1
Fair Work Act
2009
s.394 - Application for unfair dismissal remedy
Nichole Knutson
v
Chesson Pty Ltd T/A Pay Per Click
(U2017/13095)
COMMISSIONER CAMBRIDGE SYDNEY, 1 MAY 2018
Unfair dismissal - no valid reason for dismissal - 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 9
December 2017. The application was made by Nichole Knutson (the applicant) and the
respondent employer is Chesson Pty Ltd T/A Pay Per Click (ACN: 103 244 695) (the
employer).
[2] The application indicated that the date that the applicant’s dismissal took effect was 27
November 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 22 March 2018.
[4] At the Hearing, each of the Parties were unrepresented, as the Commission had earlier
issued a Decision [2018] FWC 958 which refused permission that had been sought by the
employer to be represented by lawyers or paid agents. The applicant gave evidence as the
only witness called in support of her unfair dismissal claim, and the employer’s Director, Mr
Stephen Paul Murphy was the only witness who provided evidence for the employer. Mr
Murphy cross-examined the applicant, who then in turn, cross-examined Mr Murphy.
Factual Background
[5] The applicant commenced employment with the employer in November 2014. The
applicant was engaged in a position that was described as an Online Campaign Manager.
[6] The employer is a small business that has, according to information contained in the
Form F3 - Employer Response to Unfair Dismissal Application, employed eight employees.
However, the Form F3 also indicated that the employer did not raise any objection to the
[2018] FWC 2080 [Note: An appeal pursuant to s.604 (C2017/2732) was
lodged against this decision and the order arising from this decision - refer
to decision dated 25 May 2018 [[2018] FWC 2967] for result of
appeal.][Note: This decision and the associated order has been quashed -
refer to Full Bench decision dated 30 July 2018 [[2018] FWCFB 4149]
DECISION
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/pdf/2018fwcfb4149.pdf
https://www.fwc.gov.au/documents/awardsandorders/html/pr601919.htm
http://www.fwc.gov.au/documents/decisionssigned/html/2018FWC2967.htm
https://www.fwc.gov.au/documents/awardsandorders/html/pr601919.htm
[2018] FWC 2080
2
unfair dismissal application on the basis that the dismissal, if there was a dismissal, was
consistent with the Small Business Fair Dismissal Code.
[7] The employer conducts a business described as an online digital marketing agency.
This business provides services to develop and promote web sites and improve the reach and
performance of client’s web sites. The applicant was engaged to work from the employer’s
business premises located at Kalang Road in the Sydney suburb of Elanora Heights.
[8] The terms of engagement of the applicant were reflected in an employment contract
document that inter alia, stipulated the hours of work as “9.00 – 5.00 Monday to Friday, with
½ Hour Lunch Break per day, with flexibility depending on client liaison requirement.”1 The
applicant commenced on a remuneration level of $50,000.00 plus 9.5% superannuation.
[9] The work of the applicant was without recorded complaint, and apparently of such a
pleasing standard so as to attract pay rises in March 2015, January 2016, and November 2016.
The most recent pay rise for the applicant occurred on 6 September 2017, at which time her
remuneration was increased from $65k to $70k.
[10] Shortly after the applicant had received the pay rise to $70k, the employer provided
the applicant, and other employees, with revised contract of employment documents. The
applicant raised some concerns about changes that the employer proposed in the revised
contract of employment document. In particular, the applicant advised the employer that the
proposed extension to the stipulated daily hours of work, from 9am to 5pm (1/2hr lunch) to
9am to 5:30pm (1hr lunch), would preclude her attendance at pre-paid Pilates classes on
Mondays and Wednesdays.
[11] The applicant documented her concerns and these matters were discussed during a
meeting with the employer held on 18 October 2017. There was some level of agreement
reached with the employer about the applicant’s concerns. However, in an email sent to the
employer on 30 October, the applicant reiterated that she was unable to make alternative
arrangements for her pre-paid Pilates classes. In this email the applicant indicated that the
negotiations surrounding the revised employment contract was impacting on her “stress
levels” and she proposed that the hours of work in her employment contract be amended so
that on Mondays and Wednesdays she would work until 5:15pm rather than 5:30pm, with a
correspondingly shortened 45 minute lunch break on those two days. The applicant also
sought other changes relating to a restraint clause, and the removal of the words “including on
weekends and public holidays” from the hours of work clause.
[12] On 2 November 2017, the employer’s Director, Mr Murphy sent an email to the
applicant in response to the ongoing issues surrounding the revised employment contract. Mr
Murphy advised that the restraint clause would be removed. However, he rejected the
applicant’s proposed alteration to the hours of work involving a 15 minutes earlier finish on
Mondays and Wednesdays. Mr Murphy’s email of 2 November stated, inter alia:
“The business requires staff to be flexible and in particular the business needs to be
responsive to client’s [sic] between the hours of 9 to. 5.30, with a 1 hour lunch break.
We feel that the contract is fair and reasonable, because our clients require this level
of service
[2018] FWC 2080
3
We would like you to remain, in the employment, but to do so, as previously
mentioned, you would need to sign the new employment contract.
If you still feel, you cannot and do not wish to sign, I need to find staff that will
support the business as it grows and continually changes.”
[13] On 6 November 2017 at 5:30pm, the applicant sent an email to Mr Murphy which
relevantly stated:
“I have agreed to extend my working hours by 2 hours a week, but due to the inability
to meeting me in the middle from 2.5 hours by allowing me to leave at 5:15pm on
Monday and Wednesdays, I will not be signing the new contract.”
[14] Later that evening, at 8:53pm, Mr Murphy sent an email to the applicant which
relevantly stated:
“I have stated that if you decide not to sign the employment contract, I need to find
staff that will support the business.
Therefore, sadly I need to inform you are now on notice and will work out your notice
period.
Post which, you will no longer be employed by PayPerClick”
[15] On the following day, 7 November 2017, at 8:36am, the applicant sent email advice to
the employer indicating that she had sought medical advice and would not be returning to
work until 20 November 2017, as instructed by her Doctor. The applicant provided the
employer with a Medical Certificate dated 2 November, which confirmed that the applicant
was unfit to attend work from 2/11/2017 to 17/11/2017.
[16] On 7 and 10 November 2017, the applicant sent further emails to the employer
seeking, inter alia, confirmation of the date of termination of her employment. The applicant
did not receive any immediate response to these emails and in the following week she
engaged lawyers to communicate with the employer on her behalf.
[17] On 14 November 2017, the employer sent the applicant an email that was entitled
“Discrepancy with Doctors Note”. The employer challenged the validity of the Medical
Certificate which had been provided on 7 November 2017, and covered the period from 2
November to 17 November 2017. The employer noted that the applicant had worked on 2, 3
and 6 November which were days covered by the Medical Certificate. Lawyers acting for the
applicant advised the employer that the applicant had felt well enough to attend work on those
days, and that her attendance for some of the days covered by the Medical Certificate did not
invalidate it.
[18] Over the following two weeks a series of letters transacted between lawyers acting for
the applicant and those acting for the employer. These communications variously contested
the circumstances surrounding the termination of the employment of the applicant and
whether she was entitled to be paid personal leave for the period covered by the contested
Medical Certificate. As this contest unfolded the applicant obtained a further Medical
Certificate dated 23 November 2017, from the Doctor that had provided the initial medical
certificate dated 2 November 2017. The further Medical Certificate advised that the Doctor
was aware that the applicant had attended for work on the 3rd and 6th of November which
[2018] FWC 2080
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were days covered by the initial Medical Certificate. The further Medical Certificate also
stated:
“That she attended work on these days does not invalidate the medical certificate and
grounds that she was unfit to attend. Rather, it is more a sign of her diligence and
sense of responsibility to the company and this is to her credit.
She was advised at the time to rest and take some time away with friends to improve
her health. It seems she took this advice as noted by social media photo’s [sic] which I
was very glad to see.
I have seen Nicole repeatedly since then and she has clearly unfit to continue with the
current employer at this time.”
[19] The communications between the lawyers respectively acting for the applicant and the
employer culminated in a letter dated 28 November 2017, from the employer’s lawyers. This
letter confirmed that the employer did not accept that the applicant provided evidence that
would satisfy a reasonable person that she was unfit for work because of personal injury or
illness. Further, the letter of 28 November stated that:
“Our client will be paying Ms Knutson’s termination entitlements in its normal pay
run tomorrow. This will be her untaken annual leave as accrued up to the point where
she went on leave.”
[20] Consequently, the applicant was paid wages up until the last day of any actual
performance of work, 6 November 2017, and on or about 30 November 2017 she was paid her
accumulated annual leave entitlements calculated as at 6 November 2017. There was no
payment made for either personal leave or notice in the period between 6 and 30 November
2017.
[21] The applicant has not sought reinstatement as a remedy for her alleged unfair
dismissal but has instead sought payment of monetary compensation. On 5 March 2018, the
applicant commenced new employment.
The Case for the Applicant
[22] The applicant made oral submissions during the Hearing, and she provided
documentary material which included various submissions together with written reply
material. The applicant submitted that her dismissal was unfair.
[23] The submissions made by the applicant asserted that her dismissal was unfair because
the employer had terminated the employment because the applicant refused to sign a new
employment contract. The applicant submitted that her dismissal was unfair because it was
not based upon any performance or conduct issues but was merely because the employer
wanted to change the conditions of her employment to which she would not agree.
[24] The applicant said that she had sought to negotiate a compromise position regarding
the proposed new contract terms extending the daily hours of work to 5:30pm. The applicant
submitted that the employer was not willing to come to what she had proposed as a
compromise arrangement involving a 5:15pm finish on Mondays and Wednesdays.
[2018] FWC 2080
5
[25] The further submissions made by the applicant asserted that her dismissal was unfair
because the employer had failed to provide notice in accordance with s. 117 of the Act. The
applicant made submissions which complained about a period of 11 days delay before the
employer responded to her requests for clarification of the date of termination of the
employment. The applicant said that it was not until she had engaged the assistance of
lawyers before the employer responded to her repeated requests for clarification of the details
of the termination of her employment.
[26] The applicant also submitted that the employer had refused to honour her Medical
Certificate which confirmed her absence on personal leave. Therefore, according to the
submissions made by the applicant, the employer had acted in breach of s. 97 of the Act when
it had refused to make payment of her personal leave.
[27] In summary, the applicant submitted that her dismissal was unfair. The applicant
clarified that she was seeking financial compensation for remuneration lost in the period from
her dismissal until she obtained new employment.
The Case for the Employer
[28] Mr Murphy appeared on behalf of the employer and he submitted that the dismissal of
the applicant was not unfair. Mr Murphy had filed a written outline of submissions which
became Exhibit 5, and he supplemented this material with verbal submissions.
[29] The submissions made by Mr Murphy asserted that the employer had sound
commercial reasons for seeking to alter the daily hours of work for the applicant. The
submissions made by Mr Murphy stated that the employer needed staff to be available until
5:30pm to respond to queries from clients, so they would get excellent customer service from
the employer.
[30] Further, the submissions made by Mr Murphy stated that the employer believed that it
had listened and negotiated wherever possible to alleviate any of the concerns that had been
raised by the applicant. The employer submitted that once the applicant had decided not to
sign the new employment contract, Mr Murphy informed her she was on notice and this
information was provided via email on the evening of 6 November 2017. On the following
morning, 7 November 2017, the applicant provided a Medical Certificate to cover a two week
period which was the entirety of her notice period. Mr Murphy submitted that it was
reasonable and natural for the employer to have concern and to question how the “sick note”
could be provided the following day at 8:30am.
[31] Mr Murphy said that the applicant was provided with an opportunity to explain how
she could produce the Medical Certificate which covered a period during which she initially
worked. Further, Mr Murphy submitted that the Medical Certificate was inconsistent with
multiple social media posts that the applicant had made during the period of the alleged
sickness. Mr Murphy submitted that the employer believed that the applicant had not
addressed the concerns raised by the employer and therefore, it felt warranted to deny the sick
leave.
[32] The submissions made by the employer also raised concern about the alleged forced
resignation of the applicant as indicated in a communication from her lawyers. Mr Murphy
[2018] FWC 2080
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submitted that the applicant’s lawyers provided very combative responses and did not provide
information to allay the employer’s concerns about the “false sick leave claim.” Mr Murphy
submitted that the applicant could not make a claim to say that she had been forced to resign.
[33] The further submissions made by Mr Murphy raised the question of the operation of
the Small Business Fair Dismissal Code and in this respect it was submitted that the applicant
had been provided with a reason as to why she was at risk of being dismissed. Mr Murphy
said that he sent the applicant an email telling her that if she didn’t sign the new employment
contract he would need to find staff that would support the business as it grows and
continually changes. Therefore, according to the submissions made by Mr Murphy, he did
give the applicant fair warning that she was at risk before he sent her the email
communication advising her that she was on notice.
[34] The submissions made by the employer also challenged that the applicant had been
genuinely seeking alternative employment since the dismissal. It was submitted that it was
inconceivable that the applicant was unable to find new employment shortly after the
dismissal. Further, Mr Murphy noted that the applicant had taken a three-week holiday to the
United States and that this, and the absence of other verified application for jobs, indicated
that she had not been actively looking for work during the past four month period.
[35] In summary, the submissions made by the employer asserted that there was a valid
reason to terminate the employment of the applicant. Mr Murphy said that it was fair and
reasonable for the employer to revise the employment contracts and to standardise the
business hours of operation between 9am and 5:30pm. The submissions made by the
employer reiterated that it was not harsh, unjust or unreasonable for the employer to terminate
the employment of the applicant who had refused to comply with the reasonable request of the
employer.
Consideration
[36] 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.
[37] In this case, there was a question raised as to whether the applicant had been dismissed
or, as was suggested in a communication from the applicant’s lawyer, forced to resign.
However, the suggestion of the applicant providing a forced resignation was raised as a
proposition that was contingent upon there being validity to the employer’s purported
withdrawal of the termination of employment as had been advised on the evening of 6
November 2017. In an email dated 17 November 2017, Mr Murphy indicated that “no
termination of employment has taken place.”
[38] However, the employer’s attempted retraction of the dismissal was made in response
to the applicant’s lawyers directing attention to defects that existed in the notice of the
dismissal made in the email communication of 6 November from Mr Murphy. The evidence
[2018] FWC 2080
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clearly established that the applicant was advised of her dismissal at 8:53pm in the email of 6
November 2017. Although that advice contained defects such as the absence of any specified
period of notice that the applicant was required to work out, that communication clearly
operated to dismiss the applicant. The applicant was entitled to act upon that advice and seek
to clarify and rectify the attendant deficiencies. There was simply no capacity for the
employer to unilaterally withdraw the dismissal. In any event, the evidence undeniably
established that the applicant’s employment was terminated on the initiative of the employer.
[39] The question of the potential operation of the Small Business Fair Dismissal Code (the
Code) was also raised by Mr Murphy during the Hearing. The employer’s response to the
unfair dismissal application, Form F3, did not identify any reliance upon operation of the
Code. Further, the Commission was not provided with any evidence of compliance with the
Code as is required by the Code.
[40] There was no suggestion that the dismissal of the applicant involved a redundancy
circumstance. As the applicant was dismissed, and the employer was unable to demonstrate
compliance with the Code, further consideration of the matter has involved 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:
(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
[41] The applicant was dismissed because she refused to sign a new employment contract
which extended her daily hours of work finish time from 5 to 5:30pm. The applicant had
[2018] FWC 2080
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explained to the employer the particular difficulties associated with a requirement for her to
work until 5:30pm on Mondays and Wednesdays. The applicant had requested that her new
employment contract contain terms which permitted her to leave 15 minutes earlier on
Mondays and Wednesdays with a correspondingly shortened lunch break on those days. This
request was refused by the employer who insisted upon standardising all employment
contracts so as to provide for a finish time of 5:30pm.
[42] It was unfortunate that the applicant and her employer were unable to reach agreement
on what might be seen to be something of an almost trivial matter. There appeared to be no
preparedness to accommodate the applicant’s pre-paid commitment to her Pilates classes. The
employer adopted an inflexible position regarding the 5:30pm finish time. The applicant was
prepared to agree to the later finish time except for two days of the week, and she provided
explanation for the arrangement that she sought. The employer’s requirement for the 5:30pm
finish was said to involve improved customer service and a desire to standardise the terms of
all employment contracts. Regrettably, there was no pursuit of further compromise such as an
accommodation of the 5:15pm finish on Mondays and Wednesdays for some fixed period of
time perhaps connected with the period that the applicant had pre-paid for the Pilates classes.
[43] The evidence has disclosed that the failure to reach agreement on any compromise
arrangement concerning the 5:30pm finish time had become something of a token issue that
reflected the employer’s underlying dissatisfaction arising from the applicant’s challenge to
various terms that were proposed in the revised employment contract document. Essentially,
the employer had expectations of more unquestioning compliance from the applicant, and her
challenge to various terms in the revised employment contract was perceived to be something
that displayed less than the desired level of commitment to the business of the employer.
[44] Consequently, the underlying reason for the applicant’s dismissal involved her actions
in challenging various terms in the revised employment contract and which displayed, in the
mind of the employer, some absence of commitment and dedication to her employer.
Consequently, when faced with an employee who did not demonstrate the required level of
commitment/dedication to the business of the employer, Mr Murphy was not prepared to
compromise on the 15 minutes earlier finish for two days of the week. The difficulties that
had accumulated during the negotiations surrounding the revised employment contract
essentially boiled over when the applicant indicated that she was not prepared to sign the new
contract document unless she could get the flexibility of a 15 minute earlier finish for two
days of the week.
[45] Regrettably, the tensions that had been created by the negotiations surrounding the
revised employment contract led to significant deterioration in the employment relationship,
and culminated with Mr Murphy refusing to accept what was, on any objective and reasonable
assessment, a minor alteration involving a request for flexible working hours. There was no
defensible explanation for why the employer’s business could not accommodate the applicant
leaving work 15 minutes earlier on two days of the week, particularly if such an arrangement
might have some fixed period of operation.
[46] In summary, the evidence has established that the applicant was dismissed because she
challenged the employer’s decision to issue revised employment contract documents which
included an unnecessarily rigid requirement to extend the daily finish time to 5:30pm on all
days. There was no evidence which provided satisfactory explanation of any particular
business or commercial requirement for such a rigid approach to the later finish times on all
[2018] FWC 2080
9
days. Consequently, such reason for dismissal was not sound, defensible or well-founded.
There was not a valid reason for the dismissal of the applicant.
S. 387 (b) - Notification of Reason for Dismissal
[47] The employer provided notification of dismissal by email communication sent at
8:53pm on 6 November 2017. Notification of dismissal should not be made by email
communication. Unless there is some genuine apprehension of physical violence or
geographical impediment, the message of dismissal should be conveyed face to face. To do
otherwise is unnecessarily callous. Even in circumstances where email or electronic
communications are ordinarily used, the advice of termination of employment is a matter of
such significance that basic human dignity requires that dismissal be conveyed personally
with arrangements for the presence of a support person and documentary confirmation.
S. 387 (c) - Opportunity to Respond to any Reason Related to Capacity or Conduct
[48] The employer had suggested to the applicant that any refusal to sign the revised
employment contract jeopardised her continued employment. This suggestion arose in the
email from Mr Murphy of 2 November.
[49] However, Mr Murphy responded to the applicant’s advice that she would not sign the
new employment contract by moving immediately to dismissal. In the context of the
negotiations that had been occurring regarding the terms of any new employment contract, Mr
Murphy was obliged to provide the applicant with an opportunity to respond to what had
developed to become the unambiguous outcome of dismissal in the event that the applicant
maintained her position of refusing to sign the new employment contract. This important step,
which should have been taken prior to any dismissal, was overlooked when Mr Murphy
unfortunately and hastily return emailed the applicant with advice of her dismissal.
[50] Consequently the applicant was not provided with an opportunity to respond to the
prospect that the continued refusal to sign the new employment contract would result in
dismissal.
S. 387 (d) - Unreasonable Refusal to Allow a Support Person to Assist
[51] There was no opportunity for any participation of a support person because there was
no discussion between the applicant and Mr Murphy prior to the decision to dismiss being
taken and then communicated to the applicant by email. The absence of any procedure
involving discussion with the applicant effectively amounted to an unreasonable refusal to
allow the presence of a support person at any stage of the process involving contemplation
and then determination of dismissal.
S. 387 (e) - Warning about Unsatisfactory Performance
[52] 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
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[53] The employer is a small business, and accommodation has been made for a significant
level of informality to be provided in respect to employment related matters. However, such
accommodation could not extend to any condonation of the defective process that was
adopted by the employer whereby the applicant was advised of her dismissal by way of email,
and without prior discussion involving unambiguous advice to the applicant that her
continued refusal to sign the new employment contract would result in dismissal.
S. 387 (g) - Absence of Management Specialists or Expertise Likely to Impact on
Procedures
[54] As a small business the employer did not have any dedicated human resource
management specialists or other expertise. Allowance for informality and a degree of
flexibility with procedures regarding employment related matters has been provided.
However, in circumstances where the employer acted with unnecessary haste and
insensitivity, no mitigation or justification could arise from any absence of specialists or
expertise in human resource management.
S. 387 (h) - Other Relevant Matters
[55] The employer was understandably taken by surprise when, on the morning following
the email advice of her dismissal the applicant provided a Medical Certificate which covered
days that she had already worked and extended to cover the notice period that the employer
sought to have the applicant work out. The employer requested clarification of the
circumstances surrounding the Medical Certificate. Subsequently, a clear explanation was
provided by the Medical Practitioner that issued the Medical Certificate.
[56] Regrettably, Mr Murphy refused to accept the Medical Certificate despite the
explanation that had been provided. Further, Mr Murphy denied payment of personal leave to
the applicant for the days that the applicant was absent from work during the period covered
by the Medical Certificate(s). The payment of personal leave was denied despite the applicant
having accrued entitlement to personal leave to cover the days of absence during the period
stipulated in the Medical Certificate.
[57] The refusal to pay the applicant personal leave despite her entitlement to that payment
meant that the applicant was paid wages only up until that day of her dismissal, 6 November
2017. The refusal to pay the applicant personal leave during the period that Mr Murphy had
(imprecisely) declared as a notice period created an outcome whereby the dismissal of the
applicant was summary in nature. That is, although notice was putatively given, the applicant
was entitled to be absent during that period in accordance with the Medical Certificate. The
failure to pay the applicant her personal leave entitlement during the notice period has meant
that she was summarily dismissed without notice on and from 6 November 2017.
[58] There was no serious misconduct on the part of the applicant which could have
possibly justified what has become her summary dismissal.
Conclusion
[59] In this case, the applicant was dismissed because she had refused to sign a new
employment contract. The applicant refused to sign the new employment contract because it
would not permit her to leave work 15 minutes earlier on two days of the week. There was no
[2018] FWC 2080
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justification for the inflexibility that the employer sought to impose upon the applicant’s daily
finish times. The employer’s inflexibility reflected an underlying deterioration in the
employment relationship that had been created by the applicant’s preparedness to challenge
particular terms that were proposed in the revised employment contract documents.
[60] Any employee is entitled to contest changes that are sought to be introduced into the
terms and conditions of the employment. Therefore, upon any reasonable and objective
contemplation, the reason for the dismissal of the applicant was not sound, defensible or well-
founded. There was not a valid reason for the dismissal of the applicant related to her capacity
or conduct.
[61] The procedure that the employer adopted when it advised the applicant of her
dismissal by way of email communication was unnecessarily callous and plainly harsh.
Further, the failure to pay the applicant her personal leave entitlement during what would
have otherwise been a notice period, meant that the applicant was dismissed without notice or
payment for the notice period. Consequently, in the absence of any serious misconduct that
could justify summary dismissal, the summary dismissal of the applicant was plainly unjust.
[62] In summary, the dismissal of the applicant was without valid reason involving
established misconduct or capacity inadequacy. Further, the dismissal involved an
unnecessarily harsh and unreasonable process including the very unfortunate means by which
advice of the dismissal was communicated by email. 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. Therefore, the applicant’s claim for
unfair dismissal remedy has been established.
Remedy
[63] The applicant did not seek reinstatement as a remedy for her unfair dismissal. In the
circumstances reinstatement would not be an appropriate remedy.
[64] 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.
[65] 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 Supermarket2 and, Smith and Ors v Moore Paragon Australia Ltd 3 and,
more recently, the case of McCulloch v Calvary Health Care Adelaide4.
[66] 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.
[67] 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.
[2018] FWC 2080
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[68] There was no evidence provided which established that an Order of compensation
would impact on the viability of the employer’s enterprise. However, I have recognised that
the employer is a small business, although it may be inferred from some of the evidence that
the business has been and is growing, and presumably financially sound.
[69] The applicant had been employed for approximately three years. The applicant would
have been likely to have received remuneration of approximately $1,346.00 per week if she
had not been dismissed.
[70] There was no evidence to suggest that the employment of the applicant would not have
continued for a significant period of time. In particular, it should be noted that the applicant
had received approval to take planned annual leave involving travel to the USA. Further, the
applicant had recently received an increase in her remuneration.
[71] Following the dismissal, the applicant has sought alternative employment. The
applicant secured alternative employment which commenced on 5 March 2018. The
alternative employment provides a level of remuneration commensurate with that which she
received when engaged with the employer.
[72] Thirdly, in this instance there was no established element of misconduct of the
applicant which contributed to the employer's decision to dismiss.
[73] 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.
[74] Fifthly, the amount Ordered does not exceed the compensation cap as prescribed by s.
392 (5) of the Act.
[75] The applicant was not paid any notice upon termination. The applicant’s dismissal was
essentially summary in nature.
[76] Consequently, for the reasons outlined above I have decided that an amount
approximating with 17 weeks remuneration should be provided as compensation to the
applicant. That amount is $22,882.00. Accordingly, separate Orders [PR601919] providing
for remedy in these terms will be issued.
COMMISSIONER
Appearances:
Ms N Knutson appeared unrepresented.
Mr S Murphy appeared for the employer.
[2018] FWC 2080
13
Hearing details:
2018.
Sydney:
March, 22.
Printed by authority of the Commonwealth Government Printer
PR601917
1 Exhibit 7.
2 Sprigg v Paul’s Licensed Festival Supermarket, (Munro J, Duncan DP and Jones C), (1998) 88IR 21.
3 Smith and Ors v Moore Paragon Australia Ltd, (Lawler VP, Kaufman SDP and Mansfield C), (2004) PR942856.
4 John McCulloch v Calvary Health Care Adelaide, (Ross P, Hatcher VP and Gostencnik DP), [2015] FWCFB 873.
