1
Fair Work Act 2009
s.394—Unfair dismissal
Alison Mulhallen
v
Roy Morgan Interviewing Services Pty Ltd
(U2017/177)
DEPUTY PRESIDENT GOOLEY MELBOURNE, 6 APRIL 2017
Application for an unfair dismissal remedy.
[1] Ms Alison Mulhallen was employed by Roy Morgan Interviewing Services Pty Ltd
from 1 November 2007. In her application, Ms Mulhallen alleged that she was dismissed in
December 2016 when Roy Morgan stopped offering her shifts. Roy Morgan denied
dismissing Ms Mulhallen and said she remained employed.
[2] Roy Morgan’s objection to Ms Mulhallen’s application was listed for hearing on 3
March 2016.
[3] At the commencement of the hearing, I sought clarification from Roy Morgan as to
which objections it pressed as it had advised that it objected to Ms Mulhallen’s application on
two additional grounds, namely if she was dismissed then her application was not lodged
within 21 days of the date of the dismissal and further, she was not protected from unfair
dismissal because as a casual employee she was not employed on a regular and systematic
basis. Mr James Yeatman, Group General Counsel and Head of Human Resources, who
appeared for Roy Morgan, advised that it was not pressing these objections.
[4] The matter was listed to deal only with the objections. Having clarified the matters in
dispute, I asked Mr Yeatman if Roy Morgan accepted that if I found that there was a dismissal
then that dismissal was unfair and the only issue that would need to be determined was
remedy. Mr Yeatman accepted that proposition but wanted it noted that if I found the
dismissal was unfair then it was prepared to reinstate Ms Mulhallen and wanted regard to be
had to that in any consideration of remedy. The parties agreed that I should hear and
determine the application not just the objection.
[5] After hearing from the parties I determined that the matter would proceed by way of a
conference.1
1 Ss.398 and 399 of the Fair Work Act 2009
[2017] FWC 1942
DECISION
E AUSTRALIA FairWork Commission
[2017] FWC 1942
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Ms Mulhallen’s evidence
[6] Ms Mulhallen said that when she commenced employment she was advised that she
must be available for a minimum of four shifts per week.
[7] She said that since 2014, Mr Euan Wilson, the Call Centre Manager, had issues with
her.
[8] Ms Mulhallen who worked on the NZ BP project had her shift on 30 November 2016
cancelled on short notice which also occurred on 1 December 2016. She said she attended the
office and was told by Mr Wilson that there was an issue arising from the CBA survey that he
would discuss with her the following week. The meeting in fact occurred that afternoon and
Ms Mulhallen was told that she had been ‘somewhat abrupt” during the interview but the
recording of the call was not played to Ms Mulhallen. Ms Mulhallen worked the next day on
the NZ BP project.
[9] Ms Mulhallen said she had not been offered any shifts since 9 December 2016. On that
occasion her shift was cancelled with less than four hours’ notice.
[10] Ms Mulhallen was told by Mr Wilson that the NZ BP project had finished for the year
and that she was not allowed to do CBA work. She gave evidence that she discovered on 19
December 2016 that there had been further NZ BP shifts on 16, 17, 18 and 19 December 2016
which were not offered to her.
[11] Ms Mulhallen said that she texted her supervisor on 14 December 2016 and left voice
messages for him on 16, 20 and 21 December 2016 and sent a further text message on 31
December 2016 but he did not respond. She attended the office on 3 January 2017 and met
with Mr Wilson who advised her that he did not receive the texts or messages. She asked Mr
Wilson why she had not got shifts when “new NZ BP shifts had been offered to interviewers
from 3/1/17, which then ran for 13 days straight.” Mr Wilson told Ms Mulhallen that she
would not be getting any of them because “I was not where I needed to be”. Mr Wilson told
her that shift allocation was done on three criteria: (1) attendance and punctuality, (2) IPR and
(3) attitude and performance. Ms Mulhallen responded by saying that she had only ever
cancelled two shifts in nine years of employment and she had only been late about twice a
year. Further, she said her IPR was above average and she had never been accused of having
an attitude problem in the seven years she had worked on the NZ BP project. Mr Wilson told
her that there would be no shifts for her. She said she used to work seven days a week every
week on NZ BP but two years ago this was reduced to 13-15 days per month. She said she
would have worked this job for 98% of her shifts. Mr Wilson told her that they had several
interviewers now for this job. Ms Mulhallen said this was only because Mr Wilson had
briefed more on it over the last few months. She said that shift numbers for NZ BP are
usually 8 to 22 interviewers but even when there had only been 8-9 on a shift she had always
been one of them.
[12] At the hearing Ms Mulhallen said that Mr Wilson told her that she would not be
getting anymore work.
[13] Ms Mulhallen was not questioned on this evidence.
[2017] FWC 1942
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Roy Morgan’s evidence
[14] Mr Wilson had provided a statement but he no longer worked for Roy Morgan. He
was not present at the hearing to be cross examined, so I have not had regard to his statement.
[15] Mr Yeatman, who was obliged to sign off on any dismissal, gave evidence that he had
not authorised the dismissal of Ms Mulhallen. He said that Ms Mulhallen had not been
offered work as there was not sufficient work for everyone. He said that people worked on
projects and they are given preference for work on that project over others who had not
worked on the project. Given that, Mr Yeatman was not able to explain why Ms Mulhallen
was not offered work on the project she normally worked on 16, 17, 18 and 19 December
2016. In response to Ms Mulhallen’s proposition that the project had continued in 2017 and
some employees were offered every shift Mr Yeatman said that in December there had been
70 interviewers on this project and in January there were only 40 interviews. He could not
however explain why Ms Mulhallen was not offered any shifts. He said that she was not
offered shifts did not mean she would not be offered shifts into the future.
Roy Morgan’s submissions
[16] Mr Yeatman said this was not a dismissal, there was simply no work for Ms Mulhallen
to do. She was not able to work on the CBA project because there had been a complaint. He
said therefore she could only work on the NZ job and there was insufficient work for all the
interviewers. He said that making this application was a tactic by Ms Mulhallen to compel
Roy Morgan to give her preference for work. He said that there was new work starting this
month.
Ms Mulhallen’s submission
[17] Ms Mulhallen said this was a dismissal because there was work in December and
every fortnight since 3 January 2016 and she was not offered any work. Further she submitted
that Roy Morgan had employed new interviewers and she was able to do that work. Ms
Mulhallen rejected the proposition that she could not work on the CBA job because of the
complaint. She acknowledged that she had been told there had been a complaint but as she
had not been able to listen to the interview, she had been denied an opportunity to respond to
the complaint.
Roy Morgan in reply
[18] Roy Morgan disputed that it had engaged interviewers to replace Ms Mulhallen. It said
that it had employed, on fixed term contracts, interviewers for a particular project but that was
because they could not meet their contractual obligations with their existing pool of
interviewers. That job has come to an end.
Consideration
[19] I am satisfied that Ms Mulhallen was dismissed by Roy Morgan on 3 January 2017
when Mr Wilson told her that she would not be offered any more shifts. While I accept, that
there had been a reduction in the shifts available, that did not explain why Ms Mulhallen who
had worked on regular and systematic basis for seven years was not offered any shifts at all. I
am satisfied that despite Mr Wilson not following the Roy Morgan procedure in dismissing
[2017] FWC 1942
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Ms Mulhallen that did not change what happened. There was no suggestion that he did not
have the authority to refuse to offer Ms Mulhallen shifts and she was entitled to treat his
advice to her as dismissal from her employment.
Was the termination of employment harsh, unjust or unreasonable?
[20] In considering whether it is satisfied that a dismissal was harsh, unjust or
unreasonable, the Fair Work Commission must take into account the following:
s387(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);
[21] Mr Yeatman accepted that there was not a valid reason for the dismissal and this
concession was properly made. I am satisfied on the evidence before me that there was no
valid reason for the dismissal.
s387(b) whether Ms Mulhallen was notified of that reason;
[22] Mr Yeatman accepted that Ms Mulhallen was not notified of the reason before the
decision was made and that is consistent with the evidence before me.
s387(c) whether Ms Mulhallen was given an opportunity to respond to any reason
related to the capacity or conduct of the person;
[23] Mr Yeatman accepted that Ms Mulhallen was not given an opportunity to respond to
any reason for the dismissal.
s387(d) any unreasonable refusal by the employer to allow Ms Mulhallen to have a
support person present to assist at any discussions relating to dismissal;
[24] There was no refusal to allow Ms Mulhallen a support person.
s387(e) if the dismissal related to unsatisfactory performance by the person—whether
Ms Mulhallen had been warned about that unsatisfactory performance before the
dismissal;
[25] The dismissal did not relate to unsatisfactory performance.
s387(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;
[26] There was no evidence or any submissions on this criterion.
s387(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;
[27] There was no evidence or any submissions on this criterion.
[2017] FWC 1942
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s387(h) any other matters that the Fair Work Commission considers relevant.
[28] Ms Mulhallen was a long standing employee. She made repeated attempts to find out
why she was not offered work. The only reason the meeting with Mr Wilson took place was
because she went to work to meet him. Even then he provided her with no reasonable
explanation as to why such a long standing employee was not receiving any work.
Conclusion
[29] I am satisfied that the dismissal was harsh and unjust and unreasonable and so much
was conceded by Mr Yeatman.
Remedy
[30] Ms Mulhallen is not seeking reinstatement of her employment despite Mr Yeatman
offering to reinstate her. Mr Yeatman’s offer did not come with any guarantee of work. He
said she would be treated as other casual employees. Ms Mulhallen submitted that she did not
have any confidence in returning. I am satisfied therefore that reinstatement would not be an
appropriate remedy.
[31] In assessing any amount in lieu of reinstatement, the Fair Work Commission is
required to have regard to the following:
(a) the effect of the order on the viability of the employer’s enterprise;
[32] Mr Yeatman submitted that the maximum order for compensation would not affect the
viability of the business.
(b) the length of the person’s service with the employer;
[33] Ms Mulhallen was a long serving employee.
(c) the remuneration that the person would have received, or would have been likely to
receive, if the person had not been dismissed;
[34] Ms Mulhallen said that she worked 5-7 shifts per week. Mr Yeatman said that this
practice would not continue and that the maximum number of shifts that would be worked
would be five shifts per week. I am a satisfied that Ms Mulhallen would have remained in
employment with Roy Morgan for at least another two years. While I accept that her shifts
may fluctuate there was no evidence that her income would be less than she had been earning.
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of
the dismissal;
[35] Ms Mulhallen gave evidence of her attempts to find alternative work. I see no reason
to reduce the amount of compensation to be paid as I am satisfied that she has made
reasonable attempts to mitigate any loss suffered.
[2017] FWC 1942
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(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;
[36] Ms Mulhallen had another job at the same time as she worked for Roy Morgan. She
took this position because she was concerned about her job security at Roy Morgan. This job
did not conflict with her availability for work with Roy Morgan. I therefore do not have
regard to it in making an order for compensation. She has not had any other employment in
this period.
(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;
[37] I do not anticipate that Ms Mulhallen will earn any monies in this period.
(g) any other matter that the Fair Work Commission considers relevant.
[38] I will deduct an amount of 15% for the possibility that in the 2 years Ms Mulhallen
may have been made redundant or had her shifts reduced by such an amount that she chose to
resign.
Conclusion
[39] I consider that compensation is appropriate. The evidence established that in the
previous six months Ms Mulhallen earned $17,497.87 plus superannuation. The amount of
compensation payable to Ms Mulhallen when applying the Spriggs formula will exceed the
compensation cap. As a result, I am required to reduce the amount to the cap.
[40] I therefore order that Roy Morgan pay Ms Mulhallen $17,497.87 subject to deduction
for taxation in accordance with law and $1,662.30 to her nominated superannuation fund
within 21 days of the final order in this matter.
DEPUTY PRESIDENT
Appearances:
A. Mulhallen on her own behalf.
J. Yeatman for the Respondent.
Hearing details:
2017.
Melbourne:
3 March.
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Price code C, PR591636
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