Unfair dismissal; an analysis

Here is an extract from a recent Fair Work Commission case which perfectly illustrates how the Commission goes about determining whether a termination of employment is relevantly unfair for the purposes of the Fair Work Act.

“CONSIDERATION

Protection from unfair dismissal

[106] There is no jurisdictional barrier to this unfair dismissal application being considered and determined by the Commission. It was uncontroversial that Ms Jeffs was a person protected from unfair dismissal and was dismissed within the meaning of s 386 of the Act.

Was the dismissal harsh, unjust or unreasonable?

[107] The conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd; Frew v Australian Airlines Ltd by McHugh and Gummow JJ 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. 209

[108] When determining if a dismissal was unfair, the Commission must take into account whether there was a valid reason for dismissal relating to the employee’s capacity or conduct. 210

[109] Where the reason for termination of employment relates to an employee’s capacity or conduct, it is not the Commission’s function to stand in the shoes of the employer and determine whether or not the decision made by the employer was a decision that would be made by the Commission. It is for the Commission to assess whether the employer had a valid reason connected with the employee’s capacity or conduct. 211

[110] The reasons considered are the employer’s ‘reason(s)’. 212 The Full Bench in B, C, and D v Australia Postal Corporation T/as Australia Post213 (Australian Postal Corporation) stated:

… In a misconduct case, the Commission is concerned with whether the misconduct in fact occurred, not with whether the employer has reasonable grounds to believe that it occurred (e.g. Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201, Sherman v Peabody Coal Ltd (1998) 88 IR 408; Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1).

Subject to that, as indicated by Northrop J in Selvachandran, “valid reason” is assessed from the perspective of the employer and by reference to the acts or omissions that constitute the alleged misconduct on which the employer relied, considered in isolation from the broader context in which they occurred. It is the reason of the employer, assessed from the perspective of the employer, that must be a “valid reason” where “valid” has its ordinary meaning of “sound, defensible or well founded”. As Northrop J noted, the requirement for a valid reason “should not impose a severe barrier to the right of an employer to dismiss an employee”.

A failure to comply with a lawful and reasonable policy is a breach of the fundamental term of the contract of employment that obliges employees to comply with the lawful and reasonable directions of the employer. In this way, a substantial and wilful breach of a policy will often, if not usually, constitute a “valid reason” for dismissal. 214

[111] Therefore, the question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the matter before it. As referred to in Australian Postal Corporation, the test is not whether the employer believed, on reasonable grounds and after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination. 215

[112] It is the case that the provisions must be applied in a practical, common sense way to ensure that the employer and employee are treated fairly. 216

Matters to consider

[113] Section 387 requires that the Commission consider certain criteria when determining whether an applicant’s dismissal was ‘harsh, unjust or unreasonable’. They include:

(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.

[114] Regarding ss 387(b)-(d), I am satisfied on the evidence that Ms Jeffs was:

(a) notified of the reasons relied upon by QGS for the termination of her employment, and was given the opportunity to respond to allegations made against her during the investigations into her conduct;

(b) was given the opportunity to respond to the reason for her proposed dismissal; and

(c) was not unreasonably refused by QGS to have a support person present to assist at any discussions relating to dismissal.

Procedural flaws

[115] It has been observed previously in both Mr Ian Law v Groote Eylandt Mining Company Pty Ltd T/A GEMCO (Mr Ian Law), 217 and Rogers v Millennium Inorganic Chemicals Limited & Anor218 that there is no obligation on an employer to conduct a perfect workplace investigation. What is required is for the employer to conduct an investigation into the alleged misconduct which establishes the allegations on the balance of probabilities. As observed in Mr Ian Law, and employer is not required to investigate to the standard that would be expected of a police investigation. The strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove.219

A conflict of interest, the coffee shop incident and the meetings with Mr Yeo

[116] Evidence was given that a month or two after the coffee shop incident, Mr Yeo sent an email to Ms Jeffs, advising her of an informal meeting to be held on 14 March 2018. 220 Ms Jeffs gave evidence she emailed both Mr Hardy and Ms Jeffs informing them that because of the formal investigations regarding the coffee shop incident, Mr Yeo overseeing the meeting amounted to a conflict of interest. Mr Hardy responded to Ms Jeffs’ concern noting that, while there was an outstanding grievance, this did not prevent Mr Yeo from having an informal discussion with her about his expectations of her in his role as her manager.

[117] Ms Jeffs still considered that Mr Yeo overseeing the meeting on 14 March 2019, and the subsequent meetings scheduled to address the same topic of the four additional performance issues, constituted a conflict of interest. Her reasoning for arriving at this conclusion was – at the time of the meetings, preliminary enquiries were being conducted to ascertain whether Mr Yeo had engaged in harassing and intimidating Ms Jeffs.

[118] In some circumstances it would be appropriate and preferable practice not to involve a supervisor or manager in a performance discussion, when that same manager or supervisor faces a complaint made by the relevant employee. Where both the leader and employee have lodged complaints about each other, a question may arise regarding the efficacy of such a meeting, if not anything else. However, context is important.

[119] In this matter, Mr Hardy exercised managerial prerogative to direct that Mr Yeo would conduct the meetings, notwithstanding the complaint raised by Ms Jeffs concerning Mr Yeo’s interaction with her on 23 January 2018. In the circumstances of this matter, I do not consider that the direction for Mr Yeo to conduct the meetings, and the direction for Ms Jeffs to attend (and participate) was unjust or unreasonable when the context is considered.

[120] Mr Hardy was in receipt of both Mr Yeo’s account of what had occurred and Ms Jeffs’. The commonality between the accounts was that, not long after Ms Jeffs commenced work, she was in a coffee shop. While Ms Jeffs refutes that she was required to attend to training, it was nevertheless the case that she had not reported she was unwell to a supervisor, and she was aware of the direction that had been read out to her on 6 December 2017 that ‘she was at all times to notify her Leading Hand if she was delayed to an assigned task and provide the reasons for any delay’. 221 Having had the opportunity to read the accounts of Mr Yeo and Ms Jeffs, Mr Hardy was cognisant of the subject matter of the incident and was well positioned to assess whether Mr Yeo’s involvement in conducting an informal performance meeting with Ms Jeffs would compromise the integrity of the meeting.

[121] While Ms Jeffs had referred to Mr Yeo’s body language as ‘indicating intent’, and that his ‘verbal was rude, short and not unlike something you would say to anyone, you were set on intimidating or harassing them publically [sic]’, I would simply make the observation that in circumstances where an employee commences shift and then contrary to direction, takes themselves off to have a break, while justifying the action based on a hay fever attack, they should expect to be spoken to in a ‘short’ manner when permission has not be sought to attend to their compromised state, or notification given to their supervisor that notwithstanding they have only just commenced work, they are taking a break. This does not constitute harassment or intimidation; it is merely a manifestation of a justified frustration regarding an employee’s insubordination – in the circumstances of this matter.

[122] Further, the subject matter of the proposed discussion, while traversing Ms Jeffs’ four additional performance issues, did not warrant Mr Yeo being replaced by another manager to conduct the meeting. In the XPT Case, 222 it was expressed that, unless an employer’s managerial prerogative was expressly prevented by law, the role of the Commission was ‘to examine all the facts and not to interfere with the right of an employer to manage [its] own business unless [it] is seeking from the employees something which is unjust or unreasonable’.

[123] I consider while it may have been unproblematic for QGS to accommodate Ms Jeffs’ request for an alternative manager to conduct the meetings, it was not obliged to do so and its decision not to, was not unjust or unreasonable. However, if I am wrong regarding this conclusion, it is nevertheless the case that there remained a valid reason for Ms Jeffs’ dismissal absent the formal written warning and reliance upon Ms Jeffs’ misconduct in those March 2018 meetings.

Confidentiality

[124] Ms Jeffs was evidently concerned about what she perceived to be a breach of confidentiality committed by Mr Dragicevic during his investigation into the several allegations she was facing. Her upset manifested in her assertion to Mr Hardy that the investigation was ‘null and void’ because of Mr Dragicevic’s breach of confidentiality during the investigation process. 223

[125] On 6 February 2019, Ms Jeffs had responded to the letter of allegation 224 by sending a text message to the Manager’s pool mobile phone.225 She had, after all, received the letter of allegation by this means, having notified Mr Dragicevic that she did not have access to her QGS email and that she would not provide an alternative email address. Ms Jeffs stated that she had not been informed that the phone to which she was providing her response to the letter of allegations was a pool phone and that the first time she became aware that it was a ‘publicly used work phone’ was when someone other than Mr Dragicevic answered it.226

[126] Mr Hardy responded to Ms Jeffs’ concern about the breach of confidentiality and her assertions that because of such breach, it rendered Mr Dragicevic’s investigation null and void. In the letter of termination of 13 June 2019, Mr Hardy set out that he enquired into the alleged breach of confidentiality and had found: 227

  • It is clear that you texted your response to the mobile phone (Operational Mobile) at 4.56pm on 6 February 2019.
  • Mr Dragicevic has now confirmed that he did not have the Operational Mobile at that time, but rather retrieved your written response from the Operational Mobile on or around 11.49am on 7 February 2019, following your call to the Operational Mobile on 7 February 2019. This is inconsistent with what Mr Dragicevic has previously advised. However, he has been upfront in these enquiries in correcting his error after he has checked his movements on those days.
  • At 11.49am on 7 February 2019, Mr Dragicevic immediately forwarded your response from the Operational Mobile to his work email, and then Mr Dragicevic recalls deleting your response in its entirety from the Operational Mobile.
  • Three Operations Managers had possession of the Operational Mobile between 4.56pm on 6 February 2019 and 11.49am on 7 February 2019.
  • Enquiries have been made with all three of these managers. As Operations Managers they are regularly in receipt of personal information regarding employees (such as contact from sick employees) and are bound by Qantas Standards of Conduct Policy. I am satisfied that the three Operations Managers spoken to realised that the message was not relevant to them and have not spoken to anyone (directly or indirectly) about you, the workplace investigation, any documents relating to the investigation or any texts shared between yourself and Mr Dragicevic.
  • I have received mixed information about the ability to access the original letter of allegation on the Operational Mobile. But Mr Dragicevic has consistently asserted that he deleted this from the Operational Mobile.
  • I am further satisfied that there is no evidence on the Operational Mobile, or on any work phone used by the Operations Mangers, of any record of the Letter of Allegations, your written response and/or texts exchanged between you.

[127] The abovementioned content accorded with the evidence provided at hearing, by Mr Hardy and Mr Dragicevic. Understandably, Ms Jeffs was upset that both the letter of allegations and her response to the same, had been shared with the three Managers who were not investigating the issues at hand. Arguably, the subject matter of the allegations and the response, were sensitive. Sensitive in the sense that Ms Jeffs had been accused of wrong-doing, and for some this in and of itself may have evoked a variety of emotions – whether, for example, shame, anger, sadness, or distress. In these circumstances it would be entirely reasonable for an employee to be aggrieved when her or his information was shared with persons other than the investigative team or management responsible for making decisions regarding the alleged misconduct.

[128] There was, however, no evidence that the inadvertent sharing of such information detracted from an objective process of investigation or from pursuing a considered course to permit Ms Jeffs to put forward her version of events – on several occasions. The employees with whom the information was inadvertently disclosed held senior positions within QGS. Mr Hardy observed that as Operations Managers they were regularly in receipt of personal information regarding employees (such as contact from sick employees) and were bound by the ‘Qantas Standards of Conduct Policy.’

[129] In the circumstances, I have concluded that the inadvertent sharing of the letter of allegation and Ms Jeffs’ response, did not impact upon the integrity of the investigation, and would not have led to a different outcome to that which was actioned. The investigation was not rendered null and void by Mr Dragicevic’s oversight.

The other factors to take into account under s 387

[130] As to s 387(e), I am satisfied that Ms Jeffs’ termination of employment involved misconduct, not unsatisfactory performance. Therefore, it is not in dispute in this case.

[131] In relation to s 387(f), QGS is a national organisation with dedicated human resource expertise. I do not consider that its size would be likely to impact on the procedures followed in effecting Ms Jeffs’ termination of employment.

[132] As to s 387(g) of the Act, Qantas employed human resources advisors at the time of Ms Jeffs’ dismissal, so this consideration is not relevant.

[133] Attention, therefore, initially turns to s 387(a) and whether there was a valid reason for the dismissal related to Ms Jeffs’ conduct.

Whether there was a valid reason for the dismissal – s 387(a) of the Act

[134] To determine a valid reason relating to conduct, the Commission must determine, whether, on the balance of probabilities the conduct allegedly engaged in by the employee actually occurred. 228

[135] In Parmalat Food Products Pty Ltd v Wililo, 229 (Parmalat) the Full Bench held:

The existence of a valid reason is a very important consideration in any unfair dismissal case. The absence of a valid reason will almost invariably render the termination unfair. The finding of a valid reason is a very important consideration in establishing the fairness of a termination. Having found a valid reason for termination amounting to serious misconduct and compliance with statutory requirements for procedural fairness it would only be if significant mitigating factors are present that a conclusion of harshness is open. 230

[136] Ms Jeffs was provided with payment in lieu of notice on her dismissal. It was not concluded in her letter of termination that she had engaged in serious misconduct. However, as the Full Bench in Parmalat held, the finding of a valid reason is a very important consideration in establishing the fairness of a termination.

[137] On 6 December 2017, Mr Hardy issued Ms Jeffs with a letter of direction and read out its contents. There can be no misapprehension that a line in the sand had been drawn of what was required of Ms Jeffs, regarding behavioural expectations.

[138] Despite this direction, on 23 January 2018, the coffee shop incident occurred. While Mr Hardy did not issue Ms Jeffs with a written warning regarding her conduct in the coffee shop, he did take the opportunity in the outcome letter of 12 June 2018, to counsel her again regarding her behaviour, raising salient points that had been reiterated previously. I do not intend to repeat the entire contents of the letter here, but the pertinent part can be seen at paragraph [44] of this decision, and I draw specific attention to the bullet points commencing ‘It is not for you to decide which tasks you should and should not complete based on your assessment of the urgency…,’ and so on.

[139] Before proceeding to discuss the Guidelines, it’s timely to traverse further the coffee shop incident, notwithstanding that Mr Hardy decided not to issue a warning regarding Ms Jeffs’ conduct on the 23 January 2018. The evidence given at hearing, which was not contested, was that Ms Jeffs signed-in on that day at around 10.54am. In the response meeting with Ms Fitzgerald, Ms Jeffs confirmed she went to Hudson’s Coffee Shop, but did this after performing certain functions such as printing off her FIDS and tasks, going to the bus stop and collecting her eye drops from her locker. However, in the findings letter of 12 June 2018, Ms Fitzgerald notes that one of the witness recalls Ms Jeffs joined a group of operators at around 11.00am. Ms White informed Mr Yeo at approximately 11.50am that Ms Jeffs had not presented for training.

[140] At no time did Ms Jeffs notify a leader that she was ill. At no time did a leader authorise her to take the break that she took in the coffee shop. Having only signed on at 10.54am, it is evident that soon after, she was on a coffee break.

[141] Attached to the outcome letter of 12 June 2018 were the Guidelines. The Guidelines set out the expectations for employees on restricted duties or workers’ compensation. There was no evidence to show that Ms Jeffs did not receive the outcomes letter of 12 June 2018 or the Guidelines. Ms Jeffs stated that she had not seen the Guidelines, and did not sign a ‘read and sign’ related to them. Based on the totality of the evidence, I am unpersuaded that Ms Jeffs had not received them. Further, a version of the Guidelines was accessible on the QGS intranet page.

[142] Arising from the coffee shop incident were the subsequent complaints of Mr Yeo and Ms Jeffs, regarding the conduct of each other. On or around this same time, other issues had arisen regarding Ms Jeffs’ performance, namely the ‘four additional performance issues’.

[143] Ms Jeffs’ conduct in the meetings regarding the additional performance issues in March 2018, ultimately resulted in her receiving a formal written warning on 12 June 2018. That conduct constituted a wilful refusal to verbally communicate in the meetings about the performance issues. Instead, Ms Jeffs slid across the table to Mr Yeo a letter addressing the performance issues. While it is true that Ms Jeffs responded in writing to the issues concerning her performance, the way she behaved in the meetings was disrespectful and was non-compliant with written instructions given to her. 231 In this respect, I observe that on 16 March 2018 and, thereafter, 22 March 2018 Mr Yeo wrote to Ms Jeffs.232 The letter provided, amongst other matters, ‘[A]t the second informal meeting, we will discuss the four agenda items’.233

[144] While Ms Jeffs may not have agreed with Mr Hardy’s decision to have Mr Yeo facilitate the informal meetings; Ms Jeffs made that abundantly clear when she emailed Mr Hardy about that very matter. Thereafter, her subsequent conduct and refusal to discuss issues in the meeting was unprofessional, unnecessary and resulted in her failing to follow a lawful and reasonable instruction.

[145] The evidence shows that on 30 October 2018, Ms Jeffs presented for work and undertook a process where she determined the plan for her day. I have found that her conduct in this respect did not comply with the Guidelines, and the directions that had been issued in the fourth scheduled meeting with Mr Yeo (the meeting held to discuss the four additional performance issues). In the fourth scheduled meeting, Mr Yeo’s evidence was that he instructed Ms Jeffs to get her tasks on a day to day basis from the shift GSC or shift manager when she attended for work.

[146] Later in the day on 30 October 2019, there was a discussion between Mr Davies, Mr Visser and Ms Jeffs, where Ms Jeffs walked away from a conversation with her supervisor, Mr Visser, stating words to the effect ‘we need to sort it out as this isn’t working’. Ms Jeffs’ comment arose after she had been tasked, and not placed on the static line of the planner. Returning 5 minutes later, the evidence shows that Ms Jeffs questioned Mr Visser on whether he had even read her RTWP. A brief dialogue ensued whereby Mr Visser stated that Ms Jeffs said to the effect ‘you’re changing my return to work plan and it is stressing me out, I’m going home’. Ms Jeffs stated that she simply said to everyone in the office ‘Let me know when you have read and sorted out my RTW plan, and I will return then. I then, in full view of all the office staff, clocked out, and left the workplace’. 234

[147] Ms Jeffs did not appear to comprehend that departing the workplace in the manner she did, was not only inappropriate, and disrespectful to Mr Visser, but her departure appeared to be based on an unacceptable reason. While Mr Visser noted that Ms Jeffs referred to being ‘stressed out’, Ms Jeffs in addition stated that she said she would return when Mr Visser had read and sorted out her RTWP. The circumstances of the case indicate that on 30 October there was an issue regarding Ms Jeffs being tasked contrary to RTWP No.5, but Mr Visser had addressed this with the GSC. A departure from work by an employee, in circumstances where her return is conditional on a supervisor having undertaken some specified action, does not appear to constitute personal leave at that time, but rather an unauthorised absence.

[148] If it was the case that Ms Jeffs was unwell from stress, and this was the reason for her departure, then the Personal/Carer’s Leave Policy (Personal Leave Policy), outlines the steps to take. Relevantly, cl 5.2 and cl 7.5 respectively provide:

5.2 Employees are responsible for:

(a) their own attendance;

(b) notifying their supervisor or Manager directly of unplanned absences and expected duration;

(c) providing adequate notice of planned leave absences and seeking and obtaining approval from their Manager or supervisor if required; and

(d) providing all certificates and documentation required to support their leave application.

7.5 Advising of absences

Employees are required to inform their Manager (or the Manager’s nominated delegate) of their inability to attend work as soon as practical, which should generally be prior to when the Employee is due to commence duties on the day of absence, or otherwise in accordance with the relevant Award/Agreement. 235

[149] While the Personal Leave Policy does not describe the manner in which an employee is to notify their supervisor of their unplanned absence or otherwise inform their manager, the SOC Policy clearly sets out that employees must treat other staff with trust, dignity, respect, fairness and equity. Ms Jeffs demonstrated no respect in this instance.

[150] Ms Jeffs did not attend work for her rostered shifts between the period of 5 December 2018 and 21 December 2018. I have concluded that this was an unauthorised absence and that Ms Jeffs was aware that the absence was unauthorised. On 4 December 2018, Ms Jeffs attended a medical case conference and RTWP No.6 was signed. While Ms Jeffs admits that RTWP No.6 included her signature, Ms Jeffs states that she did not sign it on 4 December 2018, and she would never have agreed to it – she considered it a step backward. The argument lacks reasoning, after all RTWP No.6 saw Ms Jeffs now working in accordance with her rostered shift start times rather than uniformly at the same time each day (not a step backward). I prefer the evidence of Mr Visser over that of Ms Jeffs, for reasons already stated, and I observe that Mr Visser’s account was consistent.

[151] RTWP No. 6 stated that during the dates 5 December 2018 to 15 December 2018, Ms Jeffs was to work four days a week, four hours a day (being the first four hours of rostered shifts). For the period 16 December 2018 to 22 December 2018, the hours increased to five a day and the following week six hours a day. Start times of course depended on the time the shift was rostered to commence. Ms Jeffs appears to have been asserting that she was unaware of the rosters set out in RTWP No.6.

[152] Apart from the RTWP, Mr Visser’s evidence was that webroster was the only means by which QGS disseminates rosters for Fleet Presentation employees, and that all employees know they are required to check it. The direct evidence showed that Ms Jeffs had logged onto webroster on 7 December 2018 at 2:18pm and thereafter logged out at 2:40pm. Having logged into webroster it is open to infer that Ms Jeffs was aware of her rosters. However, as it is, I am persuaded by Mr Visser’s evidence regarding RTWP No.6, and Ms Jeffs’ acceptance of it.

[153] Based on the evidence, and on the balance of probabilities, I have found that Ms Jeffs was aware that she was required to work during the period of 5 December 2018 until 22 December 2018 on the rosters set out in the RTWP No.6, and that she chose not to do so.

[154] I am satisfied that on 20 December 2019, Mr Yeo issued a direction for Ms Jeffs to contact him. He did so by acceptable and appropriate means. Ms Jeffs did not contact Mr Yeo, and therefore failed to comply with a lawful and reasonable direction.

[155] On 14 January 2019 at around 2:22pm, Ms Jeffs submitted an annual leave application for an extra weeks’ leave. Ms Jeffs conceded at hearing that she assumed that the leave application had been approved but did not check that was the case. Although unaware of whether the leave request had been approved, Ms Jeffs preceded to take the extra weeks’ leave. The direct evidence shows that Ms Jeffs’ account that she was in Canada when making the leave request was inaccurate. The staff travel record showed Ms Jeffs’ travel arrangements, including her arrival back into Sydney on 14 January 2019. Ms Jeffs presented no evidence to rebut the direct evidence led by QGS in this respect. I have concluded that Ms Jeffs’ absence from work on 16, 17, 20, 21 and 22 January 2019 was an unauthorised absence.

[156] Further, Ms Jeffs’ conduct on the telephone to Mr Visser on 18 January 2019 was unacceptable and contrary to the SOC Policy in respect to demonstrating respect. I have considered the evidence provided by both Mr Visser and Ms Jeffs regarding the telephone call, and have also considered Ms Jeffs’ subsequent email to Mr Visser later that day. Mr Visser’s account rings true.

[157] I am satisfied that Mr Visser has provided an accurate account of how Ms Jeffs addressed him regarding the dispute over the start-time that day, the 23 January 2019.

[158] I have found that Ms Jeffs’ misconduct was manifestly serious and in clear breach of: directions given on 6 December 2017 and 12 June 2018; the Guidelines; the SOC Policy and RTWP No.6. In arriving at this conclusion, I have in addition considered her misconduct that warranted the issuance of a formal written warning on 16 April 2018. However, it is important to state that, irrespective of the conduct that gave rise to that formal written warning, I am firmly of the view that Ms Jeffs’ misconduct nevertheless was so serious, it unquestionably gave rise to a valid reason for the termination of her employment.

Any other matters considered relevant – s 387(h) of the Act

Differential treatment

[159] In her evidence, Ms Jeffs referred to having received treatment that was inconsistent to that accorded to two other employees. The matter was not agitated to any extent at hearing. However, what is evident is that Ms Jeffs considered that the acts of the two other employees were more egregious than any conduct she had engaged in, or had been alleged to have engaged in, and yet they were provided with alternative avenues by which to end their employment (instead of termination).

[160] In Darvell v Australian Postal Corporation, 236 the Full Bench made the following comments in relation to the question of differential treatment between employees (references omitted):

[21] The issue of differential treatment of employees in respect of termination of employment was considered by Vice President Lawler in Sexton v Pacific National (ACT) Pty Ltd. In Sexton’s case, his Honour said:

“[33] It is settled that the differential treatment of comparable cases can be a relevant matter under s.170CG(3)(e) to consider in determining whether a termination has been harsh, unjust or unreasonable …

[36] In my opinion the Commission should approach with caution claims of differential treatment in other cases advanced as a basis for supporting a finding that a termination was harsh, unjust or unreasonable within the meaning of s.170CE(1) or in determining whether there has been a ‘fair go all round’ within the meaning of s.170CA(2). In particular, it is important that the Commission be satisfied that cases which are advanced as comparable cases in which there was no termination are in truth properly comparable: the Commission must ensure that it is comparing ‘apples with apples’. There must be sufficient evidence of the circumstances of the allegedly comparable cases to enable a proper comparison to be made.”

[22] Subsection 170CG(3)(e) of the Workplace Relations Act 1996 (Cth) was relevantly similar to ss.387(h) of the FW Act.

[23] Similarly, in Daly v Bendigo Health Care Group, Senior Deputy President Kaufman said:

“[62] I am troubled by the apparent disparity in the treatment of Mrs Daly and the other nurses concerned. However, on balance I have concluded that this factor does not render the otherwise justified termination of her employment into one which is harsh, unjust or unreasonable. There was no evidence led as to why the other three nurses were treated differently to Mrs Daly. The fact that none of them was sacked does not of itself render the treatment of Mrs Daly unjust. Although differential treatment of employees can render a termination of employment, harsh, unjust or unreasonable, that is not necessarily the case. I agree with Lawler VP’s observation in Sexton that ‘there must be sufficient evidence of the circumstances of the allegedly comparable cases to enable a proper comparison to be made.’ There is not, in this case, sufficient evidence to enable a proper comparison to be made. Having regard to Mrs Daly’s years of experience, her direct involvement with the patient to a greater extent than that of the other nurses and her refusal to acknowledge that she had acted inappropriately, I am not prepared to find that because the employment of the other nurses involved was not terminated, Mrs Daly’s termination of employment was harsh, unjust or unreasonable.” [Footnotes omitted]

[24] We respectfully concur with their Honours.

[161] Although differential treatment of employees can render a termination of employment harsh, unjust or unreasonable, that is not the case here. From the scant amount of detail Ms Jeffs provided about the circumstances of the other two employees, it does not appear that the cases are in any respect comparable. However, I acknowledge that there is simply insufficient evidence to make any finding in this regard. Further, it is apparent from Ms Jeffs’ evidence that the two employees did ultimately have their employment concluded, although the route differed with respect to how that end was reached. One ended by way of resignation (asserted to have been offered), and the other redundancy. In short, the argument pressed by Ms Jeffs is absent foundation. There is insufficient evidence of the circumstances of the allegedly comparable cases to enable a proper comparison to be made.

Other matters

[162] Amongst other considerations, it is necessary to consider the impact the dismissal had on Ms Jeffs, given the circumstances. This includes consideration as to whether the dismissal was harsh in the sense that it was disproportionate to the actual conduct found by the Commission. 237 I do not consider that Ms Jeffs’ dismissal was disproportionate when one considers her repeated non-compliance with written and verbal directions, the disrespect shown to supervisory and managerial staff, and the taking of unauthorised leave.

[163] Further, a dismissal may, depending upon the overall circumstances be considered to be harsh on the person due to the economic and personal consequences resulting from being dismissed. 238 I have taken into account that Ms Jeffs was an employee with lengthy service. I appreciate that at the time of Ms Jeffs’ dismissal that she had been on RTWP No.6 for a work-related knee injury. I observe that it was uncontentious that QGS had complied with its obligations regarding the relevant workers’ compensation legislation. However, I very much appreciate that it may be difficult for Ms Jeffs to find work. The financial and emotional impact of QGS’s decision to dismiss her has been significant. It has also came at a time where Ms Jeffs has lost her mother after a period of illness.

[164] The Commission’s role is not to consider what it would have done, had it been in the position of the employer. Rather, it must consider whether the dismissal was harsh, unjust or unreasonable, taking into account all of the circumstances. I have sympathy for Ms Jeffs both because of the loss of her mother and her job, and because she lacks insight into how her behaviours are perceived by those around her. There is no demonstration of contrition, and her communication with leaders shows a lack of respect, and, at times, contempt.

[165] The decision to dismiss Ms Jeffs was a serious sanction that would inevitably impact upon her life, but it was not unjust or unfair, and it was not harsh. Ms Jeffs had been well directed as to what was required of her regarding her conduct. Ms Jeffs chose to conduct herself in a manner that was repeatedly incongruent with that which was required of her.

CONCLUSION

[166] I have taken into account all of the matters that I am required to in accordance with s 387. After weighing all the evidence and for reasons set out above, I have concluded that Ms Jeffs’ dismissal was not harsh, unjust or unreasonable. On that basis the application is dismissed. An Order to that effect is published concurrently with this decision. 239″

Jeffs v Qantas Ground Services Pty Ltd – [2019] FWC 7963 – 18 December 2019 – Beaumont DP