.
[39] Before me the Applicants case was that she was not drinking at all, was ill and hung over and was fatigued. It is said that it was the fatigue which led to the phone call because the Applicant would not be able to fulfil her role at work safely the next day.
[40] The relevant part of the Applicants written submission is[xi]:
"On Tuesday afternoon 25th April 2017 a number of close family and friends attended the applicant's residence uninvited. It became clear to the applicant that the visitors were likely to stay for some time. At that stage the applicant was already fatigued from the late finishing of her birthday party."
[41] The Applicant then telephoned the Respondent to advise she would not be in the following day.[xii]
[42] It is apparent that the evidence does not support the submission. Only one family member attended and then only for a short time. Only two friends attended but they spent very little time with the Applicant.
[43] Of significance however is that the issue of fatigue as being the catalyst for the phone call is raised for the first time in the Applicants witness statement filed with the commission and the submissions of the Applicant.
[44] Indeed the Application itself[xiii] notes the Applicant was following the Respondents drug and alcohol policy and was attempting to be responsible and considerate to the needs of the business. Mr Flanagan sought to down play the significance of the application however noted he would have been provided with a basic understanding of the matter.[xiv] I give the application weight. It summarises the basic understanding of the Applicants representatives as to the situation shortly after the dismissal. It is consistent with the telephone message of having overindulged. It is not consistent with a late assertion of fatigue.
[45] In any event I fail to understand why the Applicant did not simply tell the Respondent she was fatigued and was still ill from a very big night on 24 April 2017 if that were the case. Alternatively, if she was for example embarrassed by the fact she was so hung over she could simply have advised she was ill and would not be in for work the next day. The words used (and the tone of the message) are consistent with what was said: the applicant had in fact overindulged on 25 April 2017 and would be unfit for work.
[46] Somewhat tellingly the following exchange took place when the Applicant was being cross examined:
"And nor do you say that your weren't drinking alcohol at the time when you made the phone call, in that response [the first response to the initial allegation]?---- I worded it as, firstly, I did not deliberately make the decision to consume alcohol, right?
Yes?--- Because their statement said I deliberately decided to consume alcohol"[xv]
[47] In my view this exchange demonstrates that the concern that Applicant had was the suggestion the consumption was deliberate. That is consistent with the balance of the response of not expecting visitors, but visitors I got; not my intention to deliberately take the day off; events not planned and not expected. It is consistent with Mr Collinson's characterisation of the events being the trigger to the consumption of alcohol.
[48] I do not accept that the assertion that fatigue was the reason behind the phone call on 25 April 2017. If it had been surely she would have said so.
[49] I now refer to the evidence of Mr Smith, who was called in place of the Applicants sister. He gave evidence that the Applicant was not with him and his brother for most of the afternoon and evening. He also gave evidence that so far as he was aware the Applicant was not drinking. I do not find that Mr Smith's evidence is to the effect that the Applicant was not drinking. It is only that, on the few short occasions he saw the Applicant he did not see her drink.
Conclusions in respect to the Applicants evidence
[50] I find that the Applicant, as a result of consuming alcohol, rang her employer at 4.46 p.m. on 25 April 2017 to let it know that she would not be at work the next day. I do not accept that she had not been drinking on 25 April and that the reason she called work was because she was fatigued.
[51] My reasons taken from the above in summary (which are not to be taken as an exhaustive list) are:
(a) The telephone message was "its ANZAC day, my birthday, and I have to admit I have overindulged". The message speaks of the present time. It does not refer to fatigue. I have also listened to the message. Whilst of little weight, the affect during the message was very different to that displayed by the Applicant whist in the witness box.
(b) The explanation of the triggering event of the arrival of visitors is not borne out by the evidence led at the hearing;
(c) The explanation of fatigue smacks of recent invention;
(d) The Applicants application sought to invoke the drug and alcohol policy as the reason for unavailability for work.
(e) The exchange the Applicant has with counsel for the Respondent referred to at paragraph X above.
[52] The Applicant submits that there was no valid reason for the termination of employment because the conduct was out of work conduct and that there was no valid reason for the dismissal related to the Applicants capacity or conduct.
[53] The Applicant also submits that the Applicant had not previously been warned for similar conduct. She also submits that the application of the company policies relating to discipline was not properly followed and that by proceeding to termination without proper consideration of alternative less severe sanctions the company's response was disproportionate to the seriousness of the conduct.
[54] The Applicant further submits that she did not have a proper opportunity to respond to two issues which the Respondent took into account - namely the previous warning and the issue of attending the workplace while stood down.
[55] The Respondent submits that there was a valid reason for the termination, that she had a reasonable opportunity to respond and that termination was not disproportionate to the conduct of the Applicant.
[56] The Respondent also submits that the Applicants responses showed a lack of contrition and that the Respondent had lost trust and confidence in the Applicants ability to meet the employer's reasonable expectations as to her conduct in the future.
Was there a valid reason for the dismissal related to the Applicants capacity or conduct?
[57] I conclude there was a valid reason for the dismissal. The Applicant chose to over indulge in alcohol on the day before she was due to work to such an extent as to be unable to fulfil her obligations to attend for work the next day. The evidence suggests that had the Applicant had any real intention of being available for work she could have gone to bed early on 25 April 2017 given that there were only two people at her house and they were not socialising with the Applicant. The valid reason, as described by Mr Collinson in his closing was the refusal (or failure) to attend for work without reasonable justification.[xvi] That submission was based on the fact that the Applicant had consumed alcohol to such an extent as to be unfit for work.
[58] Mr Collinson also put as an alternative that the Applicant made a rational decision to attend work without any basis for not attending.[xvii] This submission was made against the circumstance that I might find the Applicant had not consumed alcohol on 25 April 2017 and that there was therefore no triggering event.
[59] I accept that either characterisation would give rise to a valid reason for termination.
[60] The Applicant submitted that the reason was not valid because it was irrelevant out of hours conduct. I accept the submissions of the Respondent that the conduct, while being out of hours conduct at home has a sufficient link with the employment relationship. The Applicant in her submissions noted that conduct incompatible with the employee's duty to the employer may amount to out of hours conduct enabling an employer to validly terminate the employment of an employee.[xviii] The Respondent in its submissions (relying on authority) noted that an employee has a general duty to take reasonable steps to be fit to perform their duties.[xix]
[61] The case is not dissimilar to the situation of an employee "taking a sicky" without being ill. Here the Applicant "took a sicky" in circumstances where she had voluntarily embarked upon a course of conduct that resulted in incapacity for work. The situation is perhaps made worse by the Applicants acknowledgement that she could have gone to bed early and been fit for work the next day.
[62] In light of this finding I am not required to decide whether the Respondents Code of Conduct policy applied, notwithstanding the Respondent relied on it as the obligation to be fit for work. I accept that there is a common law duty arising out of the employment relationship which casts the same obligation on an employee.
[63] I note that the Respondent also sought to rely on the Applicant attending at the workplace when she cleaned out her locker as being a reason for termination in the termination letter and in its written submissions, as amounting to failing to comply with a reasonable direction. However Mr Collinson did not seek to rely on it as a valid reason[xx]. In the circumstances that was quite proper.
[64] The Applicant was notified of the reason relied on in the Allegation Letter of 26 April 2017 and in the Preliminary Decision Letter of 28 April 2017. I do not understand the Applicant to submit otherwise.
Whether the Applicant was given an opportunity to respond to any reason related to her capacity or conduct
[65] The Applicant submits that she was not given an opportunity to respond to the failure to follow the reasonable direction not to attend the workplace. As that ground has been withdrawn I need not consider it. However I would have found that the Applicant was not given an opportunity to respond to the allegation.
[66] The Applicant also submits she was not given an opportunity to respond to the use of the previous warning she was given in coming to the decision to terminate her employment. However I note that the preliminary decision letter contained the following: "we have also taken into account that you have previously received a written warning for similar conduct".[xxi]
[67] Additionally the Applicant responded to the previous warning issue as follows: "as for the written warning due my (sic) hideous telephone message, well I can only put that down to emotional distress after learning that my father was dying, and yes I was drunk at the time. We are only human and that includes Tassal workers."[xxii][x]
[68] Accordingly I find that the Applicant was informed of the two reasons which were relied on to come to the decision to terminate her employment.
Any unreasonable refusal by the employer to allow the Applicant to have a support person present to assist in any discussions relating to dismissal.
[69] There were no meetings in relation to the dismissal. However the Applicant gave evidence that she expected a meeting.[xxiii] She felt an employee would not be dismissed without a meeting.[xxiv]
[70] However in this case nothing turns on this. It is not clear why the Applicant thought there would be a meeting. There was contained within the preliminary decision letter the following: "if, without reasonable excuse, you choose not to attend and/or fail to provide a written response I will proceed with a determination". While that may give rise to some confusion the letter specified that a written response was required. As such a reasonable reading of the sentence was that the alternative of a written response was engaged.
[71] Other than that phrase there was nothing to suggest a meeting would be held. The Applicant had, and did respond to the relevant correspondence.
[72] Accordingly the issue raised by this consideration specified in s 387 of the Act is not engaged.
Whether the Applicant had been warned about unsatisfactory performance.
[73] Whilst the previous warning relied on may more readily be construed as being about conduct, it was relevant to the decision to terminate and should be considered under this criterion.
[74] The Respondent asserts that the previous warning was for similar conduct. The conduct which gave rise to the warning was:
"That [the Applicant] breached Tassal's Code of Conduct Policy (CPP) when [she] left a message on 27 December 2016 at 8.33 p.m on the Production Telephone; 'Hello, it's Avril. Um....I won't be at work today. I am non compos mentis, which means I'm fuckin' shitfaced. I just found out my brother's got advanced lung cancer and I'm a bit upset about it all yeah. Sorry"
[75] In so far as the conduct is ringing the employer when affected by alcohol the conduct is similar. However in my view the circumstances behind the first warning are very different. The Applicant had found out that a close relative was gravely ill. She had recourse to alcohol to an extent where she could not work. She telephoned the employer and used inappropriate language. I understand it was the inappropriate language which constituted the breach of the CCP.
[76] That circumstance is different to this, where the evil in the phone message is not the fact it was left, nor the language used but rather what it conveyed. The breaches of the CCP (if that is what the latter is) are different. The first breach was for the content of the message (the language) not for taking the day off.
[77] Interestingly Mr Baker thought the significance of the previous warning was that there had been a breach of the CCP[xxv]. In my view that is not its significance, and to take the warning into account as a strike (which the Respondent no doubt did was harsh). Its significance was in my view limited.
[78] Mr Collinson submitted its significance was not as a valid reason, but rather it demonstrates an absence of positive features relevant to harshness militating against dismissal. I would agree that, had the breach been of a similar character it would have had the effect suggested by Mr Collinson. However in my opinion it was really of little weight.
[79] I regard the case as being one where the Respondent should have proceeded on the basis that there was no conduct which would be relevant to the issues arising in this case. Whilst the Applicant had what may be described as a prior matter it was not relevant to the decision as to what sanction to impose.
[80] Whilst like minds may differ, had the Respondent proceeded on that basis I do not think termination would have been appropriate. Accordingly I find that the Respondent misused the significance of the prior warning in coming to the conclusion that dismissal was appropriate. That is, I find the dismissal was harsh.
[81] In this case we have a misguided approach to the employer to the effect that the Applicant has overindulged (in alcohol) to such an extent as to result in her being incapacitated for work in circumstances (unlike the previous instance) where there was no extenuating circumstance which might constitute a justification for that conduct. That constitutes the valid reason. However because this is the first time the Applicant has conducted herself in that manner in 5 years of working for the Respondent to terminate her employment was harsh. I agree with the Applicant that another sanction such as performance management or a further, perhaps even final, warning was appropriate.
[82] I am also alive to the fact that had the Applicant notified the Respondent on the morning of 26 April 2017 of illness and incapacity for work then termination of employment would have been unlikely.
[83] These matters are not relevant to this case.
[84] The Respondent in its written submission raised the consideration whether the decision to terminate the Applicants employment was disproportionate to the conduct. For the reasons I have set out above I am of the view that the termination was disproportionate.
[85] That is not to say however that the matters the Respondent raises are not significant to the question of remedy to which I will come presently.
[86] The Respondent also relied on what appears to have been a dishonest explanation for attending the workplace contrary to the instruction not to do so.
[87] The Respondent points out that the Applicant said in her response regarding attending the workplace that she cleaned out her locker because it was a disgrace and mouldy. Mr Collinson submitted that the Applicant had given different reasons for attending the workplace. The first reason was to clean out her locker. The second, appearing in her witness statement, was to get prescriptions. One might think the latter is a much more valid reason for attending the workplace.
[88] However I note that the explanation of cleaning out the locker was not given in response to a question why the Applicant was at the workplace. Rather it was given in response to a request to confirm that she had resigned. Her response was about what she was doing, not why she was there.
[89] The only time the Applicant appears to have said why she attended was in her witness statement. I therefore am unable to find the reason the Applicant went on the workplace was not to get her prescriptions a she asserts.
[91] The Act provides that reinstatement is the primary remedy unless I am satisfied that it is inappropriate. I am satisfied that reinstatement is inappropriate.
[92] The emails from the Applicant which I have set out earlier in my decision disclose a somewhat combative approach to the Respondent. For example, the "Molehill out of mountains" email. Also concerning is the failure of the Applicant not to understand that placing herself in the position no to be able to work when required was inappropriate.
[93] The Applicant has said that she did nothing wrong. She has said she did nothing untoward,[xxvi] and that she has nothing to be accountable for.[xxvii] The impression I have from her evidence as a whole is that she saw nothing wrong with putting herself in a condition not to be able to work the next day. She does not, in my opinion understand the significance of her conduct. She is also somewhat antagonistic to her employer. This is evidenced by her failure to consider she may have been in the wrong and to apologise for not being able to work in circumstances where her inability to work was self-induced by the excessive consumption of alcohol.
[94] Of considerable significance however is my finding that her explanation of fatigue is recent invention. She has chosen to resile from her position that the consumption of alcohol was unexpected, and therefore not a conscious decision not to go to work, to an assertion that she consumed no alcohol and was fatigued.
[95] The Respondent has submitted that here is a loss of trust and confidence by her failure to accept any wrongdoing. The employer asserts it the Applicants lack of awareness, acceptance and commitment to meeting the Respondents expectations demonstrates that the trust and confidence required for an employment relationship has been destroyed.
[96] I agree.
[97] I also take into account that I have little in the way of evidence of the Applicants personal circumstances. I note that the Applicant is responsible for food and household bills. However I have no idea how much they are. I also note that the Applicant is of an age and lives in an area where it may be difficult to obtain alternative employment. However I have no evidence of any attempts the Applicant has made to find alternative work, or what employment opportunities there may be in the area. I also take account of the fact that the Applicant had employed for approximately 5 years, which while not a short time is not particularly long.
[98] In lieu of reinstatement I propose to order that the Respondent pay the Applicant compensation for having terminated her employment in circumstances which I have found to be harsh.
[99] I must do so having regard to the matters set out in s 392(2) of the Act.
[100] The Applicant did not lead any evidence relevant to my consideration of compensation. The Respondent provided me with a table which suggests the award should be between $4,052.00 and $7,287.00. I note that the Applicant did not seek to make any submissions in respect to compensation notwithstanding that the Respondent had.
[101] The Applicants weekly income according to the table is $844.00 per week. The maximum compensation to which the Applicant is entitled is therefore $21,658.00[xxviii] although I note it is 18 weeks since termination so the maximum amount the Applicant could have earned is $15,192.00. Accordingly given the size of Tassal s 392(2) (a) of the Act is not relevant.
[102] The Applicant had been employed for 5 years. I have no evidence to suggest that the Applicants employment was otherwise in jeopardy such that her employment would have been terminated between the date of termination and the date of this decision.
[103] I have no evidence of any attempts the Applicant made to get work during that time, and nor do I have any evidence of any earnings made by the Applicant during that time.
[104] I note however that the Respondents table does not include any discount for earnings other than for 5 weeks payment in lieu of notice.
[105] Taking account of the payment of notice the maximum to which the Applicant is entitled is $10,972.00. The Respondent submits there should be a deduction of 30 - 40% for contributory conduct and misbehaviour.
[106] I have regard to the comments of Commissioner Booth in Mahoney v Bechtel Constructions[xxix] especially at paragraph 22.
[107] In this case the Applicant was guilty of placing herself voluntarily in a position where she was unable to work by reason if the consumption of alcohol. This was in circumstances where she could have gone to bed early to sleep and put herself in a position to work. She also was less than candid with the Respondent regarding her consumption of alcohol.
[108] I have found there was a valid reason for her dismissal but that it was harsh. Her conduct in a material way led to her own downfall. However the Respondent misused the prior warning as a reason to proceed to termination rather than a less severe sanction. Found that was the reason for the dismissal being harsh.
[109] The reduction for misconduct is an exercise of an unfettered discretion. I take all circumstances into account. Doing the best I can I reduce the amount by 25%. As a result I award the Applicant $8229.00 gross by way of compensation.
[i] Exhibit R2 - annexure D to affidavit of Duane Baker; MFI p. 77
[iv] Exhibit R2 - annexure I to affidavit of Duane Baker
[xii] The Applicants submissions refer to a discussion the Applicant had with her sister. The Applicant had filed a witness statement of her sister, however at the hearing I was told the sister was unavailable (although not why she was unavailable) and so her evidence was not sought o to be tendered. As a result I exclude any reference to the sister's evidence in my consideration of the case.
Printed by authority of the Commonwealth Government Printer
Avril Chapman
Tassal Group Limited T/A Tassal Operations Pty Ltd [2017] FWC 4630