Park Manager pays price following alleged involvement in “compromising incident”

The Fair Work Commission (FWC) has awarded a casual caravan park cleaner more than $5,000 compensation after finding that her summary dismissal, allegedly for stating that she was aware the park manager and another cleaner were having an “affair”, was unjust.

Background

The cleaner (Ms Hall) had barely more than a year of service with the employer when she was terminated, with immediate effect, in April 2018, having only returned from a several-month leave of absence on WorkCover in February. While the cleaner was away, her sister (Ms Kennedy) had been engaged to cover her cleaning role. On 5 February 2018, when Ms Kennedy reported to the reception area of the caravan park to retrieve a blanket, she unexpectedly discovered the park’s manager, Mr Reid, and one of the other casual cleaners, Ms Halpin, “in a compromising position together”. Mr Reid acknowledged her by name while Ms Halpin “straightened up her clothes”, then both women returned to the cabins together to continue cleaning. Later that same day, Ms Kennedy called her sister, Ms Hall, to ask when she would be returning to work as Ms Kennedy was now keen to conclude her employment at the caravan park as a result of the “compromising incident”. During her final shifts at the caravan park, Ms Kennedy admitted she discussed the relationship of Mr Reid and Ms Halpin with the park’s admin assistant, Ms Cavanough and, without divulging details, made reference to the “compromising incident”.

Ms Hall returned to duty on 13 February and on 2 March, whilst working with Ms Halpin, Ms Hall had allegedly made comments that she knew about the relationship (between Ms Halpin and Mr Reid) and had proof of the “affair”. Ms Halpin was “upset” and reported Ms Hall’s alleged comments to Mr Reid, who determined it was necessary to investigate and sought a statutory declaration from Ms Halpin. On advice from his solicitor, Mr Reid decided it was necessary to have another person, in addition to Ms Halpin, verify that Ms Hall had made the comments attributed to her. Mr Reid subsequently sought a statutory declaration from Ms Cavanough, the park’s admin assistant. Both women attested to Ms Hall having made statements to them about the “compromising incident”. The two statutory declarations were obtained by Mr Reid by 4 April.

On 26 April, Mr Reid summoned Ms Hall to a meeting at the park office wherein he informed her that her employment was terminated because he believed she had made allegations about him which “made the working environment hard and uncomfortable”.

At Hearing, Ms Hall argued she was never made aware of the allegations made against her by Ms Halpin and Ms Cavanough prior to her dismissal and insisted she never made the statement that Ms Halpin and Mr Reid were having an affair. Ms Hall conceded that she had previously had “some trouble” working with Ms Halpin and had advised of her “displeasure” at the nature of conversations that frequently occurred between Ms Halpin and Mr Reid in the workplace. In this regard, Ms Hall maintained that all she had ever done was to ask them to “stop talking sexual sh*t and doing stuff in front of me.” Ms Hall maintained that she had never said that Ms Halpin and Mr Reid were having an “affair”, insisting that she did not use the word “affair” and that she knew Mr Reid would not leave his partner, “for a hit.”

For the employer, Mr Reid relied on the statutory declarations he used as the basis for Ms Hall’s dismissal and argued that the allegations that were made by Ms Hall meant that it was untenable for the employees to all work together, reiterating that Ms Halpin (who lived at the park with her husband) was “upset” by the comments, as was Mr Reid’s partner (who has since become his wife). Mr Reid submitted that “working in such a small environment with just a few people, made it hard if other people were making allegations about things that were not true”.

What the FWC found

Ultimately, Commissioner Cambridge found that despite the employer attempting to categorise the alleged conduct as sufficiently serious to warrant immediate termination, “the dismissal did not possess any of the elements usually associated with a summary dismissal”. In particular, the Commissioner noted that Mr Reid had been aware of the alleged conduct as early as 2 March but the employment was permitted to continue “for a considerable period of time” before Ms Hall was dismissed on 26 April. Mr Reid also failed to suitably explain why, when he was in receipt of the two statutory declarations from 4 April, he made no attempts to make Ms Hall aware of the statements or allow her to respond between 4 April and when she was dismissed on 26 April saying only that he thought Ms Hall would “just deny the allegations”.

Commissioner Cambridge criticised Mr Reid’s “misguided approach” to attempting to construct an evidentiary basis for summary dismissal “in circumstances where the particular conduct was not sufficiently serious to justify immediate dismissal” concluding that the evidence did not establish that Ms Hall had made the statements attributed to her. As neither Ms Halpin nor Ms Cavanough gave evidence during the Hearing, the Commissioner preferred the evidence of both Ms Hall and her sister, which was tested by way of cross examination “without identifiable discredit”.

In finding there was no valid reason for Ms Hall’s dismissal, the Commissioner also held the process undertaken by the employer to be “entirely unjust and unreasonable…including the complete absence of any opportunity for the applicant to be heard before the decision to dismiss was made”. Notwithstanding the fact the employer was a small business to which “a degree of informality and flexibility in respect to employment related procedures has been provided”, the dismissal was held to be unfair and the employee awarded 12 weeks’ pay ($5,520).

The Commissioner noted a “particular irony” in respect of this case in that, had the employee been dismissed just 8 or more days earlier – at a point in time when the employer had been in receipt of both statutory declarations that formed the basis for her termination for almost two weeks – she would not have been a person protected from unfair dismissal (and therefore could not have pursued recourse for the employer’s decision-making, however flawed).

Hall v Sherkaz Pty Ltd T/A Country Acres Caravan Park [2018] FWC 6847