1
Fair Work Act 2009
s.394—Unfair dismissal
Raquel Ciuzelis
v
James Benedict Jones
(U2013/10511)
DEPUTY PRESIDENT ASBURY BRISBANE, 15 AUGUST 2014
Application for an unfair dismissal remedy.
Background
[1] Raquel Ciuzelis applies for an unfair dismissal remedy under s.394 of the Fair Work
Act 2009 (the Act). The application was originally made with respect to her employment by
the Pet Cemetery and Crematorium Greenbank/James Jones. By consent the application was
amended so that the Respondent is James Benedict Jones on the basis that Mr Jones’
registered trading name is The Pet Cemetery and Crematorium ABN 49 681 271 044, and that
he operated the Pet Cemetery and Crematorium Greenbank as an Individual/Sole Trader.
[2] The background can be briefly stated. Ms Ciuzelis was employed by Mr Jones as an
Office Manager on a full time basis from 4 July 2011 until her dismissal on 6 June 2013. Ms
Ciuzelis was absent from work from 10 May 2013 because of a back injury which she alleges
was originally sustained on 5 July 2012 while at work. The cause of the injury and whether it
occurred at work is in dispute and was the subject of a Workers’ Compensation claim which
was ultimately rejected.
[3] Ms Ciuzelis was cleared to return to work on 10 June 2013. There were issues with her
return to work and before she could do so Mr Jones sold his business to Greencross Limited.
Mr Jones asserts that Greencross was under no obligation to offer employment to any
employees but that employment was offered to all of those who were at work. Ms Ciuzelis
was not at work when the sale was effected and was accordingly made redundant.
[4] Ms Ciuzelis contends that she was dismissed because she injured her back at work and
took the appropriate action to seek treatment for her injury and that her dismissal was unfair.
[5] With respect to the initial matters required to be considered by virtue of subsections
(a), (b) and (d) of s.396, the application was made within the period required in s.394(2) of the
Act and Ms Ciuzelis was protected from unfair dismissal as provided in s.382 of the Act. The
application was dealt with by way of a hearing, as it was considered that this was the
appropriate course, having taken into account the matters set out in s.399 of the Act and the
views of the parties. Ms Ciuzelis and Mr Jones gave evidence in the hearing.
[2014] FWC 5566 [Note: An appeal pursuant to s.604 (C2014/6135) was
lodged against this decision - refer to Full Bench decision dated 12 March
2015 [[2015] FWCFB 84] for result of appeal.]
DECISION
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2015FWCFB84.htm
[2014] FWC 5566
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Legislation
[6] By virtue of s.385 of the Act, a person has been unfairly dismissed if the Commission
is satisfied that:
(a) The person has been dismissed;
(b) The dismissal was harsh, unjust or unreasonable;
(c) The dismissal was not consistent with the Small Business Fair Dismissal Code;
and
(d) The dismissal was not a case of genuine redundancy.
[7] By virtue of s. 389(1) a person’s dismissal was a case of genuine redundancy if:
“389 Meaning of genuine redundancy
(1) A person’s dismissal was a case of genuine redundancy if:
(a) the person’s employer no longer required the person’s job to be
performed by anyone because of changes in the operational requirements of the
employer’s enterprise; and
(b) the employer has complied with any obligation in a modern award or
enterprise agreement that applied to the employment to consult about the
redundancy.”
[8] A person’s dismissal was not a case of genuine redundancy if, as provided in s.389(2)
it would have been reasonable in all the circumstances for the person to be redeployed within:
(a) The employer’s enterprise; or
(b) The enterprise of an associated entity of the employer.
[9] Notwithstanding that Mr Jones did not raise a jurisdictional objection to Ms Ciuzelis’
application on the ground of genuine redundancy, he asserted that she was redundant. I am
therefore required to consider whether or not the exclusion in s.385(d) applies, and if that
exclusion does apply, to find that her dismissal was not unfair. If the dismissal was not a
genuine redundancy, I am required to consider whether Ms Ciuzelis’ dismissal was unfair on
the grounds that it was harsh, unjust and unreasonable by considering the criteria in s.387 of
the Act.
[10] In relation to the question of whether Ms Ciuzelis’ dismissal was a genuine
redundancy as defined in s.389 of the Act, there was no specific evidence about whether a
modern award covered Ms Ciuzelis’ employment. Her uncontested evidence is that she was
employed in the capacity of Office Manager. On the basis of the evidence that is before me it
is probable that Ms Ciuzelis’ employment was covered by a modern award - either the Clerks
Private Sector Award 2010 or the Cemetery Industry Award 2010. Both of those Awards
contain a standard clause in relation to consultation, which is in the following terms:
[2014] FWC 5566
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8.1 Consultation regarding major workplace change
(a) Employer to notify
(i) Where an employer has made a definite decision to introduce major changes
in production, program, organisation, structure or technology that are likely to
have significant effects on employees, the employer must notify the employees
who may be affected by the proposed changes and their representatives, if any.
(ii) Significant effects include termination of employment; major changes in
the composition, operation or size of the employer’s workforce or in the skills
required; the elimination or diminution of job opportunities, promotion
opportunities or job tenure; the alteration of hours of work; the need for
retraining or transfer of employees to other work or locations; and the
restructuring of jobs. Provided that where this award makes provision for
alteration of any of these matters an alteration is deemed not to have significant
effect.
(b) Employer to discuss change
(i) The employer must discuss with the employees affected and their
representatives, if any, the introduction of the changes referred to in clause
8.1(a), the effects the changes are likely to have on employees and measures to
avert or mitigate the adverse effects of such changes on employees and must
give prompt consideration to matters raised by the employees and/or their
representatives in relation to the changes.
(ii) The discussions must commence as early as practicable after a definite
decision has been made by the employer to make the changes referred to in
clause 8.1(a).
(iii) For the purposes of such discussion, the employer must provide in writing
to the employees concerned and their representatives, if any, all relevant
information about the changes including the nature of the changes proposed,
the expected effects of the changes on employees and any other matters likely
to affect employees provided that no employer is required to disclose
confidential information the disclosure of which would be contrary to the
employer’s interests.
[11] The clause is numbered as clause 8.1 in each Award and applies regardless of whether
the employer is excluded from obligations to pay redundancy pay because the employer has
less than 15 employees.
[12] If the dismissal is not a case of genuine redundancy, the Commission is required to
consider whether it is harsh, unjust or unreasonable on the basis of the following criteria set
out in s.387 of the Act:
[2014] FWC 5566
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“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or
unreasonable, the FWC must take into account:
(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.”
Evidence and submissions
[13] Ms Ciuzelis asserts that she injured her back on 5 July 2012 when she was assisting
another employee to move deceased Rottweiler named JD. Ms Ciuzelis said that she did not
report her injury formally as there was no process in the workplace to do so, but maintained
that she told Mr Jones on 6 July 2012 what had occurred. Ms Ciuzelis suffered back pain after
the injury occurred, and first sought medical treatment on 25 September 2012. She was
prescribed gentle stretching and strengthening exercises, heat treatment and pain medication.
Ms Ciuzelis also said that she did not seek treatment for her injury at the outset because she
had seen Mr Jones dismiss other employees in similar circumstances and her job had
previously been threatened when she enquired about Award conditions.
[14] Ms Ciuzelis said that she continued to be impacted by the injury and on 10 May 2013
her pain was unbearable and she was not able to go to work. Ms Ciuzelis telephoned Mr Jones
and told him that she was going to a chiropractor that day to seek treatment. After receiving
treatment Ms Ciuzelis again telephoned Mr Jones and told him that she had been advised that
she would need to be off work until 20 May 2013 and that she would provide a medical
certificate and keep Mr Jones up to date.
[2014] FWC 5566
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[15] Ms Ciuzelis sought further treatment from a chiropractor on 13, 14 and 17 May 2013.
Ms Ciuzelis telephoned Mr Jones on 15 May 2013 and updated him about her injury and
treatment. Ms Ciuzelis also tendered a medical certificate issued by her chiropractor on 10
May 2013 indicating that she would be incapacitated for work from that date until 19 May
inclusive. On 20 May 2013 Ms Ciuzelis telephoned Mr Jones and spoke to another employee
and told her to tell Mr Jones that she would not be at work.
[16] On 21 May 2013 Ms Ciuzelis had a CT scan which indicated disc protrusions in her
lower back. Ms Ciuzelis telephoned Mr Jones to tell him that she would be visiting her GP to
discuss this injury and made a further call to Mr Jones later on that date to discuss the fact that
she had not been paid since 13 May 2013. Ms Ciuzelis also lodged a claim for Workers’
Compensation on 21 May 2013. Ms Ciuzelis tendered medical certificates and a report
outlining the results of the CT scan.
[17] On 27 May 2013 Ms Ciuzelis advised Mr Jones that she was ready to return to work.
According to Ms Ciuzelis, Mr Jones told her that she had been replaced and not to bother
coming in. When Ms Ciuzelis said that she had a medical certificate stating that she was ready
to return to work, Mr Jones requested that she come into the office the next day to discuss the
matter.
[18] Upon arriving at work on 28 May 2013 Ms Ciuzelis provided Mr Jones with a medical
certificate, stating that:
“Ms Raquel Ciuzelis has a medical condition and was unfit for work from 10/15/2013
to 27/05/2013 inclusive.”1
[19] According to Ms Ciuzelis, she was told by Mr Jones that she was a liability and could
not return to work or be paid until the WorkCover claim was sorted. Ms Ciuzelis also
contended that Mr Jones offered to simply pay her annual leave and “be done with it”, which
she declined and left the premises.
[20] On 29 May 2013 Ms Ciuzelis received an email from WorkCover Queensland Claims
Representative stating:
“…I took a call from your employer today, they have advised that your medical
certificate ran out on 27 May 2013 and you turned up for work on 18 May 2013 to
which they sent you home.
After speaking to your employer they advised they sent you home as they require a
clearance certificate from your doctor advising you are fit for duty, but may not have
mentioned that to you yesterday…”
[21] Ms Ciuzelis was referred by her GP to a physiotherapist for mobility and conditioning
assessment and on 5 June 2013 received a clearance to return to work on 10 June 2013. After
receiving this certificate, and prior to 10 June 2013, Ms Ciuzelis telephoned Mr Jones and
told him that she was cleared to return to work from that date. Ms Ciuzelis also forwarded the
medical certificate to Mr Jones by facsimile on 5 June 2013 and again telephoned Mr Jones to
ensure that it had been received. During this telephone call Mr Jones told Ms Ciuzelis that he
would need to consult with his solicitor and would get back to her.
[2014] FWC 5566
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[22] On 6 June 2013 Ms Ciuzelis telephoned Mr Jones after missing a call from him, and
was told that he had a purchaser for the business who had chosen to take on all employees
except Ms Ciuzelis, as she was away. Mr Jones terminated Ms Ciuzelis’ employment and paid
her two weeks wages in lieu of notice and her accrued annual leave. Ms Ciuzelis also received
an Employment Separation Certificate stating that the reason for separation was redundancy.
Ms Ciuzelis maintained that her position was not redundant because at the point of the sale of
Mr Jones’s business there was a casual employee filling her position and the position was still
in existence.
[23] In response to questions from the Commission, Ms Ciuzelis said that her Workers’
Compensation claim had ceased and she did not take it forward because of the legal fees
involved. Under cross-examination Ms Ciuzelis agreed that her Workers’ Compensation
claim was rejected.
[24] Ms Ciuzelis initially received some Workers’ Compensation payments in respect of
the injury. Ms Ciuzelis also said that despite applying for a number of positions after her
dismissal, she did not obtain employment until 2 December 2013. Ms Ciuzelis received a total
amount of $2,722.15 from Centrelink for the period September until 10 December 2013. Her
weekly wage during the period of her employment was $880 per week gross.
[25] According to Mr Jones’ statement, the business had been for sale since March 2013. A
message was received that Ms Ciuzelis would be off work from 10 May 2013 and on 15 May
2013 Ms Ciuzelis responded to a text message from another employee, and stated that she had
a misaligned vertebrae.
[26] On 22 May 2013 Mr Jones received an email from WorkCover advising that Ms
Ciuzelis had made a claim for a back injury suffered in October 2012 and later that date was
amended to July 2012. Mr Jones said that he was unaware that Ms Ciuzelis had ever suffered
a back injury. Ms Ciuzelis had no accrued sick leave as she had taken it progressively, and her
pay ceased. A casual employee was hired to fill Ms Ciuzelis’ position as her return date was
unknown.
[27] On 22 May 2013 Mr Jones also received an offer via his broker for the sale of the
business. In the initial stages of due diligence the sale was required to be kept confidential.
Staff, including the casual employee, became aware of the sale on or about 15 June 2013. On
17 June 2013 Mr Jones was informed that the sale would definitely proceed and it was
completed on or about 19 June 2013 with settlement being effected on 20 June 2013. The
business was purchased by Greencross Limited and staff were informed on that date that the
settlement would proceed and were offered contracts of employment by Greencross. All staff
were offered contracts of employment and accepted them. Ms Ciuzelis was not offered a
contract of employment by Greencross.
[28] Mr Jones said that Greencross required the business to be delivered as a going concern
and all staff performing duties were offered employment. Greencross had no obligation to hire
staff, but wanted to hire all staff currently doing work in the business.
[29] Mr Jones tendered information from a business broker and from Greencross
confirming that the completion date for the sale was 19 June 2013. Greencross also provided a
statement tendered by Mr Jones confirming that Ms Ciuzelis was not offered employment
[2014] FWC 5566
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following the completion date and her name was not included on a list of transferring
employees contained in a schedule to the agreement for sale of the business.
[30] Mr Jones initially said in his written statement that Ms Ciuzelis’ certificate clearing
her to return to work was received on 6 July 2013 but agreed in his oral evidence to the
Commission that the certificate was received on 6 June 2013. Upon receiving the certificate,
Mr Jones telephoned Ms Ciuzelis and told her that the business had been sold and that she
was no longer required. According to Mr Jones, as he no longer owned the business and Ms
Ciuzelis was now fit for work, she was made redundant.
[31] Mr Jones said that there was no opportunity during the due diligence period to protest
about who was offered employment by Greencross and who was not. Mr Jones also said that
he was asked for a list of employees doing the jobs, and there was a casual employee doing
Ms Ciuzelis’ job on the day he was asked to provide the list. In response to a question from
the Commission, Mr Jones agreed that he had known on 5 June 2013 that Ms Ciuzelis would
be fit to return to work on 10 June 2013 and had not told Greencross that this was the case,
notwithstanding that the completion date for the sale of the business was 19 June 2013.
[32] Mr Jones said that when he broke the news to Ms Ciuzelis that she had not been
offered an employment contract, Ms Ciuzelis did not ask him to approach Greencross on her
behalf. Under cross-examination, the proposition was put to Mr Jones that he dismissed Ms
Ciuzelis before she was due to come back to work. Mr Jones said in response that Ms Ciuzelis
did not have a job because she was not going to be offered a contract by Greencross but he
could not “sack” her because she was on Workers’ Compensation. In response to the
proposition that a casual employee was filling Ms Ciuzelis’ position at the relevant time, Mr
Jones said that he was simply asked who was doing the jobs at that time.
[33] Greencross produced material in response to a notice to produce issued by the
Commission. Mr Jones attended a hearing at the Commission with a representative of
Greencross pursuant to the production of that material on 13 January 2014. The material is a
copy of the contract for sale of the business and offers of employment made to former
employees of Mr Jones. Given that Mr Jones signed the contract for sale and must therefore
be familiar with the material, I have taken that material into account.
[34] The contract for sale of the business is dated 7 June 2013. It is signed by Mr Jones and
a representative of Greencross, but there is no date under the signatures. It indicates that
former employees of Mr Jones were offered a range of positions described as Casual Sales
Representative, Full Time Sales Representative, Full Time Administration Assistant and Full
Time Groundsman.
[35] The contract for the sale of the business defines “Employees” as “Employees named in
Schedule 2”. The contract states that the respective periods of service of each employee are
set out in Schedule 2. Schedule 2 does not include any reference to Ms Ciuzelis. There is an
employee who is said to be a Casual Sales Representative with a start date of 7 June 2013.
There is an asterisk beside the name of that employee but no details of what that asterisk
indicates. The other casual employees on the list have start dates prior to the commencement
of Ms Ciuzelis’ absence from work. The contract indicates that Mr Jones is the business
manager for Greencross referred to in the contract as the person to whom employees are now
to report. Item 16.2 of the contract of sale is in the following terms:
[2014] FWC 5566
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“Purchaser’s obligations
16.1 Periods of employment
(a) The purchaser will notify the vendor in writing of on or before the Due Diligence
Date the names of any employees who the purchaser proposes to employ;
(b) The purchaser must offer each Employee whose name is notified to the vendor
employment on terms and conditions substantially similar to and on an overall basis
no less favourable than the Employee’s terms and conditions of employment with the
vendor and in substantially the same terms as the Employment Agreement in Schedule
2.”
[36] The Due Diligence Date is listed in Schedule 1 as 14 June 2013. The Completion Date
in that Schedule is listed as 19 June 2013.
[37] Mr Jones stated in his evidence to the Commission that his wife worked for the
business making plaques and was not offered employment by Greencross. Mr Jones further
stated that his wife and Ms Ciuzelis were the only persons not offered employment. He
further stated that his wife was on the list and Ms Ciuzelis was not. Perusal of Schedule 2 to
the contract of sale, which is said to be the list of employees and the contracts of employment
produced by Greencross, show that every employee on the list was offered a contract of
employment. As previously noted, Ms Ciuzelis’ name does not appear on the list.
Conclusions
Was Ms Ciuzelis’ dismissal genuine redundancy?
[38] I do not accept that Ms Ciuzelis’ dismissal was a genuine redundancy so that she is
prevented from making an application for an unfair dismissal remedy. Ms Ciuzelis was
dismissed on 6 June 2013. Mr Jones states that at that point, a casual employee was
performing her role and continued to do so after her dismissal. That casual employee was
offered ongoing work by Greencross upon purchase of the business from Mr Jones. The
documentary material in relation to the sale shows that a casual employee commenced the day
after Ms Ciuzelis’ dismissal.
[39] Regardless of when the casual employee commenced employment, it could not be said
that at the point of her dismissal, Mr Jones no longer required Ms Ciuzelis’ job to be done by
anyone. The job was being done by a casual employee who, on Mr Jones’ evidence, was
replacing Ms Ciuzelis while she was absent from the workplace due to an injury. If this was
not the case, the casual employee commenced employment the day after Ms Ciuzelis was
dismissed. It is irrelevant for these purposes whether Ms Ciuzelis suffered the injury at work
or whether she was in receipt of Workers’ Compensation payments. The simple fact of the
matter is that at the point she was dismissed, her job was required to be done.
[40] If I am wrong on that point, I am also satisfied that Ms Ciuzelis’ employment was
covered by a modern award which contained consultation provisions that applied in
circumstances where Ms Ciuzelis’ position was to be made redundant, and that Mr Jones did
not comply with the terms of those provisions. Mr Jones gave inconsistent evidence about the
dates upon which he was aware of the sale of his business and the impact on employees. After
considering his evidence I am of the view that it is more probable than not that at the point Mr
Jones dismissed Ms Ciuzelis, he knew that the business would be sold to Greencross and that
[2014] FWC 5566
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Greencross was not going to offer Ms Ciuzelis an employment contract. This was a matter
about which Ms Ciuzelis (and other employees) were entitled to be consulted. There was no
consultation with Ms Ciuzelis. That Ms Ciuzelis was absent from the workplace does not
remove that obligation.
Was there a valid reason for Ms Ciuzelis’ dismissal?
[41] In relation to the criteria in s.387, I am of the view that there was no valid reason for
Ms Ciuzelis’ dismissal. That Greencross did not offer Ms Ciuzelis a position in circumstances
where Mr Jones was the architect of the situation that Ms Ciuzelis was in, does not provide a
valid reason for dismissal.
[42] Ms Ciuzelis was dismissed on 6 June 2013. At the point she was dismissed, Ms
Ciuzelis was absent from the workplace due to an injury and Mr Jones knew that this was the
case. Mr Jones also knew that Ms Ciuzelis was cleared to return to work on 10 June 2013.
That Ms Ciuzelis had used all of her sick leave, is not evidence that her leave was
unauthorised. She had provided a medical certificate explaining her absence and the period of
the absence was approximately one month.
[43] Mr Jones disputed Ms Ciuzelis’ claim that the injury occurred at work. He was entitled
to do that and to dispute her claim for Workers’ Compensation payments in respect of the
injury. However, Mr Jones has provided no credible evidence in relation to the reasons why
he did not inform Greencross that Ms Ciuzelis was employed by the business and why he did
not include Ms Ciuzelis’ name on the list of employees he provided to Greencross as a
potentially transferring employee.
[44] I do not accept his submission that he was told to simply provide a list of employees
who were performing work at some particular date. There is nothing in the contract that
remotely suggests that this was the case. This contention is arguably contrary to the terms of
the contract. Greencross is a large employer with in-house legal expertise, as was apparent
from that Company’s involvement in these proceedings in response to the notices to produce
documents. It is highly improbable that Greencross would have told Mr Jones to only include
employees who were at work on a particular date or during a particular period or to exclude
employees who were absent on any form of leave from the list of employees to be provided
by Mr Jones as part of the Due Diligence process in connection with the sale.
[45] In the total absence of a credible explanation from Mr Jones about the reason for the
dismissal, and in light of his evidence that he could not sack Ms Ciuzelis until her claim for
Workers’ Compensation was rejected, I am left with no other possible conclusion but that Mr
Jones omitted Ms Ciuzelis’ name from the list of employees provided to Greencross as
possible transferring employees under the contract for sale, because she was absent from the
workplace. Ms Ciuzelis was absent because of an injury.
[46] I do not accept that the reason for the dismissal was because Greencross did not offer
Ms Ciuzelis a position, and that Greencross had discretion not to do so. That submission is at
odds with the terms of the contract for sale of the business. It also entirely overlooks the
simple facts of the matter which are that Ms Ciuzelis was not on the list of potentially
transferring employees because Mr Jones did not put her on that list.
[2014] FWC 5566
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[47] It is also the case that there was a casual employee on the list who started employment
on the day after Ms Ciuzelis’ dismissal. This employee is the only employee on the list who
has a start date that is consistent with Mr Jones’ evidence that at the point of the sale there
was a casual employee doing the work previously done by Ms Ciuzelis, and Ms Ciuzelis’
evidence that a casual employee who was doing her job was offered employment by
Greencross.
[48] The fact that this casual employee commenced employment the day after Ms Ciuzelis’
dismissal enhances the unfairness. It is probable that Mr Jones employed the casual employee
the day after he dismissed Ms Ciuzelis, and a few days before the date upon which he knew
that Ms Ciuzelis was cleared to return to work, and managed to secure employment for the
casual employee by including her name on the list he provided to Greencross. Even if
(contrary to the evidence of the sale agreement) the casual employee was employed at the
point Ms Ciuzelis went on sick leave, Mr Jones’ failure to include Ms Ciuzelis’ name on the
list he provided to Greencross, cannot be a valid basis for Ms Ciuzelis’ dismissal.
[49] The reasons given by Mr Jones for Ms Ciuzelis’ dismissal are not sound or defensible.
Those reasons are capricious. Accordingly, there was no valid reason for Ms Ciuzelis’
dismissal.
Other criteria
[50] Ms Ciuzelis was notified of the reason for her dismissal, although the reason suffered
from the deficiencies detailed above and was not a valid reason. Ms Ciuzelis was not
dismissed for reasons relating to her capacity or conduct and whether she was given an
opportunity to respond to such reasons is not relevant. There were no discussions relating to
the dismissal other than the telephone discussion during which Mr Jones effected the
dismissal. The question of whether Ms Ciuzelis was refused a support person is also not
relevant.
[51] Similarly, the dismissal did not relate to unsatisfactory work performance and the
issue of warnings is not relevant. The employer is a small business and undoubtedly this
factor, together with the absence of dedicated human resource management specialists, had an
impact on the procedures followed in effecting the dismissal. I note, however, that Mr Jones
managed to obtain advice to the effect that he could not dismiss Ms Ciuzelis while she was
absent on Workers’ Compensation. Unfortunately, he applied this advice by forming the view
that once a claim for Workers’ Compensation was rejected, he could dismiss Ms Ciuzelis with
complete impunity. There are no other relevant matters.
[52] On balance, I am satisfied that Ms Ciuzelis was unfairly dismissed and that she should
have a remedy for her unfair dismissal.
Remedy
[53] Ms Ciuzelis does not seek reinstatement. Reinstatement is also not possible in
circumstances where the business in which Ms Ciuzelis was employed has been sold to a third
party. On that basis I am satisfied that reinstatement is not appropriate and that an award of
compensation should be made. The remedy of compensation is dealt with in s.392 of the Act
in the following terms:
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“392 Remedy—compensation
Compensation
(1) An order for the payment of compensation to a person must be an order that the
person’s employer at the time of the dismissal pay compensation to the person in lieu
of reinstatement.
Criteria for deciding amounts
(2) In determining an amount for the purposes of an order under subsection (1), FWA
must take into account all the circumstances of the case including:
(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would have been
likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person
because of the dismissal; and
(e) the amount of any remuneration earned by the person from employment or
other work during the period between the dismissal and the making of the
order for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person
during the period between the making of the order for compensation and the
actual compensation; and
(g) any other matter that FWA considers relevant.
Misconduct reduces amount
(3) If FWA is satisfied that misconduct of a person contributed to the employer’s
decision to dismiss the person, FWA must reduce the amount it would otherwise order
under subsection (1) by an appropriate amount on account of the misconduct.
Shock, distress etc. disregarded
(4) The amount ordered by FWA to be paid to a person under subsection (1) must not
include a component by way of compensation for shock, distress or humiliation, or
other analogous hurt, caused to the person by the manner of the person’s dismissal.
Compensation cap
(5) The amount ordered by FWA to be paid to a person under subsection (1) must not
exceed the lesser of:
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(a) the amount worked out under subsection (6); and
(b) half the amount of the high income threshold immediately before the
dismissal.
(6) The amount is the total of the following amounts:
(a) the total amount of remuneration:
(i) received by the person; or
(ii) to which the person was entitled;
(whichever is higher) for any period of employment with the employer during
the 26 weeks immediately before the dismissal; and
(b) if the employee was on leave without pay or without full pay while so
employed during any part of that period—the amount of remuneration taken to
have been received by the employee for the period of leave in accordance with
the regulations.”
[54] There is no evidence that an order for compensation will affect Mr Jones. He has made
no submissions in relation to capacity to pay any amount awarded by the Commission. Ms
Ciuzelis has at all times indicated that she seeks the maximum compensation under the Act.
[55] There is no evidence upon which I could conclude that Greencross would not have
offered Ms Ciuzelis employment if her name was on the list of transferring employees
provided by Mr Jones. Contrary to Mr Jones’ evidence, there was no other employee to which
Greencross did not make an offer of employment. An offer was also made to a casual
employee who was performing the job that had been performed by Ms Ciuzelis either prior to
her dismissal or the day after. Ms Ciuzelis had a medical clearance to return to her full duties
before the completion date of the sale and had she been allowed to do so, there is no apparent
reason why she would not have been offered employment. I can see no reason why Ms
Ciuzelis would not have remained in employment for at least a 12 month period.
[56] Making allowance for contingencies such as that Ms Ciuzelis may have reinjured
herself or left employment for some other reason, or that Greencross may have declined to
offer her employment, or dismissed her for some reason, I have concluded that for the purpose
of calculating compensation it is reasonable to adopt a six month period. In that period, Ms
Ciuzelis would have earned an amount of $22,880.00.
[57] In relation to mitigation, I accept that Ms Ciuzelis made reasonable attempts to apply
for other positions. Ms Ciuzelis obtained another position on 2 December 2013, just over six
months from the date of her dismissal. Ms Ciuzelis was paid two weeks wages in lieu of
notice on termination of employment totalling $1,760.00. Ms Ciuzelis received an amount of
$2,722.15 in payments from Centrelink. These amounts are deducted. As Mr Jones pointed
out, any payments made to Ms Ciuzelis as a result of her Workers’ Compensation claim will
[2014] FWC 5566
13
be recovered by WorkCover as a result of the rejection of that claim. Accordingly I make no
deduction for such amounts. Given that Ms Ciuzelis’ dismissal was not for misconduct, I also
make no deduction on that basis.
[58] Accordingly, the amount of $18,397.85 less taxation at the appropriate rate is to be
paid to Ms Ciuzelis by Mr Jones within fourteen days of the date of this Decision. An Order
to this effect will issue with this Decision.
DEPUTY PRESIDENT
Appearances:
Ms R. Ciuzelis on her own behalf.
Mr J. Jones on behalf of the Respondent.
Hearing details:
2014.
Brisbane:
May 27.
Final written submissions:
28 May 2014
Printed by authority of the Commonwealth Government Printer
Price code C, PR554301
1 Exhibit 1 Statement of Raquel Ciuzelis Annexure “F”.
