1
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Adriana Stevens
v
Horsley Park Supermarket Pty Ltd T/A Carlo's IGA Horsley Park
(U2017/4619)
COMMISSIONER CAMBRIDGE SYDNEY, 12 SEPTEMBER 2017
Unfair dismissal - absence from work without approval for leave - alleged abandonment of
employment - refusal to attend for work as instructed - unreasonable refusal to grant annual
leave - no valid reason for dismissal - significant procedural deficiencies - harsh, unjust and
unreasonable dismissal - compensation Ordered.
[1] This matter involves an application for unfair dismissal remedy made pursuant to
section 394 of the Fair Work Act 2009 (the Act). The application was lodged at Sydney on 28
April 2017. The application was made by Adriana Stevens (the applicant) and the respondent
employer is Horsley Park Supermarket Pty Ltd T/A Carlo’s IGA Horsley Park (ABN: 41 144
514 410) (the employer).
[2] The application indicated that the date that the applicant’s dismissal apparently took
effect was 10 April 2017. Consequently, the application was made within the 21 day time
limit prescribed by subsection 394 (2) of the Act.
[3] The matter was not resolved at conciliation, and it has proceeded to arbitration before
the Fair Work Commission (the Commission) which has involved a Hearing conducted in
Sydney on 8 August 2017. Prior to the Hearing, the Commission granted permission pursuant
to s. 596 of the Act, for either Party to be represented by lawyers or paid agents.
[4] At the Hearing, Ms M Nasser, from Rochforts Workplace Solutions, appeared for the
applicant. Ms Nasser called the applicant as the only witness to provide evidence in support of
the unfair dismissal claim. The employer was represented by Ms N Prestia, a lawyer from
Master Grocers Australia Limited (MGA). Ms Prestia called a total of five witnesses who
provided evidence on behalf of the employer.
Factual Background
[5] The applicant had worked for the employer for about 5 years and 3 months. The
applicant was initially engaged as a casual retail assistant, and she was subsequently
converted to full-time employment. In April 2016, the applicant was promoted to the position
of Duty Manager at the employer’s retail store located in the Sydney suburb of Horsley Park.
[2017] FWC 4626
DECISION
E AUSTRALIA FairWork Commission
[2017] FWC 4626
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[6] The employer is part of a group of Companies (Cavallaro IGA Group), which operate
a number of small supermarket retail stores under the name of “Carlo’s IGA”. The employer
has approximately 30 employees.
[7] In October 2016, the applicant completed an application for leave form and provided it
to the Horsley Park Store Manager, Ms K Emerson. The applicant had sought to take leave
during the 2016 - 2017 Christmas and New Year period, and her initial request for leave was
denied by Ms Emerson.
[8] It should be acknowledged that retail business operations such as the Horsley Park
IGA store, would usually have increased business demands at “holiday times” such as
Christmas – New Year and Easter. Therefore, the employer generally promulgated these
holiday periods as leave “block-outs” whereby it would generally not authorise the taking of
leave during these periods of increased business operation.
[9] After some discussion between the applicant and Ms Emerson, an arrangement was
agreed upon whereby the applicant would be provided with approval to take a shorter period
of leave covering just the period around New Year’s Eve. Consequently, on 18 October 2016,
Ms Emerson signed the authorisation section of the application for leave form, and granted
approval for the applicant to take leave between 28 December 2016 and 6 January 2017.
[10] On 12 January 2017, the applicant completed another application for leave form
seeking approval to take annual leave from 10 to 21 April 2017. There was considerable
divergence in the evidence about the detail of further discussions that occurred between the
applicant and Ms Emerson about her application for the April 2017 leave. However, it was
clear that Ms Emerson did not at any time, provide authorisation for the applicant’s request
for the April 2017 leave.
[11] By 23 January 2017, it became clear that Ms Emerson would not provide authorisation
for the applicant’s April 2017 leave request for two reasons. Firstly, the period for which the
April leave was requested coincided with the Easter leave block-out, and secondly, Ms
Emerson was leaving the Horsley Park store and relocating to Queensland. Therefore Ms
Emerson would not be the relevant Store Manager at the time that the applicant had sought
leave, April 2017.
[12] On 23 January 2017, Ms Emerson sent an email to Mr Philip Barbaro the employer’s
General Manager, which relevantly stated;
“For your authorisation I am sending you a copy of… Adriana Stevens holiday form.
Adriana is wanting the week leading into Easter and the week after Easter apparently
her Thailand holiday is paid for as well.”1
[13] At this time, late January 2017, the applicant was aware that her April leave request
had not been authorised by Ms Emerson, but instead it had been referred to Mr Barbaro.
There was no recorded response from Mr Barbaro to the email of 23 January 2017 from Ms
Emerson.
[14] On 17 March 2017, as part of her preparations for departure from the Horsley Park
store, Ms Emerson sent an email to the employer’s HR Officer, Ms Aksu which inter alia,
mentioned the applicant’s April leave request. This email relevantly stated:
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“Adriana has put in for annual leave right on Easter that’s why I haven’t authorised it
and her holiday was paid for as well. So Meat and Fresh Produce is covered as for
Adriana is [sic] a matter off [sic] if Zac can do without her.”2
[15] On 20 March 2017, Ms Aksu sent an email that was addressed to both Mr Barbaro and
to the employer’s business Director, Ms Antoinette Cavallaro. This email referred to a number
of applications for annual leave forms made by various employees, including that made by the
applicant in respect to the April leave. Relevantly, this email included the following text:
“Adriana Stevens - has requested 8 days annual leave - Zac has confirmed he needs
2 Duty Managers and if this is sorted before Adriana goes on leave it is not a problem
- however if we do not have cover for the store, he really needs her to assist him.
Antoinette/Philip what are your thoughts regarding this?
I will wait for all parties to respond before responding to the employee’s [sic]”3
[16] Ms Cavallaro instructed Ms Aksu to inform the applicant that her request for annual
leave in April had been denied. On 22 March 2017, Ms Aksu telephoned the applicant and
advised her that her April leave application had been denied. This advice then caused the
applicant to telephone firstly Mr Barbaro, and then Ms Emerson, seeking clarification about
the apparent rejection of her request for April leave. The applicant received little or no
clarification from either Mr Barbaro or Ms Emerson.
[17] On 29 March 2017, the applicant had a discussion with the Acting Manager of the
Horsley Park store, Mr Zac Olsen. During this conversation Mr Olsen confirmed that the
applicant’s request for April leave had been refused. The applicant became physically upset
and unwell in response to the confirmation that her April leave had been denied. The
applicant left the workplace and she attended a medical practitioner who provided her with a
sickness certificate covering three days absence from work.
[18] Once the applicant had returned to work, she made arrangements to meet with Ms
Cavallaro to discuss her heightened concerns regarding confirmation that her April leave had
been denied. On about 5 April 2017, the applicant met with Ms Cavallaro who attended at the
Horsley Park store. During this discussion, the applicant told Ms Cavallaro that she would be
unable to make any rearrangements for her trip to Thailand, and that she was not prepared to
lose over $4,000 if she did not proceed on her planned holiday. Ms Cavallaro reaffirmed that
the applicant’s request for the April leave had been refused, and she warned the applicant that
if she did not come to work during the Easter period her employment may be terminated. At
the conclusion of the meeting the applicant believed that her employment would be
terminated on and from about 10 April 2017, if she did not attend for work as rostered during
the Easter period.
[19] The applicant worked as rostered on Saturday, 8 April, and at the end of that
engagement she handed in her store keys to another employee. The applicant did not attend
for work on 10 April, or any time thereafter, and she undertook her holiday to Thailand as had
been planned.
[20] The applicant returned to Australia, and on 24 April 2017, she sent an email to Ms
Aksu4 which indicated that she had not received a termination letter, and she requested that
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such written advice be issued as a matter of urgency. On 26 April 2017, the applicant sent
another email to Ms Aksu5 requesting a separation certificate, and that her termination
payment be processed. On 28 April 2017, agents acting on behalf of the applicant filed her
claim for unfair dismissal remedy.
[21] On 9 May 2017, the MGA acting on behalf of the employer, filed an employer’s
response, Form F3. There were two curious documents attached to the employer’s Form F3.
The first of these documents was a letter dated 13 April 2017, headed “RE: Unexplained
absence” which the employer said that it had sent to the applicant’s home address by ordinary
mail. There was a second letter dated 21 April 2017, headed “Re: Termination of
employment - Absence From Work” which the employer said it had also sent to the
applicant’s home address by ordinary mail. Strangely, the applicant did not receive either of
these letters and the first time that the applicant sighted these letters was when they were
provided with the employer’s response Form F3.
[22] Although the termination of employment letter dated 21 April 2017, indicated that all
outstanding entitlements owing to the applicant would be paid during the next pay cycle,
payments were not made to the applicant until approximately 12 May 2017. Further, there is
apparently ongoing contest as to the correct calculation of alleged outstanding entitlements.
Final payment of wages did not include any period of notice, and the applicant was paid
wages only up until 8 April 2017.
[23] Following the dismissal, the applicant has attempted to find alternative employment
without success. Further, the applicant stated unequivocally that she has not received any
remuneration from any form of employment since her dismissal.
The Case for the Applicant
[24] Ms Nasser, who appeared for the applicant, made some oral submissions during the
Hearing, and she provided documentary material in the form of an outline of submissions
together with written reply submissions. Ms Nasser submitted that the dismissal of the
applicant was unfair.
[25] The submissions made by Ms Nasser asserted that the employer unreasonably denied
the applicant’s request for the April leave. Ms Nasser stressed that the leave request had been
made by the applicant on 12 January 2017, and that the requirement of the employer for the
applicant to change her travel plans on 6 April 2017, was unreasonable.
[26] Ms Nasser submitted that although the applicant proceeded to take leave without
approval, the employer was not able to apply the prospect that the applicant had abandoned
her employment. Ms Nasser said that the termination of employment on the basis of
abandonment involved a punishment that did not fit the crime.
[27] Ms Nasser made further submissions which were highly critical of the procedures that
the employer had followed in dealing with the applicants leave request. Ms Nasser said that
the employer had adopted a process that was, “ill-handled and mismanaged overall”. Ms
Nasser also made submissions which criticised the documentation that had allegedly been sent
to the applicant’s home address and which was first sighted by the applicant when she had
been provided with the Form F3.
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[28] Ms Nasser also submitted that there was not a valid reason for the dismissal of the
applicant because the requirement for her to change her dates for travel at short notice would
have involved a significant loss of money and was therefore unreasonable.
[29] It was also submitted by Ms Nasser that the applicant had made a request for leave on
12 January and that the employer had mismanaged the process for dealing with that request as
it passed through so many different hands and no one actually took responsibility to properly
deal with the request until four days before the applicant was due to leave for Thailand. Ms
Nasser made stringent criticism of what she described as the mismanagement by the employer
of its employment practices, and that the ultimate denial and then confirmation of the denial
of the applicant’s leave request was described by Ms Nasser to be a “circus”.
[30] In summary, Ms Nasser submitted that the dismissal of the applicant was unfair. Ms
Nasser said that the dismissal was without valid reason and without proper process. Ms
Nasser submitted that the applicant had a reasonable expectation of continuing employment
and she sought compensation as remedy for her unfair dismissal.
The Case for the Employer
[31] The employer was represented by Ms Prestia from the MGA. Ms Prestia submitted
that the dismissal of the applicant was not harsh, unjust or unreasonable. Ms Prestia relied
upon a written outline of submissions which she supplemented with further oral submissions.
[32] The submissions made by Ms Prestia asserted that the employer had valid reason for
the dismissal of the applicant. Ms Prestia said that the employer had reasonable business
grounds to deny the applicant’s request for the April leave. Further, Ms Prestia said that the
refusal to approve the April leave had been clearly communicated to the applicant from
January 2017.
[33] According to the submissions made by Ms Prestia, despite the clear communication to
the applicant that her leave had been denied she absented herself from the workplace and
thereby plainly disobeyed a lawful and reasonable direction of the employer. Ms Prestia
submitted that the applicant’s failure to comply with the reasonable and lawful direction of
the employer constituted misconduct, and that misconduct represented valid reason for
dismissal.
[34] It was further submitted by Ms Prestia that the applicant had been notified of the
reason for her dismissal and the employer had sent two letters to the applicant which informed
her of the misconduct and the reason for the termination of her employment. Ms Prestia
asserted that the applicant had been more than adequately notified of the reason for her
termination.
[35] Ms Prestia further submitted that the applicant had been given an opportunity to
respond during the meeting with Ms Cavallaro on or about 5 April, when the applicant was
informed that her employment was in jeopardy should she absent herself from the workplace
without permission. Ms Prestia stressed that during that meeting the applicant had stated
words to the effect that she would be taking leave whether or not it had been approved by the
employer. According to the submissions made by Ms Prestia, the applicant clearly had
responded to the employer’s warning that her employment was in jeopardy if she decided to
take unapproved leave.
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[36] The submissions made by Ms Prestia also asserted that the employer had not
unreasonably refused to allow the applicant to have a support person present during the
discussion that occurred with Ms Cavallaro. Further, Ms Prestia said that the applicant had
been warned about the consequences if she engaged in a course of conduct in relation to her
unapproved annual leave application.
[37] Ms Prestia made further submissions which recognised that the employer was a
medium size business and therefore some allowance should be made for a degree of
informality, and any perceived imprecision with employment related matters should be
appropriately accommodated. Ms Prestia also stressed that as a result of the applicant’s
disobedience and her absence during the busy Easter period, the employer was put to
significant financial detriment, and it risked losing revenue and customer satisfaction due to
understaffing. Ms Prestia also said that the applicant had showed a lack of remorse or
consideration for the consequences of her actions and the impact of those actions upon the
employer’s business.
[38] It was further submitted by Ms Prestia that the issue regarding alleged underpayment
and the ongoing contest about alleged outstanding entitlements was not a matter that should
impact upon the consideration of the unfair dismissal claim. Ms Prestia submitted that there
was also some residual factual conflict about the applicant working in alternative
employment.
[39] In summary, Ms Prestia submitted that there was a valid reason to terminate the
employment of the applicant, and the employer had afforded the applicant procedural fairness.
Ms Prestia submitted that the conduct of the applicant clearly breached the trust and respect
that was necessary between an employer and an employee. Ms Prestia submitted that if there
were any deficiencies in the process that the employer had adopted for dealing with the
termination of the applicant’s employment, those matters were outweighed by the valid reason
for the dismissal involving the applicant being absent from work without approval and in the
knowledge of the consequences that such absence would have for the employer. Ms Prestia
submitted that the dismissal of the applicant was not harsh, unjust or unreasonable.
Consideration
[40] The unfair dismissal provisions of the Act include section 385 which stipulates that
the Commission must be satisfied that four cumulative elements are met in order to establish
an unfair dismissal. These elements are:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
[41] In this case, there was no dispute that the matter was confined to a determination of
that element contained in subsection 385 (b) of the Act, specifically, whether the dismissal of
the applicant was harsh, unjust or unreasonable. Section 387 of the Act contains criteria that
the Commission must take into account in any determination of whether a dismissal is harsh,
unjust or unreasonable. These criteria are:
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(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.
S. 387 (a) - Valid Reason for the Dismissal Related to Capacity or Conduct
[42] The reason for the applicant’s dismissal as was stated in the letter of dismissal of 21
April 2017, involved the employer’s assumption that the applicant had abandoned her
employment. The abandonment of employment was asserted to be supported by the
applicant’s failure to respond to an earlier letter dated 13 April 2017, which requested that the
applicant contact the employer immediately to advise of the reason for her absence from
work. These two curious letters, which the applicant did not see until they were provided with
the employer’s response to the unfair dismissal claim, are little more than a contrivance which
the employer sought to disingenuously rely upon.
[43] The employer was well aware that the applicant had decided to proceed on her
Thailand holiday despite being advised that her request for leave had been denied. The
employer decided to construct a disingenuous portrayal of the circumstances that involved the
real reason for the dismissal of the applicant. Serious doubt has emerged as to whether the
letters of 13 and 21 April were ever actually dispatched to the applicant’s home address.
[44] Ms Cavallaro was questioned as to why the employer would send communications of
this nature to the applicant’s home address in the knowledge that the applicant was, in all
likelihood, in Thailand. Regrettably, Ms Cavallaro provided very unconvincing evidence
which I am not prepared to accept. Ms Cavallaro was aware that the applicant was going to
proceed on her planned holiday to Thailand and if, as she suggested, she was genuinely
seeking to confirm that the applicant had not altered her plans at the last minute she only
needed to telephone the applicant.
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[45] Although the employer has disingenuously attempted to portray the dismissal of the
applicant as involving an abandonment of employment, it is clear that the dismissal of the
applicant was for reason of her disobedience involving her failure to attend for work in
circumstances where her leave request had been refused. Obviously, if any employee
deliberately absents themselves from work in the knowledge that a request for approval to
take leave has been denied, such conduct can represent misconduct that may justify dismissal
from employment.
[46] Consequently, the actual reason for the applicant’s dismissal was her refusal to comply
with the employer’s instruction to attend for work in circumstances where her request for
annual leave had been denied. In order to assess whether this conduct of the applicant was
misconduct that represented a valid reason for dismissal, it is necessary to consider whether
the employer’s decision to refuse the applicant’s request for annual leave was reasonable.
[47] It is clear from s. 88 (2) of the Act that an employer must not unreasonably refuse to
agree to a request by an employee to take paid annual leave. Whether there has been an
unreasonable refusal to agree to a request to take paid annual leave is a matter that involves
careful assessment of all of the particular circumstances of each case. Matters such as the
nature and size of the employer’s business operation, and the period of notice provided for
any requested leave, are matters of significance in any assessment of whether a refusal to
agree to leave was unreasonable.
[48] Small and medium size businesses who have fewer employees would ordinarily
experience greater difficulty making arrangements to cover for the work of employees who
are absent on leave. In addition, certain business operations have particular periods of high
demand or activity during which leave requests would not usually be approved. A decision to
refuse a request for annual leave which is based upon genuine, sound business reasons would
not usually be held to be unreasonable.
[49] In this instance, a medium size retail business operation had quite understandably and
reasonably promulgated leave block-out periods around Christmas, New Year and Easter.
Consequently, as the applicant’s request for the April leave coincided with the Easter leave
block-out, there would be strong prospect to establish that it would not be unreasonable for
the employer to have refused to agree to the applicant’s April leave request.
[50] However, there were particular aspects of the circumstances surrounding the
applicant’s April leave request which operate against what might be described as the “default
position” whereby ordinarily the employer would be acting reasonably to refuse an annual
leave request which coincided with the Easter leave block-out.
[51] The first aspect of note is that the applicant provided a significant period of notice for
her request to take annual leave. The applicant completed the leave request form on 12
January 2017, seeking leave to commence on 10 April 2017. This provided the employer with
a notice period of just over 12 weeks before the requested leave was to commence. A
significant period of notice for any request to take annual leave would provide the employer
with an enhanced opportunity to make arrangements to cover the absence.
[52] The second aspect of significant consideration has involved the time lapse after the
leave request was made and before which rejection of the request was provided to the
applicant. Although the applicant’s leave was not approved by Ms Emerson at around the time
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that the request was made, January 2017, it was clear that the question of any approval had
been referred by Ms Emerson to more senior managers. This clearly provided the applicant
with an ongoing expectation that the April leave may be approved.
[53] As early as 23 January 2017, the question of the approval of the applicant’s April
leave request had been referred to the General Manager, Mr Barbaro, including the advice that
the leave request involved international travel arrangements. Those circumstances reasonably
required the employer to deal with the matter with some degree of timeliness and clarity.
Instead, Mr Barbaro did nothing about the matter. The request was essentially ignored until
Ms Emerson revisited the issue some eight weeks later, when she submitted the request for a
senior management decision for a second time. On this occasion, Ms Emerson raised the
matter with the HR Officer, Ms Aksu, who then sent an email to Mr Barbaro and Ms
Cavallaro seeking their “thoughts” regarding the April leave request.
[54] Consequently, it was not until 10 weeks after the applicant had made her leave request,
and 2 ½ weeks before her international travel, when she was first advised by the employer
that her April leave request had been denied. Up until this point in time, 22 March 2017,
although it was clear that the applicant was aware that the leave had not been approved, she
had a reasonable expectation that it would not be refused.
[55] The applicant then unsuccessfully attempted to have the employer change its decision
to refuse her April leave request. However, by this time there would have understandably
been significant difficulty making any rearrangements for the international travel. Similarly,
because of the period of inaction from the employer, the capacity to make arrangements to
cover for the absence had become more difficult.
[56] The applicant advised Ms Cavallaro that any late change to the international travel
would cost the applicant more than $4,000. However, the position adopted by Ms Cavallaro
insisted that the applicant incur such a cost, and work as directed during the Easter period. In
defence of this position, the employer asserted that the applicant’s April leave request had
been consistently refused since shortly after the request was made in January.
[57] However, the evidence has demonstrated that there was anything but a clear
communication to the applicant about the determination of her leave request. Although the
applicant had completed the leave request form on 12 January at no time was there any
written confirmation that the leave request had been refused. Instead, the employer asserted
that an absence of any actual signed approval should be translated into a refusal of the request.
The employer confirmed that its practice and procedure required signed approval but no
documentary advice of any refusal. Instead, it suggested that the absence of any signed
approval should have been recognised by the applicant to represent a refusal, despite there
being no verbal advice of any refusal provided before 22 March.
[58] In summary, when the various aspects of all of the circumstances surrounding the
employer’s refusal to agree to the applicant’s April leave request are carefully examined and
balanced, that refusal must be held to have been unreasonable. In simple terms, it was
unreasonable for the employer to have delayed proper and clear determination of the
applicant’s annual leave request such that a financial impost of some $4,000 would be
suffered by the applicant in order to comply with the employer’s tardy directive. The
applicant had made the request for annual leave with sufficient notice to enable the employer
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to make arrangements to cover the absence of the applicant. Further, the employer was
obliged to provide and communicate unequivocal refusal in a timely manner.
[59] Therefore, in the particular circumstances of this case, the employer unreasonably
refused to agree to the applicant’s request for annual leave. It follows that the applicant did
not fail to comply with a reasonable and lawful direction of the employer and her failure to
attend for work in accordance with the direction of the employer did not represent
misconduct. Consequently, there was no valid reason for the applicant’s dismissal, either as
stated by the employer in the letter of dismissal, or as otherwise discernible.
S. 387 (b) - Notification of Reason for Dismissal
[60] The employer purportedly provided written notification of the reason for the
applicant's dismissal in the letter of dismissal dated 21 April 2017. The letter of dismissal, and
an earlier letter dated 13 April 2017, were purportedly sent to the applicant’s home address in
circumstances where the employer would have reasonably believed that the applicant was in
Thailand.
[61] Serious doubts have arisen as to whether the letters of 13 and 21 April were actually
dispatched to the applicant’s home address. In any event, the letter of dismissal
disingenuously asserted that the reason for the applicant’s dismissal involved an abandonment
of employment. Regrettably, the employer’s communications of 13 and 21 April have
represented an entirely inappropriate and inaccurate notification of the dismissal of the
applicant.
S. 387 (c) - Opportunity to Respond to any Reason Related to Capacity or Conduct
[62] The applicant was provided with an opportunity to respond in respect to the
employer’s decision to refuse her request for annual leave when she met with Ms Cavallaro
on about 5 April 2017. Unfortunately, by the time that this opportunity was provided, the
delays associated with proper determination of the applicant’s request for annual leave meant
that the applicant could do little but advise the employer that the cost associated with any
rearrangement of international travel reasonably prohibited the applicant’s compliance with
the employer’s directive to work as rostered.
S. 387 (d) - Unreasonable Refusal to Allow a Support Person to Assist
[63] Although there was no evidence of any actual refusal to allow the applicant to have a
support person present during the meeting held on about 5 April 2017, there was no indication
given to the applicant prior to the commencement of that meeting that the circumstances of
the employer’s refusal to agree to the applicant’s request for leave would involve a directive
that would put the applicant’s continued employment in jeopardy. Consequently, the applicant
was not provided with any proper indication that the meeting of about 5 April 2017 may
involve the prospect that termination of employment was under consideration.
[64] Without the employer providing prior notification of the seriousness that had
developed regarding the refusal to agree to the applicant’s request for leave, the applicant was
put in a position where she would not have known that there was a potential need to request
the assistance of a support person. These circumstances are tantamount to an unreasonable
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refusal to allow a support person because the applicant did not know that there may be a need
to request such support.
S. 387 (e) - Warning about Unsatisfactory Performance
[65] There was no aspect of unsatisfactory work performance associated with the dismissal
of the applicant. Consequently this factor has no relevance to the circumstances of this case.
S. 387 (f) - Size of Enterprise Likely to Impact on Procedures
[66] The employer is a medium size business that did have a dedicated human resources
officer. It was surprising and regrettable to observe some of the substantive and procedural
errors that were made during the process of dealing with the request for the April leave, and
the subsequent dismissal. It was very regrettable to have to make adverse credit findings that
related to the dispatch of the curious letters to the applicant’s home address when the
employer was aware that the applicant was unlikely to be in Australia at that time.
[67] Further, the employer may also benefit by reviewing its employee management
practices to ensure that unequivocal documentary communication of any decision to reject
any application for annual leave is made in a timely manner. Exclusively verbal
communication of important determinations relating to employment matters should be
strenuously avoided.
S. 387 (g) - Absence of Management Specialists or Expertise Likely to Impact on
Procedures
[68] In this case there was no absence of a dedicated human resources (HR) manager. As
previously mentioned, it was surprising that a number of fundamental elements of proper
documentary process were not mandated.
S. 387 (h) - Other Relevant Matters
[69] There are no other relevant matters identified as providing aspects of consideration
that should properly influence the determination of the claim. In particular, the determination
of the matter has not been influenced by evidence of an ongoing contest regarding alleged
outstanding entitlements.
Conclusion
[70] In this case, the stated reason for the dismissal of the applicant involved an alleged
abandonment of employment. Upon a proper and objective analysis, the applicant was
dismissed for reason of her refusal to attend for work in accordance with the employer’s
directive arising from its refusal to agree to the applicant’s request for annual leave.
[71] A detailed and balanced analysis of the various aspects of all of the circumstances
surrounding the employer’s refusal to agree to the applicant’s request for annual leave has
resulted in a finding that the employer unreasonably refused to agree to the applicant’s request
for annual leave. Consequently, the actions of the applicant whereby she refused to comply
with the directive to attend for work in the absence of approval to take leave, did not represent
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misconduct on the part of the applicant. The directive of the employer to require the applicant
to work was, in the particular circumstances of this case, harsh and unreasonable.
[72] Therefore, there was no valid reason for the dismissal of the applicant as the conduct
of the applicant did not represent a refusal to comply with a reasonable and lawful direction of
the employer.
[73] The procedure that the employer adopted when it dealt with the applicant’s request to
take annual leave represented an unfortunate example of serious mismanagement.
[74] In summary, the dismissal of the applicant was without valid reason involving
established misconduct or capacity inadequacy. Further, the dismissal arose from
circumstances that involved an unreasonable and unjust process. In addition, the means of
communicating the decision to dismiss was highly questionable, and in any event deliberately
inaccurate. Consequently, upon analysis of the various factors that are identified in s. 387 of
the Act, an objective and balanced evaluation of all of the relevant circumstances has
provided compelling basis to establish that the dismissal of the applicant was harsh, unjust
and unreasonable.
[75] Therefore, the applicant’s claim for unfair dismissal remedy has been established.
Remedy
[76] The applicant did not seek reinstatement as a remedy for her unfair dismissal. In the
circumstances reinstatement would not be an appropriate remedy.
[77] I have decided that compensation would be an appropriate remedy for the applicant’s
unfair dismissal, and I turn to the factors which involve the quantification of any amount of
compensation.
[78] Section 392 of the Act prescribes certain matters that deal with compensation as a
remedy for unfair dismissal. I have approached the question of compensation having regard
for the guidelines that have been established in the Full Bench Decisions of; Sprigg v Paul’s
Licensed Festival Supermarket6 and, Smith and Ors v Moore Paragon Australia Ltd 7 and,
more recently, the case of McCulloch v Calvary Health Care Adelaide8.
[79] Firstly, I confirm that an Order for payment of compensation to the applicant will be
made against the employer in lieu of reinstatement of the applicant.
[80] Secondly, in determining the amount of compensation that I Order, I have taken into
account all of the circumstances of the matter including the factors set out in paragraphs (a) to
(g) of subsection 392 (2) of the Act.
[81] There was no evidence that an Order of compensation would impact on the viability of
the employer’s enterprise.
[82] The applicant had five years and three months service. The applicant would have been
likely to have received remuneration of approximately $815.00 per week if she had not been
dismissed.
[2017] FWC 4626
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[83] There was no evidence to suggest that the employment of the applicant would not have
continued for a significant period of time. The employer considered the applicant to be a
valued employee.
[84] Following the dismissal, the applicant has unsuccessfully sought alternative
employment. The applicant has not been able to mitigate the loss suffered because of the
dismissal.
[85] Thirdly, in this instance there was no established element of past misconduct of the
applicant which contributed to the employer's decision to dismiss.
[86] Fourthly, I confirm that any amount Ordered does not include a component by way of
compensation for shock, distress or humiliation, or other analogous hurt caused to the
applicant by the manner of the dismissal.
[87] Fifthly, the amount Ordered does not exceed the compensation cap as prescribed by s.
392 (5) of the Act.
[88] The applicant was not paid any notice upon termination. The applicant’s dismissal was
summary in nature.
[89] Consequently, for the reasons outlined above I have decided that an amount
approximating with 16 week’s remuneration should be provided as compensation to the
applicant. That amount is $13,400.00. Accordingly, separate Orders [PR595869] providing
for remedy in these terms will be issued.
COMMISSIONER
Appearances:
Ms M Nasser of Rochforts Workplace Solutions appeared for the applicant.
Ms N Prestia of the Master Grocers Australia Limited appeared for the employer.
Hearing details:
2017.
Sydney:
August 8.
Printed by authority of the Commonwealth Government Printer
[2017] FWC 4626
14
Price code C, PR595868
1 Exhibit 9.
2 Exhibit 8.
3 Exhibit 6.
4 Exhibit 3.
5 Exhibit 4.
6 Sprigg v Paul’s Licensed Festival Supermarket, (Munro J, Duncan DP and Jones C), (1998) 88IR 21.
7 Smith and Ors v Moore Paragon Australia Ltd, (Lawler VP, Kaufman SDP and Mansfield C), (2004) PR942856.
8 John McCulloch v Calvary Health Care Adelaide, (Ross P, Hatcher VP and Gostencnik DP), [2015] FWCFB 873.
