This article originally appeared on WorkplaceInfo
Full text of this case: Tara Davies v Hip Hop Pty Ltd T/A Hippity Hop Child Care [2011] FWA 776 (4 February 2011) (9/2/2011)
On 11 June, the Hippity Hop Child Care employee was required to attend a meeting for a 'chat' with senior management. At the meeting, senior management initially complimented the employee's work, but went on to remark that her work had 'deteriorated' and that 'some staff have found you intimidating'.
Next, they raised allegations that she had breached the company's ‘no backbiting’ policy, which provides that any staff member caught backbiting may be subject to immediate dismissal, but refused to provide any details of what the employee was alleged to have said.
A principal of the company then explained that "we fired three girls at our last centre for backbiting" and when the employee asked whether the policy would be applied to her case, the principal replied: "It pains me. Unfortunately - I don’t want to have to."
The employee, who had become emotional at that stage, left the meeting with the understanding that she had been dismissed. Prior to collecting her personal belongings and exiting the centre, she told a staff member that she had been sacked.
Word ‘dismissal’ not spoken, but meeting’s purpose was explicit
During unfair dismissal proceedings before Fair Work Commissioner John Ryan, the employer contended that the employee was not dismissed but had 'admitted guilt' and abandoned her employment when she left the meeting on 10 June 2010.
However, Cmr Ryan found that that the employer’s argument was 'unsustainable' given the way in which senior management had conducted the meeting, including its failure to attempt calling the employee back into the meeting to advise her she hadn't been sacked, even though it knew she was under the impression she had been.
"By clearly stating to the Applicant that at a different child care centre Ms Smith had fired 3 staff for back biting and then making it clear to the Applicant that the Respondent was going to apply its policy on 'back biting' this constituted a clear statement of intent to dismiss the Applicant if she had engaged in 'back biting'," he said.
"By not disclosing any information about the alleged backbiting the Respondent made it impossible for the Applicant to respond to the allegation. When the Applicant left the meeting the Respondent knew that the Applicant believed she had been sacked. This was an outcome that suited the Respondent and an outcome which was then reinforced… [when] the Respondent specifically told staff that the Applicant had been dismissed."
"Further the Respondent concocted a letter of termination over a month after the termination in which they not only specifically stated that the Applicant was dismissed but in addition they advanced 3 reasons for the dismissal rather than the single reason given on 11 June 2010."\
"Merely because neither of Ms Hughes, Ms Smith or Mr Baiocchi [director and two principals] specifically uttered words of dismissal to the Applicant does not mean that the Respondent did not dismiss the Applicant. The termination of the Applicant’s employment only occurred because of actions and conduct initiated by the Respondent. I find that the Applicant's employment with her employer has been terminated on the employer’s initiative."
'Not in the same league as theft, fraud, violence, or serious OHS breaches'
Cmr Ryan found that the dismissal was not consistent with the Small Business Unfair Dismissal Code, which permits a small business employer to initiate a dismissal without notice where there is 'serious misconduct'.
"The very language of the Code would make clear to any small business employer, including one unfamiliar with either the Fair Work Regulations approach to serious misconduct or the case law on serious misconduct, that on any objective or reasonable basis 'back biting' would not appear to be in the same league as 'theft, fraud, violence and serious breaches of occupational health and safety procedures'," he said.
"Whilst the Respondent may regard 'back biting' seriously and may regard it as warranting dismissal the very wording of the Code would suggest to the Respondent that 'back biting' was not serious misconduct justifying instant dismissal but might well be conduct justifying dismissal with notice."
Employer’s policy 'extremely blunt' and not clearly defined
During proceedings, the employer contended that 'backbiting' is the making of 'any negative comment about a person behind their back'. However, Cmr Ryan described the employer's 'no backbiting' policy as an 'extremely blunt instrument' in circumstances where employees could be instantly dismissed for a concept for which the employer had failed to prescribe any common understanding of the term 'backbiting'.
"The Applicant admitted making negative comments about staff members but said that as such comments were true they weren't 'back biting'. The comments were that one staff member was lazy and that another was not a competent carer," he said.
"In the present matter even though the comments made by the Applicant are, simpliciter, a breach of the Respondent's 'back biting' policy, those comments do not have the necessary odiousness attached to them to justify dismissal of the Applicant. The comments themselves and the fact that they constituted a breach of the Respondent's 'back biting' policy would have warranted some form of disciplinary action but clearly something well short of termination of employment."
"The Respondent's policy makes no distinction between malicious and untrue comments made behind a person's back with the clear intention of destroying the persons reputation and comments made behind a person's back which are true and which would not result in serious damage to the employees reputation."
"The very bluntness of the Respondent's policy means that mere breach of the policy cannot constitute a valid reason for dismissal."
Compensation awarded, but reinstatement 'inappropriate'
In considering whether the dismissal was "harsh, unjust or unreasonable", Cmr Ryan determined that the dismissal did not relate to any other alleged unsatisfactory performance by the employee, and that the employee was not alerted to the intention of the meeting, invited to have a representative present, or given the opportunity to respond to the reason for her dismissal before her effective dismissal occurred.
Relevantly, Cmr Ryan noted the employee's evidence that when she had previously complained to the director of the centre about the conduct of an employee, who is the director's sister, nothing was done even though the complaint directly related to the safety of children.
"Although the Respondent … made clear that [it] expected staff to bring issues and complaints to management and not to 'back bite', the reality of the relations at the workplace leads me to conclude that the Respondent simply did not have in place measures to ensure this would happen," he said.
In all the circumstances, Cmr Ryan determined that the dismissal was "harsh, unjust or unreasonable". Although the employee did not seek reinstatement as a remedy, Cmr Ryan nevertheless considered that reinstatement was "inappropriate" given the conduct of the employer at the meeting on 11 June 2010 and subsequent to that date. Following a reduction, which took into account the misconduct that contributed to the employee's dismissal, Cmr Ryan ordered the employer pay the employee $9480 in compensation.
Tara Davies v Hip Hop Pty Ltd T/A Hippity Hop Child Care [2011] FWA 776 (4 February 2011)