| Summary |
UNJUSTIFIED DISMISSAL – Serious misconduct - Discrimination – Applicant dismissed for twice leaving work earlier than rostered and recorded on timesheet, with outstanding work and without authorisation, failure to comply with respondent’s policies and procedures including health and safety standards and infection control, and for failing to take directions from or carry our proper work instructions from housekeeper (“B”) – Respondent argued applicant admitted conduct in several instances, no trust in applicant to work safely and serious breaches of house rules – Applicant profoundly deaf – Applicant claimed discriminated against by reason of hearing disability and dismissal unjustified – As submitted by applicant, Authority treated discrimination claim as absorbed into dismissal claim – Applicant received letter advising of disciplinary meeting to investigate serious misconduct that could lead to dismissal – Two time sheets, two complaints forms from B, copy of house rules and copy of employment agreement attached to letter – Applicant’s mother (“D”) attended meeting as support person – Applicant dismissed after adjournment – Authority found concerns about washing, ironing standards, lint removal, failing to plan work, deterioration in performance and failing to notice washing machine not working were performance issues – Found not previously warned performance inadequate and position at risk if did not improve – Found fair and reasonable employer would have used poor performance process under ordinary misconduct in house rules – Found no admission of misconduct in disciplinary meeting – Found applicant accepted aware of policy and procedures, but did not admit breaches – Found falsification of timesheets allegation required respondent to be satisfied applicant intended to make record inaccurate to deceive respondent – Due to investigative process and surrounding circumstances, Authority not satisfied fair and reasonable employer would have been in position to reasonably conclude applicant falsified time records rather than simply leaving early without permission – Authority found fair and reasonable employer would not have concluded D admitted applicant failed to take direction from B – Found applicant did not think B was her boss – Found fair and reasonable employer would have investigated further whether deafness was part of communication problems between applicant and B – Found allegation about taking direction from B too general, with no specific instances – Found no full and fair enquiry enabling applicant to reach conclusion of serious misconduct – Found no basis for conclusion trust and confidence undermined seriously enough to warrant summary dismissal – Found applicant did not request interpreter or ask for adjournment during disciplinary meeting – Found fair and reasonable employer would have felt confident applicant had proper opportunity to explain or make herself understood – Found fair and reasonable employer would have concluded performance and relationship issues needed addressing and that applicant committed misconduct in leaving earlier than rostered time twice – Found warning appropriate, but not dismissal - Dismissal unjustified – REMEDIES – Found performance concerns not contributory conduct as not properly raised with applicant – Found applicant contributed in blameworthy way by leaving workplace early before fully completed work – Authority not satisfied applicant falsified timesheet, but found should have asked permission before leaving workplace before recorded time – Found twenty percent contributory conduct appropriate – Found applicant attempted to mitigate loss - Authority considered applicant possibly at disadvantage in securing new employment quickly, due to disability - Authority awarded lost wages for period until applicant found new employment, plus difference in earnings between old and new position for 9 month period – Applicant and D gave evidence of shock and dismay at dismissal, particularly loss of financial security – Authority considered applicant gave up second part time job to take up full time role with respondent only three weeks before dismissal – $4,000 compensation after contributory conduct deduction appropriate - Laundry assistant |