1
Fair Work Act 2009
s.394—Unfair dismissal
Karen Zita Fisher
v
Carpet Call (Qld) Pty Ltd T/A Carpetcall
(U2022/12225)
DEPUTY PRESIDENT LAKE BRISBANE, 21 JUNE 2023
Application for an unfair dismissal remedy – unable to perform the inherent requirements of
role –issues with procedural fairness – compensation awarded.
[1] Mrs Karen Zita Fisher (the Applicant) brought an application to the Fair Work
Commission (the Commission) seeking a remedy pursuant to s.394 of the Fair Work Act 2009
(the Act) stating she was unfairly dismissed from her employment from Carpet Call (Qld) Pty
Ltd.
[2] It is undisputed that the Applicant was dismissed on 5 December 2022, and she lodged
this application with the Commission on 23 December 2022, within 21-days, as required by the
Act.1 The Applicant is protected from unfair dismissal and the dismissal did not involve a
genuine redundancy.2
[3] Directions were issued for a hearing which was held on 12 April 2023. The Applicant
was self-represented, and Mr Thomas Fuimaono-Page appeared on behalf of the Respondent as
part of the Victorian Chamber of Commerce and Industry.
Background
[4] The Applicant began her employment with the Respondent from 24 September 1989
and performed a wide range of jobs. She performed her role as Clerk Cash Controller for over
15 years which required physical paper-based filing duties, undertaking daily banking duties
and frequently access various entity bank accounts. The Applicant worked with the Respondent
for 33 years.
[5] The Applicant states in her witness statement that she was sick on 17 June 2022 and was
unable to work. She was hospitalised on 19 June 2022. The Applicant’s husband had contacted
the Respondent confirming this fact. The Applicant was sick from this date until her date of
dismissal.
[6] The Applicant provided the Respondent seven (7) medical certificates stating that she
was unfit for work for the following dates:
[2023] FWC 1333
DECISION
AUSTRALIA FairWork Commission
[2023] FWC 1333
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- 20 June to 24 July 2022
- 8 July to 25 July 2022
- 25 July to 2 September 2022
- 25 August to 30 September 2022
- 30 September to 30 October 2022
- 1 November to 30 November 2022
- 10 November to 31 December 2022.
[7] During this period of absence, the Applicant had exhausted her personal leave balance,
and took long service leave in order to receive income during this period. The Applicant had
no more leave remaining at her time of dismissal.
[8] The Applicant asked if she could do her role remotely which was denied because she
was required to perform the role in-person based on the paper filing duties.
[9] On 5 December 2022, the Applicant was informed via telephone call from Mr Tim
Bensley (Chief Financial Officer of the Respondent) that her role was currently performed
through the Melbourne Head Office.
[10] During this call, Mr Bensley states that the phone call was to determine whether the
Applicant could return to work considering that she had no leave remaining and it was uncertain
when the Applicant could return back to work because of her health. Mr Bensley states that the
Applicant did not want to resign because of the effects on her insurance. As a result, Mr Bensley
stated he would terminate the Applicant’s employment so that her insurance would not be
affected, and that when she became ready to work again, that a suitable role may be found for
her.
[11] On the same day, the Applicant received a termination letter. The Respondent
terminated the Applicant on the basis that she had been absent for medical reasons for over 3
months and had no sick leave remaining on her employment. The Applicant was paid 5 weeks
in lieu of notice.
[12] Initially, the Applicant’s role was temporarily covered by Ms Karen Harwood, who is
the Group Accounts for the Respondent. Eventually, Ms Grace Zhou as the Group Accountant
took on most of Mrs Fisher’s duties through the Melbourne Head office.3 This was supposed
to be a temporary arrangement until the Applicant could return to work, but the Applicant was
still not fit to return to work. The duties had been moved to the Melbourne Head office
permanently.
[13] The Applicant argues that she was not warned of her dismissal until she received a call
on 5 December 2022. The Applicant states her role was made redundant as the duties of her
role were done in the Melbourne Head Office, and the role she had was the only role in
Australia. The Applicant seeks compensation.
[14] The Respondent argues that it was mutually agreed with the Applicant to terminate her
employment and had the Applicant not requested to be terminated, that she would be dismissed
on the basis that the Respondent would have had no other reasonable alternative than to
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terminate her employment as she was unable to perform the inherent requirements of her role.
The Respondent seeks for the Application to be dismissed.
Was the Applicant unfairly dismissed?
[15] Section 387 of the Act provides that, in considering whether a dismissal was harsh,
unjust or unreasonable, the Commission must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or
conduct (including its effect on the safety and welfare of other employees);
(b) whether the person was notified of that reason;
(c) whether the person was given an opportunity to respond to any reason related to the
capacity or conduct of the person;
(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;
(e) if the dismissal related to unsatisfactory performance by the person – whether the
person had been warned about that unsatisfactory performance before the dismissal;
(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;
(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 Commission considers relevant.
[16] I am required to consider each of these criteria to the extent they are relevant to the
factual circumstances before me.4
(a) whether there was a valid reason for the dismissal
[17] The Respondent states the primary reason for dismissal was that the Applicant had
requested that her employment be terminated by the Respondent after her call with Mr Bensley
on 5 December 2022. The Applicant contends that she asked to be terminated from her
employment. In the alternative, the Respondent argues that they had no alternative but to
terminate the Applicant’s employment on or after 5 December 2022 on the basis that she was
unable to perform the inherent requirements of the role.
[18] It is well established that the factual basis for the reason for dismissal will not of itself
demonstrate the existence of a valid reason.5 It must, as s.387(a) makes clear, be a valid reason
for dismissal. To be a valid reason, the reason for the dismissal should be “sound, defensible or
well founded”6 and should not be “capricious, fanciful, spiteful or prejudiced.”7 As summarised
by Deputy President Asbury in Smith v Bank of Queensland Ltd a “dismissal must be a
justifiable response to the relevant conduct or issue of capacity”.8
[19] Capacity takes into account whether the Applicant has the capacity to perform their
duties at the time of dismissal, at some time in the foreseeable future, and whether there was
some reasonable adjustment which could have been made in order to accommodate any current
or future capacity of the Applicant to perform their role.9 The future capacity to perform duties
may be assessed by reference to their state of health expressed by expert opinions at the time
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of dismissal.10 An inability to perform the inherent requirements of a position can be a valid
reason for dismissal.11
[20] The Applicant did not have capacity to perform the duties of her role at the time of
dismissal and in the foreseeable future. The Applicant had provided medical certificates
indicating that she was not fit for work and did not know when she could return back to work.
There are questions regarding whether reasonable adjustments could have been made
considering that some of Mrs Fisher’s duties were done remotely by Ms Zhou in Melbourne,
and some duties of the role are done remotely in the Melbourne office. However, Mrs Fisher
did not provide a clear return to work date which would provide the Respondent an opportunity
to consider the request.
[21] I find that the Respondent did wait for Mrs Fisher to return back to work and had
temporarily restructured the role until her health improved. However, the length of absence by
Mrs Fisher had given the Respondent a valid reason for dismissal on the basis that she was
incapable of performing her existing role, as a part of her role requires her to work in the office.
[22] In regard to the contention by the Respondent that the Applicant had asked to be
terminated would not justify the valid reason, nor would this be well founded. Although it
appears that Mr Bensley respected Mrs Fisher’s considerations based on her length of service,
and health issues, this process would be more defensible through giving her an opportunity to
respond, require her to undertake an independent medical examination or to consider the nature
of the call before making a final decision regarding her dismissal especially taking into account
her length of service.
[23] The Respondent had a valid reason for dismissal on the basis that Applicant was unable
to perform an inherent requirement of her role because of her capacity.
(b) and (c) whether the person was notified of that reason and had an opportunity to respond
[24] I note that the Respondent tried to accommodate the Applicant’s health issues as much
as they could. The Respondent argued that it had sufficient information to make an informed
decision where further enquiries would be needed, and that it was not incumbent on an employer
to take any particular steps in carrying out a dismissal citing Nystar Hobart Pty Ltd v Peter
Brain [2018] FWCFB 3346.
[25] Although the employer is not required to take any ‘particular steps’ in carrying out the
dismissal, it is commonly accepted practice that notice in explicit and plain and clear terms
must be given regarding termination of an employee except in cases of serious misconduct.12 It
is a statutory protection derived from the principles of procedural fairness that require
employees to be treated fairly before a decision is made regarding their livelihood.13
[26] The Applicant should have received some form of notification that she would be
terminated on the basis that she was unable to perform the inherent requirements of her role. In
the alternative, if accepting the fact that Mrs Fisher asked to be terminated from her employment
during this phone call, notice of the termination should be given for her to consider the option
of whether she wished to be terminated.
https://www.fwc.gov.au/documents/decisionssigned/html/2018fwcfb3346.htm
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[27] I find that the Applicant was not sufficiently notified of the reason for her dismissal and
did not have an opportunity to respond. The only notification which the Applicant may have
received was a phone call with Mr Bensley on 5 December 2022 that she would be terminated.
(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; (e) if the dismissal related to
unsatisfactory performance by the person – whether the person had been warned about that
unsatisfactory performance before the dismissal
[28] These factors are irrelevant to the present case.
(f) and (g) the degree to which the size of the employer’s enterprise and the absence of
dedicated human resource management expertise would be likely to impact on the procedures
followed
[29] The Respondent is a medium sized employer which does not have a dedicated human
resource management expertise. However, it is a member of the Victorian Chamber of
Commerce and Industry to which they could have consulted regarding the potential dismissal
of the Applicant.
[30] The Respondent may have been more informal with the procedure considering Mrs
Fisher’s length of service, her health concerns, and that she was a dedicated and well-
performing employee of the Respondent. This is a matter considered in respect of other factors.
(h) any other matters that the FWC considers relevant
[31] Other factors that I consider relevant to the dismissal is the impact of the dismissal on
the Applicant’s personal or economic situation, her ability to find alternative work,14 along with
her work performance and history with the Respondent.15 These factors can be considered in
weighing the harshness of the dismissal per the Full Bench decision in Queensland Rail T/A
Queensland Rail v Michael Rainbow [2022] FWCFB 147 at [69] – [71].
[32] The Applicant had worked for the Respondent for 33 years, where there had been no
other issues with her performance that were raised by the Respondent. The Applicant is a
woman of senior years, who has only worked with Carpet Call for 33 years, in an area with
limited employment opportunities for someone of her age and skill set. The termination of her
employment has had a significant impact on her and her family. Mrs Fisher had been doing a
role which was exclusively done in the office she worked at.
[33] The Respondent recognised the Applicant’s loyalty and commitment with Carpet Call.
When Mrs Fisher was fit to work, the Respondent was open for Mrs Fisher to find a role that
would be suitable to her.
[34] The Respondent had organisational difficulties with Mrs Fisher’s absence as they did
not know a possible date of return. When the Respondent moved the Applicant’s role to the
https://www.fwc.gov.au/documents/decisionssigned/html/2022fwcfb147.htm
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Melbourne Office, the Applicant could have possibly been provided a redundancy if the
Respondent did not require her to perform her role.
Conclusion
[35] On the balance of probabilities, I am satisfied that the Applicant’s dismissal was harsh,
unjust or unreasonable in consideration of all the relevant factors and the evidence provided by
the parties. The Applicant’s long service with the Respondent, and the failure by the Respondent
to provide an opportunity to respond regarding her potential termination outweigh the valid
reasons raised by the Respondent.
[36] Therefore, for the reasons given above, I am satisfied that the Applicant has been
unfairly dismissed. I turn now to remedy.
Remedy
[37] Given that I have found that the Applicant’s dismissal was unfair, it is necessary to
consider the question of remedy. The Applicant has made an application under s. 394 of the Act
in determining the Applicant’s remedy for unfair dismissal.
[38] Section 390 of the Act provides that:
“390 When the FWC may order remedy for unfair dismissal
(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the
payment of compensation to a person, if:
(a) the FWC is satisfied that the person was protected from unfair dismissal
(see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) The FWC may make the order only if the person has made an application under
section 394.
(3) The FWC must not order the payment of compensation to the person unless:
(a) the FWC is satisfied that reinstatement of the person is inappropriate;
and
(b) the FWC considers an order for payment of compensation is
appropriate in all the circumstances of the case.”
[39] The Applicant and Respondent have stated that reinstatement is something that they do
not wish to consider at this stage. As a result, I do not find this to be an appropriate remedy.
[40] Section 392 sets out the considerations for awarding compensation:
“Compensation
(1) An order for the payment of compensation to a person must be an order that
the person’s employer at the time of the dismissal pay compensation to the
person in lieu of reinstatement.
[2023] FWC 1333
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Criteria for deciding amounts
(2) In determining an amount for the purposes of an order under subsection (1),
the FWC must take into account all the circumstances of the case including:
(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would have
been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the
person because of the dismissal; and
(e) the amount of any remuneration earned by the person from employment
or other work during the period between the dismissal and the making of
the order for compensation; and
(f) the amount of any income reasonably likely to be so earned by the
person during the period between the making of the order for
compensation and the actual compensation; and
(g) any other matter that the FWC considers relevant.
[2023] FWC 1333
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Misconduct reduces amount
(3) If the FWC is satisfied that misconduct of a person contributed to the
employer’s decision to dismiss the person, the FWC must reduce the amount it
would otherwise order under subsection (1) by an appropriate amount on account
of the misconduct.
Shock, distress etc. disregarded
(4) The amount ordered by the FWC to be paid to a person under subsection (1)
must not include a component by way of compensation for shock, distress or
humiliation, or other analogous hurt, caused to the person by the manner of the
person’s dismissal.
Compensation cap
(5) The amount ordered by the FWC to be paid to a person under subsection (1)
must not exceed the lesser of:
(a) the amount worked out under subsection (6); and
(b) half the amount of the high income threshold immediately before the
dismissal.
(6) The amount is the total of the following amounts:
(a) the total amount of remuneration:
(i) received by the person; or
(ii) to which the person was entitled; (whichever is higher) for
any period of employment with the employer during the 26
weeks immediately before the dismissal; and
(b) if the employee was on leave without pay or without full pay while so
employed during any part of that period—the amount of remuneration
taken to have been received by the employee for the period of leave in
accordance with the regulations.”
[41] The established approach to assessing compensation in unfair dismissal cases was set
out in Sprigg v Paul Licensed Festival Supermarket,16 and has been applied and developed by
Full Benches of the Commission in the context of the current Act.17
[42] In short, the authorities indicate that assessing compensation involves a four-step
process, noting that the guidelines are not a substitute for the words in the Act:
“Step 1: Estimate the remuneration the employee would have received, or have been
likely to have received, if the employer had not terminated the employment
(remuneration lost). I also take into account the length of service with the employer18
and the ability to find a new role as a relevant factor in calculating compensation per
s392(2).
Step 2: Deduct monies earned since termination.19
Step 3: Discount the remaining amount for contingencies.20
Step 4: Calculate the impact of taxation to ensure that the employee receives the actual
amount they would have received if they had continued in their employment.”
[2023] FWC 1333
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Step 1: Estimate the remuneration the employee would have received, or have been likely to
have received, if the employer had not terminated the employment (remuneration
lost).
[43] The Respondent states that had a dismissal process taken place in regard to seeking more
detailed medical evidence, or a more in-depth opportunity to show cause that it would have
extended the Applicant’s employment at the Respondent for no longer than 3-5 weeks.
[44] If the Respondent was unable to determine when the Applicant could have returned to
work, her role could have been restructured in a manner which could have possibly granted the
Applicant a genuine redundancy. Had this occurred, the Applicant would have been entitled to
a redundancy of 12 weeks.
[45] There is uncertainty as to how long the Applicant would have remained employed with
the Respondent since there was no clear return to work date. The Applicant had been working
with the Respondent for 33 years, is at an older age close to retirement, and her role was
primarily paper based. It is assumed that had the Applicant had a clearance to return to work,
she would still be employed with CarpetCall until her retirement.
[46] The full 26 weeks will be applied which amounts to $32,500.
Step 2: Deduct monies earned since termination.
[47] The Applicant has not been employed during the termination. No monies will be
deducted under this step.
Step 3: Discount the remaining amount for contingencies.
[48] The contingencies are that the Applicant was unable to perform the inherent
requirements of her role and the Respondent have been required to find a replacement to cover
her role. It was uncertain when she would be able to return to work and therefore there was a
valid reason for dismissal.
[49] I accept that there is a contingency in that the Applicant’s return to work date was
unclear. A deduction of 5 weeks is made in that the Applicant could have been clearer to the
Respondent regarding her return-to-work plan. This amounts to $6,250. The medical
certificates alone would not have assisted the Respondent in finding an appropriate role for the
Applicant.
[50] The Applicant was not in a position to mitigate her losses considering that she had been
dealing with health issues in return back to the workforce. The effect of this order will not affect
the viability of the Respondent as they are medium sized business which is not under financial
hardship.
Step 4: Calculate the impact of taxation to ensure that the employee receives the actual amount
he or she would have received if they had continued in their employment.”
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[51] In Bowden v Ottrey Homes Cobram and District Retirement Villages,21 the Full Bench
noted that in relation to the fourth step, the usual practice is to settle a gross amount and leave
taxation for determination. I will leave the issue of taxation for determination by the
Respondent.
Conclusion
[52] I see that there are no issues of viability of the Respondent paying the Applicant upon
issuing this Order. The Respondent is ordered to pay the sum of $26,250 gross within 21 days
on issuing this Decision to the Applicant’s nominated bank account that was on payroll. I Order
accordingly.
DEPUTY PRESIDENT
Appearances:
Mrs K. Fisher for the Applicant
Mr T. Fuimaono-Page on behalf of the Respondent
Hearing details:
12 April 2023 via Microsoft Teams
Brisbane
Printed by authority of the Commonwealth Government Printer
PR762836
1 Fair Work Act 2009 (Cth) s.394.
2 Ibid s.396.
3 Witness Statement of Grace Zhou [4]-[5].
4 Sayer v Melsteel Pty Ltd [2011] FWAFB 7498 [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP,
Lacy SDP, Simmonds C, 21 March 2002) [69].
5 Raj Bista v Group Pty Ltd t/a Glad Commercial Cleaning [2016] FWC 3009.
6 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
7 Ibid.
8 [2021] FWC 4 at 118.
9 Jetstar Airways Pty Limited v Ms Monique Neetson-Lemkes [2013] FWCFB 9075 at [53]
10 Ibid 55.
WORK COMMISSION THE SENS
https://www.fwc.gov.au/documents/decisionssigned/html/2011fwafb7498.htm
https://www.fwc.gov.au/documents/decisionssigned/html/pr915674.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2016fwc3009.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2013fwcfb9075.htm
[2023] FWC 1333
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11 Ibid; J Boag and Son Brewing Pty Ltd v Allan John Button [2010] FWAFB 4022.
12 Chubb Security Australia Pty Ltd v Thomas (2000) AIRCFB at [41] Print S2679 (McIntyre VP, Marsh SDP and Larkin C);
Crozier v Palazzo Corporation Pty Ltd [2000] 98 IR 137 at 73 (Ross VP, Acton SDP and Cribb C); Previsic v Australian
Quarantine Inspection Services, Print Q3730 (AIRC, Holmes C, 6 October 1998). The principles still apply to the
provisions of s.389(b) and (c) of the Fair Work Act 2009 (Cth), see William Eskander v Visy Board Pty Ltd [2021] FWC
3122 (Harper-Greenwell C) upheld in [2021] FWCFB 6036.
13 Crozier v Palazzo Corporation Pty Ltd [2000] 98 IR 137 at 73 (Ross VP, Acton SDP and Cribb C)
14 Ricegrowers Co-operative Limited v Schliebs, PR908351 (AIRCFB, Duncan SDP, Cartwright SDP, Larkin C, 31 August
2001) at para. 27.
15 Streeter v Telstra Corporation Limited [2008] AIRCFB 15 (Acton SDP, Cartwright SDP, Larkin C, 24 January 2008) at
para. 25, [(2008) 170 IR 1];
16 (1998) 88 IR 21.
17 Bank of Sydney Ltd T/A Bank of Sydney v Repici [2015] FWCFB 7939
18 Fair Work Act 2009 (Cth) s392(2)(b) -(c) and s392(2)(g).
19 Ibid s392(2)(e)
20 Ibid s392(2)(a), (d) and (f).
21 [2013] FWCFB 431
https://www.fwc.gov.au/documents/decisionssigned/html/2010fwafb4022.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2021fwc3122.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2021fwc3122.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2021fwcfb6036.htm
https://www.fwc.gov.au/documents/decisionssigned/html/pr908351.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2015fwcfb7939.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2013fwcfb431.htm
