1
Fair Work Act 2009
s 394 - Application for unfair dismissal remedy
Isabel De Ramirez
v
Inner West Skills Centre Inc t/as Inner West Skills Centre (In Liq) (No. 2)
(U2015/3754)
DEPUTY PRESIDENT SAMS SYDNEY, 20 NOVEMBER 2015
Termination of employment – application for unfair dismissal remedy – respondent in
liquidation – applicant granted leave by the New South Wales Supreme Court to proceed with
application subject to conditions – application not defended by respondent or liquidator –
evidence of applicant and other persons accepted – dismissal substantively and procedurally
unfair – reinstatement inappropriate – further leave by Court required to enforce orders -
whether order for compensation of any utility – further directions.
[1] This decision deals with an unfair dismissal application, lodged by Ms Isabel De
Ramirez (the ‘applicant’) on 6 March 2015, following her termination of employment by
Inner West Skills Centre Inc t/as Inner West Skills Centre (IWSC or the ‘respondent’) on 13
February 2015. Relevantly, the respondent was placed into voluntary liquidation on 22 May
2015.
[2] Following a jurisdictional hearing of the matter on 24 June 2015, I stayed the
applicant’s unfair dismissal application pending either, the granting of leave by a Court to
proceed with the application, pursuant to s 500(2) of the Corporations Act 2001 or the
discontinuance of the proceedings by the applicant; See: Isabel De Ramirez v Inner West
Skills Centre Inc t/as Inner West Skills Centre [2015] FWC 4263.
[3] On 26 June 2015, the Supreme Court of New South Wales (the ‘Supreme Court’)
issued an Order in the following terms:
‘On the undertaking of the plaintiff to pay the filing fee give leave to file in court the
originating process together with the plaintiff’s affidavit dated 26 June 2015.
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DECISION
E AUSTRALIA FairWork Commission
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Order pursuant to s 500(2) of the Corporations Act 2001 (Cth) as applied by s 64(2)(a)
of the Associations Incorporations Act 2009 (NSW) that the plaintiff have leave to
proceed with her application in proceeding no U2015/3754 in the Fair Work
Commission against Inner West Skills Centre Inc (“the Company”), on condition that
the plaintiff not seek to enforce any judgment or award against the assets of the
Company without further leave of the Court.’
[4] Following advice of this Order, I issued directions for the parties, including the
respondent’s liquidator, BRI Ferrier (NSW) Pty Ltd Chartered Accountants (‘BRI Ferrier’), to
file and serve any evidence or materials on which they relied, in respect to the question of
whether the applicant’s dismissal was ‘harsh, unjust or unreasonable’, within the meaning of s
387 of the Act. The matter was listed the matter for hearing on 11 September 2015.
[5] Following the issuing of those Directions, BRI Ferrier wrote to my chambers in the
following terms:
‘I refer to the Directions issued by the Fair Work Commission (“FWC”) on 7 July 2015
and to my letter to you dated 23 June 2015 (“Previous Letter”). …
I understand that on 26 June 2015, the Supreme Court of New South Wales (“the
Court”) granted leave in favour of Ms Isabel de Ramirez to proceed with her
application in the aforementioned proceedings against the Association. …
Following the Court’s leave, I received a copy of the FWC’s Directions requesting that
the Association to file [sic] an outline of submissions for the upcoming hearing on the
matter set for 11 September 2015. In this regard, I refer you to my Previous Letter
advising that there are insufficient funds and evidence available in the Liquidation for
the Association to be represented in this matter. Accordingly, I confirm that the
Association will not be filing any further submissions, nor will it be represented
at the upcoming hearing.
I understand that the matter will continue in the absence of any submissions or
appearance from the Association. As per my Previous Letter, I agree to be bound by
the decisions of the FWC and the Court.
I note that the order of 26 June 2015 requires Ms de Ramirez to obtain further leave
from the Court in relation to any judgement that she may be awarded against the
Association. In this regard, I note that the normal priorities set out in Sections
556(1)(e)-(h) of the Corporations Act 2001 will apply to any judgement made in
favour of Ms de Ramirez.
Per my previous letter, I confirm that I do not anticipate that there will be sufficient
funds to pay all employee entitlements owed by the Association; rather only wages
and superannuation liabilities (or part thereof) may be discharged.
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In respect of other entitlements, the former employees, including Ms de Ramirez (if
successful), may be entitled to claim through the Department of Employment’s
(“DOE”) Fair Entitlements Guarantee (“FEG”) scheme. Again, the DOE forms their
own decision as to which entitlements they will ultimately fund, and I encourage Ms
de Ramirez to make her own enquiries as to whether her “potential” claim would be
acceptable to the DOE under the FEG scheme.
Please note that the FEG scheme does not cover superannuation claims. As such, any
return on outstanding superannuation will come from the Association by way of
dividend, to the extent that funds are available [emphasis as in original].’
[6] At the hearing on 11 September 2015, the applicant was represented by Ms A Gibbons
of Counsel, with permission having previously been granted, pursuant to s 596 of the Act. As
foreshadowed, neither the respondent or its liquidator appeared or were represented.
THE EVIDENCE
[7] Witness statements from the following persons were filed in support of the applicant’s
case:
the applicant;
Ms Rose Guisa, a former employee of the respondent;
Mr Thomas Piotrowski, formerly a Psychologist for the respondent; and
Mr Clyde Livingstone, Former Chairman of the Board of the respondent.
As there was no appearance for the respondent and obviously no contradictor to this evidence,
I intend to accept this evidence in determining this matter.
The applicant
[8] In her evidence, the applicant set out a number of roles in which she had worked, and
training she had undertaken, since commencing her employment with the respondent in July
2007. Following the unexpected death of the respondent’s CEO, a new CEO, Ms Cheryl
Williams, was appointed in September 2014. From November 2014, a number of employees
were made redundant and/or were dismissed.
[9] The applicant described a number of meetings she had with Ms Williams in December
2014, in which Ms Williams questioned her as to whether existing staff remained in contact
with staff, who had been made redundant or had been dismissed. While the applicant said she
was unaware of any such contact, she felt uncomfortable by this questioning. In late
December 2014, the applicant met with Ms Williams and Mr Mark Zaia, Programs Manager.
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The applicant agreed with the respondent’s proposal to undertake a temporary three month
secondment to IWSC’s Disabilities Employment Services Department. Ms Williams told her
that if she did not like the role, she could return to her role in the Training Department. She
commenced in the new role, on or about 29 December 2014. This was confirmed in a letter
dated 5 January 2015. However, she was not given a revised position description or any new
key performance indicators.
[10] The applicant explained that on, or about 27 January 2015, there were major
renovations in the office area in the workplace. Mr Zaia asked her to assist with an archival
filing task. She agreed to do so. Mr Zaia advised her, the following day, that he was ready to
commence with that task. Ms Williams told her that she wanted the ‘filing done
alphabetically.’ The applicant agreed, assuming that she meant filing alphabetically within a
‘class’, in accordance with past practice. She and Mr Zaia and another co-worker completed
the archival filing in this fashion. She denied that Mr Zaia directed her to do it in any other
manner. The following day, the applicant was directed to attend Ms Williams’ office for a
meeting with herself and Ms Wendy Lipski, Finance Manager. A conversation took place in
words to the following effect:
Ms Williams: You failed to follow my instructions with regard to the filing you did
yesterday.
Applicant: Goodness, I understood that you meant to file alphabetically within
class. It would take me about half an hour to redo the boxes.
Ms Williams: There is no need to do that, you will get a letter by email.
Applicant: I will do it in my own time.
Ms Williams: No.
[11] The applicant said that she then left the office and as she closed the door, Ms Williams
and Ms Lipski ‘broke into laughter’. The applicant described feeling humiliated, embarrassed,
shocked and confused. She was handed a letter dated 2 February 2015 in the following terms:
‘This letter is in reference to some concerns, which we have had some initial
discussions about in regarding your performance.
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A meeting has been organised to give you the opportunity to discuss, respond and
defend yourself in relation to the allegation in more detail.
The allegations are:
On Wednesday the 28th January you failed to follow instructions in regard to
archiving training files. Despite being asked to file the documents in alphabetical
order you chose to disregard the instruction and filed them in ‘class order’. You
also filed to follow the instruction to NOT file the documents in ‘class order.’
On two occasions Mark Zaia, reinforced the directive that files needed to be filed
alphabetically.
As discussed with you the cost of failing to follow this directive has created delays in
the archiving process and the cost of redoing all of the work.
This however is not the first discussion you have had in regard to your performance.
Similar issues previously discussed are:
Failing to take the directive from Mark in regard to NOT interviewing clients in the
middle of the office
Failing to follow a directive to clear and file all documents on your desk and in
boxes surrounding your desk.
Failing to follow a directive in regard to not calling Renee Kemplin when asked by
BJ.
You are directed to attend a formal ‘right of reply’ meeting to be held on Thursday 5th
Feb 2014 [sic] at 11am at the IWSC Burwood office with Finance Manager Wendy
Lipski and myself.
You are invited to have a personal representative present at the meeting. Please advise
me prior to the meeting the name of your support person.
If we are able to satisfactorily resolve the concerns, there may not be any need for
further action. However, if we are not able to satisfactorily resolve the concerns, the
outcome of this meeting may be disciplinary action, which could include a warning or
termination of employment.
If you have any questions or queries about this process, please contact me to discuss.’
[12] The applicant denied she had acted in an inappropriate, intimidatory or unprofessional
manner after receiving this letter. She had never had any performance issues in the 7½ years
of her employment with the respondent. She had contacted the Commission and WorkCover
during her lunch break. She described the archiving issue as an isolated incident and noted
that she had immediately offered to remedy the error.
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[13] The applicant described a subsequent performance management process as
‘contrived’. She believed she was meeting her contract requirements and she had, in fact, been
paid a lump sum bonus payment, due to her job target achievements. She had received
positive performance assessments in the past.
[14] As to an allegation that she had interviewed clients in the middle of the office, the
applicant explained that there were four employees working in a space the ‘equivalent of a
corridor’. Mr Zaia’s room was the only one with a working computer in which to interview
clients. She had had discussions with clients at her desk and would assist them with job
searches and the creation of resumes and covering letters while waiting for the room to
become free. She would assist if a client reported issues with a computer or report it to IT.
From 3:00pm, she would ordinarily perform relief reception duties. In January 2015, she had
a conversation with Mr Zaia in words to the effect of:
Mr Zaia: You are using the interview room to interview clients?
Applicant: Of course yes but I do some non-private/personal inquiries at my
desk.
Mr Zaia: That’s fine it will not be long until we have enough rooms available.
Applicant: I am looking forward to that.
In February 2015, new offices with computers were made available.
[15] The applicant denied that she had failed to comply with a direction to clear her desk.
She had done this over a week, by downsizing eleven boxes to six, then to four, then to three,
then to two. On the second day of this process, Mr Zaia asked how the process was going. She
had replied that she expected to finish shortly and she was almost done. She believed Mr Zaia
accepted this explanation. It would have been apparent that she was reducing the boxes
around her desk. However, she was unable to clear the last two boxes, as she was asked to
assist with the archival task by Mr Zaia.
[16] The applicant denied the allegation that she failed to comply with a direction of Mr
Bejan Safi not to call Ms Rene Kemplen. Ms Kemplen had already been terminated by the
time Mr Safi had advised her not to contact her, which was after the applicant had emailed Ms
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Kemplen. She had provided email evidence of this to Ms Williams, but had not received a
response.
[17] The applicant said that when she arrived at work on Monday 3 February 2015, Ms
Williams called her into the office and directed her to leave the building, hand over her keys
and not take anything from her desk. Ms Williams declined her request to collect personal
effects and told her that she was suspended immediately, due to ‘yesterday’s behaviour’.
However, she did not indicate if she was on full pay or not. The applicant complied with these
directions and left immediately. After leaving, she contacted Mr Clyde Livingstone, the
Chairman of the Board and met with him later that day. He advised that while Ms Williams
had directed that she be suspended without pay, he had organised for her to be paid during her
suspension.
[18] The applicant received email correspondence on 3 February 2015 directing her to
attend a meeting with an independent investigator, Mr Brian O’Neill. She met with Mr
O’Neill on 6 February 2015 and handed him a letter. She did not accept the following
findings in his subsequent report, dated 10 February 2015:
‘[Ms Williams] acted in a professional, polite and calm manner towards Isabel Ramirez.
There is no evidence to suggest otherwise…
… I have formed the view that the evidence against Isabel on balance is quite
substantial and is to be believed. I formed the view that the evidence of Isabel is
somewhat wanting. It is clear from the evidence that Isabel has great difficulty in
following directions at work and seems to want to do things her way. That is the base
of the problem… These actions must cause considerable concern to the CEO and the
organization. People in the workplace are required to behave in a proper manner and
to be capable of following required directions from management.’
[19] The applicant complained that she had not received a copy of Mr O’Neill’s report at
the time and she was unaware as to whether the relevant witnesses were interviewed. Ms
Kemplen was not asked as to the nature of the applicant’s contact with her. The applicant did
not believe the process was transparent or independent.
[20] The applicant received a letter terminating her employment, dated 13 February 2015,
which was expressed as follows:
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‘I confirm that I have reviewed the report prepared by Mr O’Neill in respect of the
investigation which he undertook.
I have also reviewed and considered other relevant materials, including your letter to
me of 5 February 2015.
By way of brief background, I wrote a letter to you on 2 February outlining my
concerns with certain aspects of your work performance. I advised that a meeting had
been scheduled to discuss these matters in further details.
Your behaviour upon receipt of that correspondence caused further issues to be raised
with you, which I particularised in my letter to you of 4 February 2015.
A process was then put in place to review the totality of those matters. You were stood
down on full pay while that process was underway.
Had the matters in question been dealt with in the usual way, there was an expectation
that you would have received a warning together with a requirement to do your work
in an improved manner, with regard to specific issues.
However, consequent upon your receipt of the notification of the matters to be
addressed, you wrote a letter to me, expressing yourself in vitriolic terms and
demonstrating a rift in the working relationship between me and you.
The matters raised in your correspondence of 5 February were dealt with during the
course of Mr O’Neill’s investigations and his discussions with other employees who
work in your immediate vicinity.
None of the matters which were raised by you as factual incidents were found by Mr
O’Neill to be correct.
There being, in my opinion, no way that the employment relationship between me and
you can be adequately repaired, it is in the best interest of the organisation that your
employment be terminated today by the giving of four weeks’ notice.
Further to this, the organisation does not require you to work out your period of notice
and you should not return to the premises.
Any personal items will be packaged up and returned to you and appropriate payment
of your entitlements will be made to your bank account.’
[21] The applicant specifically denied there was a continued or real failure by her to follow
management directions. She had participated in the investigation in a forthright and honest
manner. She had been humiliated and embarrassed. She believed she could have been
returned to the workplace. She had never been counselled by her manager. The applicant
believed that Ms Williams had embarked on a process to reduce the number of employees at
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the Company, as a number of employees had already been terminated or made redundant.
There was no just reason for her dismissal.
Ms Rose Guisa
[22] Ms Guisa was employed by the respondent at the time she provided her statement. She
had been employed by the respondent at the same time as the applicant and had known her for
7½ years. She had never felt threatened, bullied or intimidated around the applicant. On the
contrary, she described the applicant as honest, hardworking and approachable, with excellent
problem-solving skills and great patience. She was calm and professional at all times. Ms
Guisa was aware of times in which the applicant had diffused hostile situations.
Mr Thomas Piotrowski
[23] Mr Piotrowski provided a document described as a character reference in support of
the applicant’s case. He had been employed as a Psychologist by the respondent from July
2013 to February 2015 and had worked directly with the applicant for three months. He had
subsequently maintained contact with her.
[24] Mr Piotrowski expressed surprise at any assertion by the respondent that the applicant
was a danger to others. On the contrary, he described her as trustworthy, professional and
with a strong work ethic. He had observed her behaving in a professional and respectful
manner at all times.
Mr Clyde Livingstone
[25] Mr Livingstone is the former Chairman of the respondent’s Board. He also provided a
document expressed as a character reference for the applicant. He has known the applicant
since she commenced employment with the respondent in 2007.
[26] Mr Livingstone described the allegations against the applicant as ‘uncharacteristic and
inconsistent with her professional reputation.’ Reports to him by management had described
her as hardworking and dedicated. The files of the respondent demonstrated that the applicant
had received accolades, bonuses, pay rises, management training and promotions. He had
never heard any negative feedback in relation to her client-based work.
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[27] Mr Livingstone said he was surprised to hear that the applicant had been suspended,
then dismissed from her employment. He had offered to mediate between the applicant and
Ms Williams, but this offer was repeatedly declined by Ms Williams. He had been told that
the investigator hired by Ms Williams, was a former associate of hers.
[28] Mr Livingstone believed that the applicant’s termination was poorly handled by Ms
Williams. After her dismissal, the Board had met in order to review and amend the
respondent’s Personal Grievance Policies and Procedures in order to guard against a similar
situation arising in the future. It was also proposed that the Board take a more active role in
future recruitment.
SUBMISSIONS
[29] Ms Gibbons made oral submissions at the hearing on 11 September 2015. She relied
particularly on the evidence of Mr Livingstone as establishing that the applicant was not
afforded procedural fairness or natural justice. While the respondent, in particular, Ms
Williams had embarked on a process in the lead up to the applicant’s dismissal, it was not a
fair process, despite Mr Livingstone offering suggestions to make the process fairer. The
dismissal had had a negative impact on the applicant’s reputation.
[30] Ms Gibbons submitted that the evidence demonstrated that the applicant was an
exemplary employee. Ms Williams had made bare assertions about the applicant’s
performance and conduct, which were not supported by the evidence. She suggested that Ms
Williams had ultimately dismissed the applicant because she had an ‘axe to grind’.
[31] Ms Gibbons explained that the applicant sought reinstatement in order to remedy any
injury to her reputation. It would also affect her entitlement to the Fair Entitlement Guarantee
(FEG). However, after some discussion with the Bench, particularly in relation to Blackadder
v Ramsey Butchering Services Pty Ltd (2005) 221 CLR 539 (‘Blackadder’), Ms Gibbons no
longer pressed the applicant’s reinstatement.
CONSIDERATION
[32] At this juncture, pursuant to s 396 of the Act, I dispose of any preliminary issues by
making the following findings:
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(a) the applicant was a national system employee and the respondent is a national
system employer, as defined (ss 13, 14);
(b) the applicant’s unfair dismissal application was lodged within the 21 day statutory
time period set out in s 394(2)(a) of the Act;
(c) as the respondent is not a small business, the Small Business Fair Dismissal Code
is not relevant in this case (s 396(c));
(d) the applicant’s dismissal was not a case of genuine redundancy (ss 382, 396(d));
(e) the applicant was a person protected from unfair dismissal in that:
(i) she had completed the minimum employment period (s 383); and
(ii) her rate of earnings was less than the high income threshold (ss 382(b)(iii),
The only matter remaining to be determined by the Commission is whether the applicant’s
dismissal was ‘harsh, unjust or unreasonable’ (s 385(b)), within the meaning of s 387 of the
Act. It is to these matters to which I now turn.
[33] Section 387 of the Act sets out the criteria that the Commission must consider in
determining whether a dismissal was ‘harsh, unjust or unreasonable’. It is expressed as
follows:
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
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(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.
[34] The meaning of the phrase ‘harsh, unjust and unreasonable’ is to be found in the well-
known quote from Byrne & Frew v Australian Airlines Ltd (1995) 185 CLR 410, where
McHugh and Gummow JJ said:
‘It may be that the termination is harsh but not unjust or unreasonable, unjust but not
harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the
concepts will overlap. Thus, the one termination of employment may be unjust because
the employee was not guilty of the misconduct on which the employer acted, may be
unreasonable because it was decided upon inferences which could not reasonably have
been drawn from the material before the employer, and may be harsh in its
consequences for the personal and economic situation of the employee or because it is
disproportionate to the gravity of the misconduct in respect of which the employer
acted’.
[35] As mentioned earlier, the only evidence presented in this case was evidence in support
of the applicant’s case. As this evidence has not been contradicted, that evidence stands
unchallenged. Accordingly, I accept the denials by the applicant of the allegations in relation
to her conduct and performance. I also accept her description of the unfair process embarked
on by the respondent leading up to her dismissal. While the evidence provided by Ms Guisa,
Mr Piotrowski and Mr Livingstone as to the applicant’s work performance, character and
demeanour was uncontested, their evidence was consistent with, and corroborated the
applicant’s claims of unfairness as to her dismissal and the real reasons for it. More
relevantly, I accept Mr Livingstone’s evidence that he had sought to assist in relation to the
dispute between Ms Williams and the applicant and that the Board amended its grievance
policy in response to the process that led to the applicant’s dismissal. This evidence tends to
support the applicant’s claims of procedural unfairness. I turn now to specifically address the
criteria set out in s 387 of the Act.
Was there a valid reason for the applicant’s dismissal (s 387(a))?
[36] A ‘valid reason’ must be ‘sound, defensible and well founded’, as set out in the
judgement of Northrop J in Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, in
which His Honour said:
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‘In its context in s 170DE(1), the adjective “valid” should be given the meaning of
sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or
prejudiced could never be a valid reason for the purposes of s.170DE(1). At the same
time the reasons must be valid in the context of the employee’s capacity or conduct or
based upon the operational requirements of the employer’s business. Further, in
considering whether a reason is valid, it must be remembered that the requirement
applies in the practical sphere of the relationship between an employer and an
employee where each has rights and privileges and duties and obligations conferred
and imposed on them. The provisions must “be applied in a practical, commonsense
way to ensure that the employer and employee are treated fairly.’
[37] As I have accepted the applicant’s denial of the allegations as to her conduct and
performance, it follows that I am satisfied that there was no valid reason for dismissal.
Moreover, in my opinion even if the reasons for dismissal, expressed by Ms Williams in her
letter of 2 February 2015 were true, they all seem relatively innocuous or trivial. On their
face, they certainly do not seem to me to form a sound basis for serious disciplinary action, let
alone dismissal.
Was the applicant notified of the reason(s) for her dismissal (s 387(b))?
[38] The applicant was allegedly notified of the reasons for her dismissal in the dismissal
letter dated 13 February 2015, which referred to the investigation of Mr O’Neill. I accept the
applicant’s evidence that she was not given a copy of the outcome of Mr O’Neill’s report at
the relevant time. Accordingly, I am not satisfied that the applicant was properly notified of
the reasons for her dismissal. This factor weighs in favour of a finding that the dismissal was
procedurally unfair.
Was the applicant given an opportunity to respond to any reason related to her capacity
or conduct (s 387(c))?
[39] After the incident relating to archiving of training files on 28 January 2015, the
applicant was called into a meeting with Ms Williams on 2 February and then attended what
Ms Williams described as a ‘right of reply’ meeting on 5 February 2015. The applicant was
placed on a performance improvement plan (described by the applicant as ‘contrived’), was
subject to an investigation by a third party (whose independence was questioned by the
applicant) and dismissed on 13 February 2015. While it appears that there was a nominal
attempt to provide the applicant with an opportunity to respond, the relatively short period
between the 2 and 13 February and the applicant’s suspicions as to the independence of Mr
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O’Neill, raises some doubt as to the genuineness of the process, such as to raise a question as
to whether the respondent was merely paying ‘lip service’ to giving the applicant a real and
genuine opportunity to respond; See: Wadey v Y.M.C.A. Canberra [1996] IRCA 568. This
weighs in favour of a finding that the dismissal was procedurally unfair.
Was there an unreasonable refusal by the respondent to have a support person present
(s 387(d))?
[40] On the evidence before the Commission, there was no refusal by the respondent to
allow the applicant to have a support person present at the relevant meetings. This is a neutral
factor in my consideration.
Was the applicant warned about unsatisfactory performance (s 387(e))?
[41] I accept the applicant’s evidence that she was not warned about her performance, prior
to February 2015. I also accept Mr Livingstone’s evidence that the respondent’s personnel
files record that the applicant was a valued, hardworking employee. Even if I did not accept
the applicant’s evidence that there were no issues with her performance, the relatively short
period between 2 February 2015 and the applicant’s dismissal on 13 February 2015, suggests
that the applicant was not given any reasonable opportunity to address and remedy any
performance issues. As I said earlier, Ms Williams’ issues were trivial, at best.
The degree to which the size of the respondent’s enterprise and its access to dedicated
human resources specialists affected the process leading up to the applicant’s dismissal
(ss 387(f), (g))
[42] The respondent was a not for profit employment services provider with 38 employees
at the time the applicant was dismissed. It did not have access to internal human resources
specialists, but did engage Mr O’Neill for the purposes of the investigation.
Other relevant matters (s 387(h))
[43] In my view, it is relevant that the Board amended its grievance procedures and
resolved to become more involved in the recruitment of employees in response to the
circumstances leading up to the applicant’s dismissal. This would corroborate the applicant’s
claim that the processes for handling her dismissal were inadequate and unfair.
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[44] Given these findings, it is clear that the applicant’s dismissal was both procedurally
and substantively unfair. Having considered the matters outlined above, I find that the
dismissal of the applicant was ‘harsh, unjust and unreasonable’, within the meaning of s 387
of the Act.
REMEDY
[45] I turn now to the provisions of ss 390-392 of the Act, which are as follows:
390 When the FWC may order remedy for unfair dismissal
(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the
payment of compensation to a person, if:
(a) the FWC is satisfied that the person was protected from unfair dismissal
(see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) The FWC may make the order only if the person has made an application under
section 394.
(3) The FWC must not order the payment of compensation to the person unless:
(a) the FWC is satisfied that reinstatement of the person is inappropriate; and
(b) the FWC considers an order for payment of compensation is appropriate in
all the circumstances of the case.
391 Remedy—reinstatement etc.
Reinstatement
(1) An order for a person’s reinstatement must be an order that the person’s employer
at the time of the dismissal reinstate the person by:
(a) reappointing the person to the position in which the person was employed
immediately before the dismissal; or
(b) appointing the person to another position on terms and conditions no less
favourable than those on which the person was employed immediately before
the dismissal.
(1A) If:
(a) the position in which the person was employed immediately before the
dismissal is no longer a position with the person’s employer at the time of the
dismissal; and
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(b) that position, or an equivalent position, is a position with an associated
entity of the employer;
the order under subsection (1) may be an order to the associated entity to:
(c) appoint the person to the position in which the person was employed
immediately before the dismissal; or
(d) appoint the person to another position on terms and conditions no less
favourable than those on which the person was employed immediately before
the dismissal.
Order to maintain continuity
(2) If the FWC makes an order under subsection (1) and considers it appropriate to do
so, the FWC may also make any order that the FWC considers appropriate to maintain
the following:
(a) the continuity of the person’s employment;
(b) the period of the person’s continuous service with the employer, or (if
subsection (1A) applies) the associated entity.
Order to restore lost pay
(3) If the FWC makes an order under subsection (1) and considers it appropriate to do
so, the FWC may also make any order that the FWC considers appropriate to cause the
employer to pay to the person an amount for the remuneration lost, or likely to have
been lost, by the person because of the dismissal.
(4) In determining an amount for the purposes of an order under subsection (3), the
FWC must take into account:
(a) 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 reinstatement; and
(b) the amount of any remuneration reasonably likely to be so earned by the
person during the period between the making of the order for reinstatement and
the actual reinstatement.
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
[2015] FWC 7983
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(2) In determining an amount for the purposes of an order under subsection (1), the
FWC 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 the FWC considers relevant.
Misconduct reduces amount
(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s
decision to dismiss the person, the FWC 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 the FWC 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 the FWC to be paid to a person under subsection (1) must
not exceed the lesser of:
(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;
[2015] FWC 7983
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(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.
[46] Ms Gibbons initially sought reinstatement of the applicant to her employment with the
respondent (which is in liquidation) in order to assist her in access to the FEG. However, as
noted above, Ms Gibbons acknowledged that the Commission does not have power to
‘nominally’ reinstate the applicant in the manner sought; See: Blackadder. In short, the
Commission is unable to reinstate the applicant to a position which no longer exists in a
company in liquidation. The applicant’s counsel made clear that access to the FEG was the
primary purpose of making this application. It was said that a finding of unfairness by the
Commission would assist in this respect, although I make no comment on this submission;
suffice to note that I have made findings that the applicant’s dismissal was unfair. For the
avoidance of doubt, I find that it would be inappropriate to reinstate the applicant (s
390(3)(a)).
[47] This leaves open the question as to whether the Commission should issue an order for
compensation. The Order of the Supreme Court makes clear that the applicant is restrained
from enforcing any ‘judgment or award against the assets of the Company without further
leave of the Court’. I am satisfied that an order of compensation is an ‘award against the
assets of the Company’ and, accordingly, its enforcement will require the applicant to apply
for further leave of the Court. However, my understanding of the Order, while the applicant is
restrained from enforcing such an order (unless leave of the Court is granted), the
Commission is not restrained or prohibited from making an order as to compensation.
[48] The applicant’s Counsel did not directly address the Commission as to the quantum of
compensation to be awarded in accordance with s 392 of the Act. In its letter to the
Commission, BRI Ferrier indicated that it anticipated that any order made by the Commission
as to compensation, would be subject to the usual priorities under the Corporations Act. There
is no evidence of the amount of, or availability of funds, arising from the respondent’s
liquidation. That said, I have no reason to doubt BRI Ferrier’s view that funds are likely to be
limited.
[2015] FWC 7983
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[49] While I consider it likely that any order for compensation made by the Commission
would be of limited utility, the applicant did not make full submissions as to remedy. Of
course, my earlier findings of unfairness may well be sufficient for the applicant’s purposes.
However, should the applicant wish to provide further submissions on this matter, she should
advise the Commission by no later than close of business, Friday 27 November 2015. If the
applicant advises that she wishes to make further submissions on remedy, with particular
reference to s 392 of the Act, I will issue directions for the filing of submissions on this
discrete matter. If no such advice is received by this date, I will form the view that it is not
appropriate for the Commission to make an order for compensation (s 390(3)(b)) and the file
will be closed, with no orders made.
DEPUTY PRESIDENT
Appearances:
Ms A Gibbons of Counsel for the applicant.
No appearance for the respondent.
Hearing details:
2015
Sydney:
11 September
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Price code C, PR574143
ORK WORK COMMISSION FAIR THE SEAL OF
