Nesbitt v Dragon Mountain Gold Limited [2015] FWC 779 (26 March 2015)

[2015] FWC 779 [Note: An appeal pursuant to s.604 (C2015/802) was lodged against this decision - refer to Full Bench decision dated 12 June 2015 [ [2015] FWCFB 3505 ] for result of appeal.] FAIR WORK COMMISSION DECISION





Fair Work Act 2009



s.394—Unfair dismissal

Louise Nesbitt



v



Dragon Mountain Gold Limited



(U2014/285)





COMMISSIONER CLOGHAN PERTH, 26 MARCH 2015

Application for relief from unfair dismissal - whether the Applicant abandoned her employment, and should she not have abandoned her employment, whether the dismissal was harsh, unjust or unreasonable.

[1] Ms Louise Nesbitt (Nesbitt or Applicant) has made application to the Fair Work Commission (Commission) seeking a remedy for alleged unfair dismissal from her former employer, Dragon Mountain Gold Ltd (Dragon Mountain or Employer).

[2] The application is made pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[3] The application was subject to a Decision of the Commission on 11 August 2014 [2014] FWC 5383 .

[4] Following the Decision, there was a further conference of the parties on 11 September 2014. The application remained unresolved.

[5] The remaining matters in dispute between the parties are whether the Applicant abandoned her employment, and should she not have abandoned her employment, whether her dismissal was harsh, unjust or unreasonable.

[6] At the hearing on 15 January 2015, the Applicant represented herself and gave evidence on her own behalf. In addition, the following persons gave evidence for Ms Nesbitt:

Mr C Stollinger: Friend of the Applicant;









Mr R Guy: Boyfriend of the Applicant’s daughter; and









Ms C Demarte: Friend of the Applicant.









[7] The Employer was represented by Mr Swanson of counsel. Evidence was given on behalf of the Employer by:

Mr R Gardner: Chairman and Managing Director; and









Mr J Stephenson: Company Secretary.









[8] This is my decision and reasons for decision on Ms Nesbitt’s application.

RELEVANT STATUTORY FRAMEWORK

[9] There is no dispute between the parties that Ms Nesbitt has properly made the application in accordance with s.382 of the FW Act. Accordingly, the relevant statutory framework is ss.385 and 387 of the FW Act.

[10] Section 385 of the FW Act sets out the meaning of unfair dismissal as follows:

“385 What is an unfair dismissal A person has been unfairly dismissed if the FWC is satisfied that: (a) the person has been dismissed; and



(b) the dismissal was harsh, unjust or unreasonable; and



(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and



(d) the dismissal was not a case of genuine redundancy. Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

[11] A small business employer is an employer who employs fewer than 15 employees, including the dismissed employee, pursuant to s.23 of the FW Act.

[12] The meaning of dismissed is set out in s.386 of the FW Act and is relevantly:

“386 Meaning of dismissed (1) A person has been dismissed if: (a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or (b) ...”

[13] Pursuant to s.388 of the FW Act, the Minister has declared a Small Business Fair Dismissal Code (SBFD Code) which is referred to later in this Decision.

RELEVANT BACKGROUND

[14] The Employer is listed on the Australian Stock Exchange and operates as a mineral exploration company.

[15] Ms Nesbitt was employed as an Office Administrator/Bookkeeper. Ms Nesbitt commenced employment on 17 November 2007.

[16] At the time of the cessation of employment, the Employer had two (2) employees - Ms Nesbitt and Mr Gardner. I find that the Employer is a small business employer pursuant to s.23 of the FW Act.

[17] Mr Gardner lives in New South Wales and spends extended periods of time away from the Employer’s office in Perth. The Employer relied upon Ms Nesbitt to carry out the day-to-day operations of the Employer in Perth.

[18] Ms Nesbitt states, “Due to the problems with the office I was better able to facilitate the day-to-day operations of the business working from home” 1.

[19] The Employer states that it sold its exploration assets in December 2011. Since that time it [Dragon Mountain] has been dormant as it searches for new exploration tenements in Australia and/or overseas”. Ms Nesbitt states that Dragon Mountain has not been “completely dormant. There has been significant accounting and compliance reporting since the sale of assets”.

[20] Prior to the Employer’s Board meetings, Ms Nesbitt was required to prepare a “board pack” for directors to ensure that the Board was prepared for its meetings.

[21] The Applicant always attended Board meetings with the exception of: November 2013 (at the request of the Employer), December 2013 and January 2014.

[22] With respect to the January 2014 Board meeting, the Applicant states:

“I would have been at the Claisebrook Road premises for the Board meeting on Tuesday 14 January 2014 if the Non-Executive Directors had given me the support I requested following the events on Sunday 12 January 2014, I feel that if the Non-Executive Directors had agreed to meet with me or alternatively appointed someone else to mediate, the situation could have been quickly diffused” 2.

Incident on 12 January 2014

[23] I now turn to the events of 12 January 2014.

[24] On 9 January 2014, Mr Gardner returned to Perth.

[25] From in or around May 2013, the Employer relocated offices from West Perth to Claisebrook.

[26] In January 2014, Ms Nesbitt arranged for plumbing work to be carried out, as part of the refurbishment of the Employer’s Claisebrook office. The plumbing work was to be carried out by her daughter’s boyfriend, Mr Robert Guy.

[27] On 12 January 2014, Ms Nesbitt sent a text message intended for Mr Guy but actually sent to Mr Gardner, in which she describes Mr Gardner as “a complete dick”. Further, the text message states “... we know this already so please try your best not to tell him that regardless of how you feel the need ...” 3.

[28] The description by Ms Nesbitt of Mr Gardner occurred during a period of tension between both parties which will be discussed later in this Decision.

[29] Having realised that she had sent the text to the wrong person, Ms Nesbitt sent a text message to Mr Gardner which reads, “Rob [Mr Gardner] please delete without reading. I am so so so sorry. Xxx”.

[30] Ms Nesbitt subsequently sent a further text message to Mr Gardner which reads, “Rob I need to explain ... that message came across so wrong. Rob ... that is not how I feel. My sense of humour is to exaggerate. It is not how I feel. That was a joke within our family ... Robby [Mr Guy] has a little problem very occasionally mouthing off some time and it was no more than a joke exaggerating both the issues. Yes I do feel that my ideas are all ignored but that’s ok it’s not my building and all I can do is put forward suggestions and hope one or two get implemented. Rob...that it is not how I feel ... It is so far out of context ... Please forget it and just go on as normal. I am very very sorry. It is not how I feel” 4.

[31] Mr Guy, with another plumber, attended the Employer’s Claisebrook office on 12 January 2014 and carried out plumbing work. After lunch, there was an incident between Mr Guy and Mr Gardner.

[32] Following the incident, Mr Gardner telephoned Ms Nesbitt and asked her to attend the office and have Mr Guy removed from the premises.

[33] Ms Nesbitt attended the premises. The evidence of Ms Nesbitt was that Mr Guy and the other plumber advised her not to go inside and meet with Mr Gardner, “so I did not enter the premises” 5.

[34] Later on the same day, Ms Nesbitt telephoned Mr Gardner and explained why she did not meet with him that afternoon. The remainder of the telephone call is in dispute.

[35] Ms Nesbitt states that, “I asked if he [Mr Gardner] wanted to speak to me about anything. He said no” 6. Mr Gardner’s evidence is that Ms Nesbitt said words to the effect, “I’ll be at work tomorrow [Monday 3 January]” (which the Commission presumes should be 13 January 2014). In response, Mr Gardner said words to the effect, “that’s fine, we can sit down and talk about the whole situation then”7.

[36] Ms Nesbitt agrees that she did not attend the Employer’s office on the following day - 13 January 2014.

[37] On 13 January 2014, Ms Nesbitt emailed the Board’s two non-executive directors, Mr Piercy and Mr McBain. In the email, Ms Nesbitt seeks a meeting with the two non-executive directors as soon as possible. Ms Nesbitt indicates in her email that the situation between her and Mr Gardner is serious and “events at the weekend have bought [sic] things to a head”. Ms Nesbitt also requests the non-executive directors not speak to Mr Gardner about the email before she has spoken to them. The email was sent at 8:01 am.

[38] Mr Piercy and Mr McBain responded on the same day (13 January 2014) at 11:39 am and 13:18 pm respectively. They advise Ms Nesbitt that it is not the role of non-executive directors to get involved in the day-to-day management functions of the Employer. Mr Piercy and Mr McBain advise Ms Nesbitt to resolve the situation with Mr Gardner.

[39] Ms Nesbitt responded to the non-executive directors on the same day (13 January 2014) expressing her disappointment with their response. Ms Nesbitt’s email goes into an alleged assault on Mr Guy by Mr Gardner.

[40] Ms Nesbitt was aware of the Board meeting on 14 January 2014 and gives evidence that, “I liaised with Jay Stephenson and...to ensure that the appropriate preparation was made for the meetings” 8.

[41] However, the evidence is that 40 minutes after expressing her disappointment to the non-executive directors about not meeting with her, Ms Nesbitt sent an email to Mr Stephenson which reads:

“I am unable to do the board packs for the meeting on this occasion. Are you able to get someone from there to prepare something. Rob [Mr Gardner] has not discussed the agenda items with me so I am not able to help in that regard. Sorry for the late request.”

[42] Ms Nesbitt did not attend the Employer’s office from 13 to 17 January 2014.

[43] On Friday 17 January 2014, in correspondence from Mr Gardner, the Applicant’s employment was terminated. The letter of termination of employment relevantly reads:

“I refer to the incident which occurred last Sunday 12 January 2014. The Board considered this matter on Tuesday 14 January and resolved that this action constituted gross misconduct by you. Accordingly, the Board resolved to terminate your employment effective immediately on the date of this notice.” 9

CONSIDERATION

The text message which led to Ms Nesbitt’s dismissal

[44] Ms Nesbitt sent a text message in which she described Mr Gardner, who is the Employer’s Chairman and Managing Director, as “a complete dick”.

[45] Ms Nesbitt initially passed off the remark as her exaggerated sense of humour and not how she feels towards Mr Gardner. Ms Nesbitt describes her remark in the second text message as “a joke” within her family. However, Ms Nesbitt also acknowledged in her text message that, “she feels frustrated ... ignore[d] ... and hopes that some of her [suggestions] get implemented” 10.

[46] I do not accept Ms Nesbitt’s submission that I should consider the text message to her boss, in the context of the recipient it was meant for [Mr Guy], or that she lives with young people who put “complete” “in front of every second word” 11.

[47] In my view, Ms Nesbitt was, in colloquial terms, sharing her assessment of Mr Gardner, Chairman and Managing Director of her employer, to the boyfriend of her daughter.

[48] To call a person a “dick” is a derogatory term to describe them as an idiot or fool. The word “complete” is used to convey the message that the person is, without exception, an idiot or fool - they are nothing less than a “dick”.

[49] In my view, the truest words regarding the text message came in Ms Nesbitt’s closing submission when she stated:

“In the end I believe it is a fairly simple case. I made a mistake. I apologised. The respondent has now complicated it with many untrue irrelevant allegations against me ...”

[50] Unfortunately, I agree, this application has been complicated with various assertions. However, those complications do not entirely fall at the feet of the Employer.

Did Ms Nesbitt abandon her employment?

[51] For the following reasons, I find that Ms Nesbitt did not abandon her employment:

on 13 January 2014, Ms Nesbitt attempted to resolve her dispute with Mr Gardner with the Employer’s non-executive directors;









on 13 January 2014, Ms Nesbitt was in touch with the Employer’s Company Secretary advising that she was unable to prepare the Board “packs”;









on 14 January 2014, the Employer’s Board of Directors considered Ms Nesbitt’s ongoing employment and determined it should end;









on 15 or 17 January 2014, Mr Gardner requested Ms Nesbitt to attend the Employer’s office and bring with her original share transfer forms. While Ms Nesbitt did not meet with Mr Gardner face-to-face, there is no dispute that she attended the Employer’s office and left the documents at its office door;









Ms Nesbitt was dismissed at the Employer’s initiative on 17 January 2014. The letter terminating Ms Nesbitt’s employment was for sending a text message describing Mr Gardner as” a complete dick” on 12 January 2014; and









in the letter terminating Ms Nesbitt’s employment, there is no mention of her abandoning her employment.









[52] The plain facts are that, following the incident on 12 January 2014, the Employer’s Board, at its meeting on 14 January 2014, resolved to terminate Ms Nesbitt’s employment. Part of the Board’s resolution was for a solicitor to “write/vet” the letter of termination of employment. Presumably, this was carried out prior to the letter of termination being forwarded to Ms Nesbitt on 17 January 2014. None of these facts described in paragraph [51] above, or her attendance at the Employer’s office on 15 January 2014, support a conclusion that Ms Nesbitt abandoned her employment. I find that Ms Nesbitt was dismissed at the Employer’s initiative pursuant to s.386 of the FW Act.

[53] Having disposed of one “complication”, I now turn to another and that is whether the Employer’s decision to terminate Ms Nesbitt was consistent with the SBFD Code.

Was Ms Nesbitt’s dismissal consistent with the SBFD Code?

[54] There is no dispute between the parties that the Employer is a small business employer pursuant to the FW Act. In fact, there are only two employees - Mr Gardner and Ms Nesbitt.

[55] The SBFD Code relevantly states:

“It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures...”

[56] The Full Bench in Pinawin v Domingo [2012] FWAFB 1359 , considered the above statement in the SBFD Code and observed that the provison:

“[24] ...brings the position for small businesses into line with the test for unfairness applied by tribunals in the UK in misconduct cases. In the leading case of British Home Stores Ltd v Burchell, the Employment Appeal Tribunal held that: “What the tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the ground of the misconduct in question (usually, though not necessarily, dishonest conduct) entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time. That is really stating shortly and compendiously what is in fact more than one element. First of all, there must be established by the employer the fact of that belief; that the employer did believe it. Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief. And thirdly, we think, that the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case. It is the employer who manages to discharge the onus of demonstrating those three matters, we think, who must not be examined further.”

[57] The Full Bench in Pinawin v Domingo also adopted the approach and observations in two other Decisions of the Commission as follows.

[58] Deputy President Bartel in Narong Khammaneechan v Nanakhon Pty Ltd ATF Nanakhon Trading Trust T/A Banana Tree Cafe, stated:

“[60] At the outset it is appropriate to note that unlike a consideration of the dismissal of an employee of a business that is not a small business employer, the function of FWA is not to determine on the evidence whether there was a valid reason for dismissal. That is, the exercise in the present matter does not involve a finding on the evidence as to whether the applicant did or did not steal the money. The application of the Small Business Fair Dismissal Code involves a determination as to whether there were reasonable grounds on which the respondent reached the view that the applicant’s conduct was serious enough to justify immediate dismissal. As such, the determination is to be based on the knowledge available to the employer at the time of the dismissal, and necessarily involves an assessment of the reasonableness of the steps taken by the employer to gather relevant information on which the decision to dismiss was based.”

[59] Senior Deputy President O’Callaghan in Harley v Rosecrest Asset Pty Ltd T/A Can Do International, stated:

“[8] For an employer to believe on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal, it is firstly necessary for the employer to establish that the employer did in fact hold the belief that as a matter of fact that (i) the conduct was by the employee; (ii) the conduct was serious; and (iii) that the conduct justified immediate dismissal. This is to be contrasted to the provisions of s.387(a) where FWA, in determining whether there was a valid reason for the dismissal, must find whether the conduct in fact occurred. [9] Secondly, it is necessary for the employer to establish that there are reasonable grounds for the employer holding the belief. It is thus necessary for the employer to establish a basis for the belief held which is reasonable. In this regard it would usually be necessary for the employer to establish what inquires or investigations were made to support a basis for holding the belief. It would also ordinarily be expected that the belief held be put to the employee, even though the grounds for holding it may not be. Failure to make sufficient inquiries or to put the accusation to the employee in many circumstances might lead to a view that there were no reasonable grounds for the belief to be held.”

[60] The Full Bench in Pinawin v Domingo further stated at paragraphs [29] to [31] as follows:

“[29] We believe that the approach and observations in these two decisions are correct. There are two steps in the process of determining whether this aspect of the Small Business Fair Dismissal Code is satisfied. First, there needs to be a consideration whether, at the time of dismissal, the employer held a belief that the employee’s conduct was sufficiently serious to justify immediate dismissal. Secondly it is necessary to consider whether that belief was based on reasonable grounds. The second element incorporates the concept that the employer has carried out a reasonable investigation into the matter. It is not necessary to determine whether the employer was correct in the belief that it held. [30] Acting reasonably does not require a single course of action. Different employers may approach the matter differently and form different conclusions, perhaps giving more benefit of any doubt, but still be acting reasonably. The legislation requires a consideration of whether the particular employer, in determining its course of action in relation to the employee at the time of dismissal, carried out a reasonable investigation, and reached a reasonable conclusion in all the circumstances. Those circumstances include the experience and resources of the small business employer concerned. [31] The question we need to consider in this case is whether Mr and Mrs Pinawin believed on reasonable grounds that Mr Domingo’s conduct was sufficiently serious to justify immediate dismissal.”

[61] The principal reason for Ms Nesbitt’s dismissal was the text message describing Mr Gardner, the Employer’s Chairman and Managing Director, as a “complete dick”. However, the evidence provided in the hearing indicates that this remark appears to have been the culmination of a “testing” relationship with Mr Gardner.

[62] Ms Nesbitt, when asked in cross examination if she thought calling someone “a complete dick” offensive, responded that “in the context of that text I didn’t call Mr Gardner a complete dick” 12. Further, Ms Nesbitt gave evidence, “I don’t have an opinion on his conduct and temper I merely wanted to warn [Mr Guy] to stay out of trouble”13.

[63] While Ms Nesbitt gave this evidence, the exact words of the text message reads:

“Now remember ... Rob is a complete dick...we know this already so please try your best not to tell him that regardless of how much you might feel the need” 14

[64] The context is Ms Nesbitt reminding Mr Guy that they both consider Mr Gardner a fool or idiot. The use of the word “we” is demonstrative of both Ms Nesbitt and Mr Guy sharing the same assessment of Mr Gardner. In view of the fact that Mr Guy is a contractor and appears to have little contact with Mr Gardner, it is reasonable to conclude that Ms Nesbitt was the purveyor of the view that Mr Gardner is “a complete dick” and Mr Guy agreed - presumably because she is the mother of his girlfriend. This conclusion is supported by her later explanatory text message where Ms Nesbitt states, “that was a joke within our family” 15.

[65] On the evidence, I am not persuaded that when Ms Nesbitt referred to Mr Gardner as “a complete dick”, it was her sense of humour to exaggerate or, that it was “light hearted insult” or it should be read in the context of the person it was meant for. It was far from a “light hearted insult”, it was a hurtful and unpleasant appraisal of the Chairman and Managing Director of her Employer, for whom she earned $95,000 per annum. Further, the reality is that Mr Gardner was the only other employee of the Employer.

[66] Mr Gardner gave evidence that the text message which described him as “a complete dick” was highly offensive, derogatory and a shock given Ms Nesbitt’s position as an employee and the long working relationship 16. I have no reason to disbelieve Mr Gardner.

Context of working relationship between Ms Nesbitt and Mr Gardner

[67] From commencement of her employment to in May 2013, Ms Nesbitt worked full-time at the Employer’s West Perth Office. During this period, it appears, with maybe a few exceptions, Ms Nesbitt carried out her duties satisfactorily.

[68] However, the evidence demonstrates that shortly after the relocation to the Claisebrook office, the working relationship between Ms Nesbitt and Mr Gardner deteriorated. Ms Nesbitt who lived approximately five (5) minutes away from the Claisebrook office was given permission to work part-time from home but was required to let tradespersons in and out of the premises as part of the refurbishment of the office. The Employer asserts that Ms Nesbitt was required to supervise the tradespersons - Ms Nesbitt denied that she was required to supervise the tradespersons 17. However, Ms Nesbitt states, “it was not my duty to arrange the maintenance and refurbishment of DMG’s [Dragon Mountain] premises although I was eager to help whenever I could and I would have been more than happy if it was my duty”18. Further, in oral evidence, “I sent Mr Gardner an email which stated, “we need all of these trades. I suggest you do this. I suggest you do that. I suggest you do this. I can do this. I can do that””19. This evidence, in my view, corroborates Ms Nesbitt’s comment in the email that “yes I do feel frustrated that my ideas are all ignored but that’s OK it’s not my building and all I can do is put forward suggestions and hope one or two get implemented”20. Clearly, whether it was Ms Nesbitt’s role to supervise the refurbishment or not, she had a view on what should be happening with the refurbishment; it appears some of those suggestions were not being implemented by Mr Gardner.

[69] Having considered this evidence and the fact that Ms Nesbitt called Mr Gardner “a complete dick”, I am unable to agree with her evidence, in cross-examination, that “there wasn’t a breakdown in relationship ... there was nothing wrong with my relationship with Mr Gardner” 21.

[70] This evidence of Ms Nesbitt is inconsistent with her views expressed to the two non-executive directors which reads, “... the situation is serious ... events at the weekend have bought [sic] things to a head”. 22

[71] Clearly, the working relationship between Ms Nesbitt and Mr Gardner had deteriorated in the months after the relocation to Claisebrook. I agree with the Applicant that the situation was “serious”. It was serious because the working relationship was attended by allegations of accounting errors, allegations of Ms Nesbitt not attending work and choosing to work from home, failure to update the Employer’s website, and failure to process Company documents in a timely manner. Mr Gardner’s evidence was that there was a breakdown in their professional relationship.

[72] Ms Nesbitt’s ongoing employment for performance reasons had been discussed by the Board at its August meeting. Mr Gardner was monitoring Ms Nesbitt’s performance, however, he gave evidence that he wished for Ms Nesbitt to remain in employment over the Christmas period. 23 Mr Stephenson gave supportive evidence of discussions between him and Mr Gardner regarding the deterioration of Ms Nesbitt’s work and the need for her to be replaced by a formally trained accountant. For these reasons, I also agree with Ms Nesbitt that the text message had brought things “to a head”.

[73] While there was a contest concerning the facts of what happened in the months leading up to the incident on 12 January 2014, I return to the “two steps” as set out by the Full Bench in Pinawin v Domingo.

[74] Trust and confidence is an essential element in any employment relationship. In this case the employment relationship stripped to its barest, consisted of two people; the Chairman and Managing Director and Ms Nesbitt. Further, it is an employment relation where the Chairman and Managing Director spends most of his time interstate or overseas and Ms Nesbitt is “in charge” on a daily basis. This is not a situation of a large employer with thousands of employees and an employee many layers removed from the “boss”. In my view, the issue of trust and confidence is far more acute when consideration is given to the closeness of the employment relationship. With two people in the employment relationship and one absent for significant periods of time, trust and confidence is an absolute necessity.

[75] In her letter of termination, Mr Gardner uses the term “gross misconduct”. I am satisfied that the word “gross” is intended to mean “serious”. The word “serious” is intended to convey the gravity of the misconduct. The gravity of the conduct must be considered within the totality of the employment relationship. Having considered the totality of the employment relationship, and the fact that Ms Nesbitt described Mr Gardner as “a complete dick”, I am satisfied that, in relation to the first step in Pinawin v Domingo, the Employer held a belief that Ms Nesbitt’s conduct was sufficiently serious to justify immediate dismissal. Even Ms Nesbitt described in her email to the non-executive directors that the situation between her and Mr Gardner was “serious”.

[76] While the decision to terminate Ms Nesbitt’s employment was not made on 12 January 2014, when Mr Gardner received the text message, he asked her to attend the office where she worked. Ms Nesbitt took the advice of Mr Guy and the other plumber and did not enter the premises. When Ms Nesbitt returned home, she telephoned Mr Gardner and asked whether he wanted to see her. According to Ms Nesbitt despite the text message he answered “No”. 24 In my view, it is more plausible that Mr Gardner’s response was “no” because Ms Nesbitt was to attend the office on the following day and the matter could be discussed on Monday, 13 January 2014.

[77] For her own reasons, Ms Nesbitt tried to engage the non-executive directors on 13 January 2014 but did not attend work on that day. Further, Ms Nesbitt did not attend the office on the following day. The matter was discussed at the Board meeting and a decision was made to end the employment relationship.

[78] I am satisfied that, while there was a delay between the incident on 12 January 2014, and the Board’s decision on 14 January 2014, and the notice of dismissal on 17 January 2014, it was summary dismissal for serious misconduct. During that period, Mr Gardner did not speak to Ms Nesbitt as she failed to attend the office for normal work duties. I am not persuaded by Ms Nesbitt’s evidence that she “continued to work from home” as if nothing had happened. Nor am I persuaded that she “was reluctant to see Mr Gardner with the assault charge pending” 25. For completion, I note that the police took no action against Mr Gardner regarding the incident.

[79] I now turn to the second step in Pinawin v Domingo and that is whether Mr Gardner’s belief was based on reasonable grounds that Ms Nesbitt’s conduct was sufficient to justify immediate dismissal.

[80] Ms Nesbitt in her evidence concluded that “... when they [non-executive directors] refused to speak to me, I didn’t really have a plan but to wait and see what happened. I had already apologised. The only clear plan I had was to have a third party present when I first spoke to Mr Gardner in person. But nothing more was said”.

[81] Ms Nesbitt poses the rhetorical question of how the Directors of the Employer describe an “accidental, out of context text message as gross misconduct.” Accidental or not, what matters is the content of the text message. In view of the deteriorating working relationship, I consider the Employer had reasonable grounds to believe, that Ms Nesbitt considered Mr Gardner a fool or idiot.

[82] Ms Nesbitt assumes that having called her boss a fool or idiot she is able to reformulate its consequences by considering it acceptable to apologise (by text), provide implausible reasons for calling Mr Gardner “a complete dick” and go to third parties and seek that they not speak to her boss, before they discuss the text message with her. I mention these matters, because the Employer was aware of them and they should be considered, in whether Mr Gardner’s believed the conduct was sufficient to justify immediate dismissal.

[83] For the reasons above, and consistent with Pinawin v Domingo, I am satisfied that, at the time of the dismissal, the Employer held a belief that Ms Nesbitt’s conduct was sufficiently serious to justify summary dismissal. Further that that belief was based upon reasonable grounds.

[84] Finally, Ms Nesbitt asserts that the two non-executive directors, Mr Piercy and Mr McBain were negligent in going to Mr Gardner with her email seeking a meeting to discuss the 12 January 2014 incident. In my view there is nothing negligent in their actions; it is what the non-executive directors would do in similar circumstances. What is remarkable is that Ms Nesbitt would seek Mr Piercy and McBain to meet with her without first discussing the matter with the Chairman. These facts demonstrate the determination of Ms Nesbitt to bypass the Chairman and Managing Director and illustrate the deterioration of their working relationship.

CONCLUSION

[85] In conclusion, for the reasons set out above, I am satisfied that Ms Nesbitt’s dismissal was consistent with SBFD Code, and consequently she has not been unfairly dismissed pursuant to s.385(c) of the FW Act. Accordingly, the application must be dismissed. An order to this effect is issued jointly with this Decision.

COMMISSIONER

Appearances:

L Nesbitt, the Applicant.

L Swanson of counsel on behalf of the Employer.

Hearing details:

2015:

Perth,

15 January.

1 Exhibit A5

2 Exhibit A5

3 Exhibit A5(e)

4 Exhibit A5(5)

5 Exhibit A6

6 Exhibit A6

7 Exhibit R5

8 Exhibit A6

9 Exhibit A5(l)

10 Exhibit A5

11 Exhibit A2

12 Transcript PN481

13 Transcript PN484

14 Exhibit R5(e)

15 Exhibit R5(e)

16 Exhibit R5

17 Transcript PN552

18 Exhibit A5 (11)

19 Transcript PN523

20 Exhibit A5

21 Transcript PN527

22 Exhibit AEG

23 Exhibit R5

24 Exhibit A1

25 Exhibit A1

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