Note: An appeal pursuant to s.604 (C2011/3654) was lodged against this decision and the order arising from this decision [PR507042] - refer to Full Bench decision dated 10 June 2011 [[2011] FWAFB 2929] for result of appeal.
[2011] FWA 1058 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Maria-Anna Owens
v
Allied Express Transport Pty Ltd
(U2010/12466)
COMMISSIONER HAMPTON |
ADELAIDE, 28 FEBRUARY 2011 |
Termination of employment - pregnancy - changes in work allocation and remuneration - whether unilateral in nature - whether dismissal at the initiate of the employer - whether dismissal unfair - compensation.
Background and case outline
[1] Ms Marie-Anna Owens (the applicant) has made an application to Fair Work Australia claiming that she has been dismissed by Allied Express Transport Pty Ltd (the respondent or the employer) and that it was unfair.
[2] The matter was subject to conciliation which did not resolve the file and it has now been assigned to me to determine the application under the relevant provisions of the Fair Work Act 2009 (the Act).
[3] As this matter involves contested facts, and given the nature of the issues and the representation of both parties, I determined that this matter would be subject to a hearing. 1
[4] Mr Healy (of counsel) appeared with permission for the applicant and Mr Hassett (solicitor) appeared with permission for the respondent.
[5] This matter involves some proposals and changes within the respondent’s workplace that were undertaken in the context of the applicant’s pregnancy. What is in issue includes whether there was an agreement to those changes and/or whether these changes remained an option the applicant was free to accept or reject at all relevant times.
[6] The applicant contends that there was an agreement in principle to move to a less onerous role, however at no time was there an agreement as to the details of that role or the reduction in remuneration that might accompany the change. Further, the applicant argued that the change in role and the significant drop in remuneration were therefore unilaterally made by the employer and when combined with the manner of introduction was such that she was entitled to treat the employment relationship as being at an end and for such to be considered a dismissal at the initiative of the employer.
[7] The respondent contends that the changes were consensual and designed to accommodate the applicant’s desire to “come off the road” in the immediate period before commencing her maternity leave. Further, the respondent argues that the new role and remuneration remained an option and that the applicant could at any time have insisted on resuming (retaining) her substantive role.
[8] In that light, the employer contends that there was no dismissal at its initiative but rather an attempt by the applicant to retain her full wage without undertaking the accompanying duties.
The evidence
[9] The applicant gave evidence in support of her case and provided some documentation accompanying her witness statement including various letters from the respondent purporting to set out her original and revised employment conditions.
[10] The respondent led evidence (and tendered some associated documentation) from the following:
[11] The respondent did not lead evidence from Mr Colin McDowell, its Chief Executive Officer, who had an involvement in the employment of the applicant and determined the final remuneration to be applied to the revised role. In addition, Mr John Richardson, Human Resources Manager for the respondent, who apparently authored some of the critical correspondence, was also not called.
[12] Another employee of the respondent, Ms Sue Penley was also not called. The applicant gave evidence that Ms Penley, who took over the role from her, was present during a key (and disputed) conversation with Mr Preece. In that regard I note that this suggestion was not made in the original witness statement and the respondent would not have been on notice to that end.
[13] Mr Healy for the applicant contended that I should draw an adverse inference from the failure to call these witnesses. Given that he was not involved in any discussions with the applicant, I consider that the evidence of Mr Richardson would have been peripheral. The evidence of Mr McDowell would have been directly relevant to the dispute between the parties as to the make-up of the applicant’s original remuneration package. There is no suggestion on either case that Mr McDowell spoke to the applicant during the latter course of the events that have led to this application. Ms Penley’s evidence as to the disputed conversation could have been relevant however the capacity for Ms Penley to have heard the conversation was not put to Mr Preece and I am in all of these circumstances reluctant to make a finding on this point.
[14] I accept that in the absence of a satisfactory explanation for evidence not being called when a fact is in issue, it is permissible (but not necessary) to draw an inference that the evidence would not have assisted the only party who was in a position to call that evidence: Jones v Dunkel and Another [1959] HCA 8; (1959) 101 CLR 298. Mr Hassett for the respondent contended that there should be reasonable limits on the extent of evidence that had to be called given the nature of these proceedings and that no inference should be drawn.
[15] In this case I do not consider that it is appropriate or indeed necessary to draw a negative inference as sought by the applicant. However, what is clear is that the absence of this evidence means I must determine the matter based on that actually before Fair Work Australia. In particular, the dispute about the formation of the original employment package must be considered based upon the competing evidence of the applicant and the two respondent’s witnesses without any weight being given to the suggestion that Mr McDowell may have been the missing link in the negotiations.
[16] I turn now to the witnesses called. For various reasons I treat all of the evidence with some caution. I found the applicant to be a generally convincing witness. It is clear to me however that her perspective as to her treatment by the respondent has impacted on her evidence to some degree. In particular, the suggestion of some plan to remove her from her position, which she did not maintain under cross-examination, was in my view a product of her feelings rather than an objective view. On the critical factual issues however, I generally accept her evidence.
[17] Ms McDowell was also in general terms a credible witness however there were direct contradictions in her evidence about the formation of the original employment contract and I consider that some key elements of a conversation with the applicant on 13 August 2010 have been exaggerated.
[18] Mr Preece was not a convincing witness. Even allowing for the vagaries associated with giving evidence, he had almost no direct recall of the events in question. He relied almost totally on his witness statement and whilst this was prepared some months ago and closer to the events in question, I cannot rule out that the statement itself contains elements of various events that have become confused. I also note that some of the events were some months prior to the statement being done and if his recall of those events was the same as those of more recent times, the statement itself would contain very little direct recollection on those matters. In any event, I found his explanation of some key elements to be unconvincing. There was also some tension between the evidence of Ms McDowell and Mr Preece regarding the formation of the applicant’s original remuneration package.
The facts of the matter
[19] Having regard to the evidence before Fair Work Australia and to my findings as to the credibility of the witness evidence, I find as follows.
[20] The applicant commenced employment with the respondent on 11 January 2010 as its Customer Service and Accounts Manager in South Australia. The applicant reported to Mr Preece but also had a parallel responsibility to Ms McDowell.
[21] The applicant has previously worked for the respondent for a period of four years ending in 2007.
[22] The applicant’s role included managing a portfolio of clients and managing and supervising staff. The role also involved extensive travel visiting clients using her own car which took up something like two and half days per week.
[23] The applicant’s remuneration package was $70,000 per annum inclusive of 9 percent superannuation. This included an allowance for the use of the applicant’s own vehicle. There is a dispute as to the extent of the vehicle allowance forming part of that figure and no separate provision in that regard is noted in the employment documentation. The applicant contends that it was $5,000 whereas the respondent asserts that it was $10,000.
[24] The respondent’s case was that this figure was negotiated with head office in Sydney by the applicant following an initial discussion with Mr Preece and was $10,000 in line with other similar packages. However, Ms McDowell denied in her testimony that this was discussed with her and there is no evidence that anyone else at head office negotiated the details of the package.
[25] The applicant contends that Mr Preece gave an initial indication that the remuneration would be $65,000 inclusive of a $5,000 allowance for use of the vehicle and that following a subsequent discussion, the package figure was agreed at $70,000. As outlined above, the amount specified for the vehicle usage is not set out in the contract of employment and I found the evidence of Mr Preece on these events to be unconvincing.
[26] Based upon the evidence before Fair Work Australia I find that the applicant was originally informed the allowance for the vehicle would be $5,000 per annum and when the revised offer of $70,000 was negotiated, there was no discussion that this allowance was to be $10,000. As a result, the applicant’s reasonable expectation was that this component was $5,000 and this was the basis upon which the contract was formed. I note also that this is consistent with the applicant’s response upon being informed that the move to come off the road would involve an immediate loss of $10,000.
[27] In April 2010, the applicant informed Mr Preece that she was pregnant. It was subsequently agreed that she would take (unpaid) maternity leave from 29 October 2010 for a period of six months. It was also a mutual understanding and expectation that the applicant would resume her role upon the conclusion of that leave.
[28] At around this time, Ms Penley, who had previously worked for the respondent in the role then occupied by the applicant, resumed employment with the employer.
[29] There were no medical complications with the applicant’s pregnancy although particularly in the latter period, she became tired and the travel associated with her role became somewhat taxing. This became apparent to Mr Preece who apparently (and not inappropriately) relayed the circumstances to others in the company.
[30] On 1 July 2010, the applicant was informed that she was required to attend a work conference in Sydney. On the following day, Ms McDowell contacted the applicant and offered to have Ms Penley attend in lieu of the applicant. It is evident to me that this was motivated by a concern to assist the applicant. The applicant agreed provided that this would not jeopardise her position with the employer.
[31] The applicant did however harbour concerns about her position with Ms Penley being back in the picture and she raised these with Mr Preece who confirmed that she should not be worried.
[32] It is also the case that the concept of the applicant taking maternity leave and Ms Penley filling that role in her absence was discussed between the applicant and Ms McDowell during the course of subsequent informal discussions. There is however no reliable suggestion that any agreed changes to the applicant’s job role or remuneration were discussed in that context.
[33] During this period, the applicant took various days off as sick leave including on 4 and 5 August 2010. Upon her return to work on 6 August, there was a discussion between the applicant and Mr Preece about the applicant’s work. Mr Preece considered that the applicant looked tired and that the amount of travelling was becoming difficult for her. The applicant accepted that she was tired and raised the extent of hours being worked in that context. I find that the applicant was working extensive hours, due to the nature of the role and the absence of some other staff during that period.
[34] I find that Mr Preece offered to explore the transfer of some of the applicant’s work, being the account manager role with the associated travel, to Ms Penley who would be taking over the applicant’s position whilst she was on maternity leave. I also find that the concept of the applicant coming off the road, losing her travel allowance and the prospect of the applicant undertaking a lesser role, was discussed although no details were broached and no agreement was made. It was however agreed that Mr Preece would approach Ms McDowell to discuss the matter and this was welcomed by the applicant.
[35] On 13 August 2010, the applicant discussed coming off the road with Ms McDowell who had telephoned her to discuss the matter. There is a dispute as to the content and outcome of this discussion. For reasons outlined earlier, I do not fully accept the evidence of either party given that in my view aspects of this conversation have been subject to some post event gloss. I find that the applicant confirmed that she desired to come off the road and acknowledged that this was likely to involve a reduction in salary, partly as a result of the loss of the travelling allowance and potentially a change in her role. The applicant was advised that coming off the road remained an option rather than any requirement of the employer. There were however no details about the new role and the discussions about any reduction in pay were conceptual. Even if an approximate loss of salary was speculated by Ms McDowell, there was in my view little more than an agreement in principle to explore the details of a change in role to be worked through with Mr Preece and Ms Penley.
[36] On 17 August 2010, Mr Preece advised the applicant that Ms McDowell had agreed to her coming off the road. He then gave the applicant a hand-written note outlining what he understood would be the reduction in salary ($10,000 plus superannuation). Mr Preece testified that the applicant indicated to the effect that coming off the road might be best and that she would discuss this with her husband. The applicant testified that she immediately rejected the loss of $10,000 and that she would not agree to the change.
[37] It is agreed that as a result of the conversation, Mr Preece requested that the applicant provide him with her employment contract and that the issue would be discussed with the applicant’s husband.
[38] I find that the applicant did not accept a reduction in the remuneration level of $10,000 and the fact that this was in issue led to discussions about the terms of the written contract. However, the concept of the applicant coming off the road remained an option. I also find that the subsequent discussion between the applicant and Mr Preece on 18 August 2010 was broadly consistent with this understanding.
[39] In light of those discussions, the applicant subsequently sought some clarification about her future role from Mr Preece on 19 August 2010 and was advised that he had not yet spoken to Ms McDowell.
[40] The applicant was absent on sick leave on Monday 23 August 2010.
[41] On 24 August 2010, Mr Preece discussed the proposed changes in role and remuneration with the applicant. There is also a dispute about the details and outcome of this conversation. I find that the applicant was expecting a proposal to change her account management duties, in order to take her off the road, and this was confirmed. However, the applicant was also advised that management had decided to transfer the Call Centre/Customer Services management duties to Ms Penley and this was not previously discussed in any detail with the applicant and was not agreed.
[42] On either version of this discussion, the applicant expressed strong reservations about the changes and indicated that she had been given little if any choice and that the respondent had planned to move her out all along.
[43] Mr Preece was concerned enough with the tone of the discussion that he sent his version of the conversation to the national HR manager. He did however consider that the applicant had agreed to the changes and these were then implemented with an email being forwarded by Ms Penley to all relevant staff advising of the new roles. Even on Mr Preece’s evidence, which I do not fully accept for reasons outlined earlier, it could not be said that all of these changes were agreed by the applicant. In any event, I find that the applicant had not agreed to the changes which were then being implemented.
[44] On 25 August 2010, Mr Preece gave the applicant a letter that had apparently been prepared by Mr Richardson. That letter was in the form of a new employment contract “confirming” a transfer to the position of Telephonist/Customer Service effective from 23 August 2010. The remuneration package, including superannuation, was cited as being $60,000 (a reduction of $10,000). The applicant declined to sign the letter and walked out of the meeting.
[45] The applicant was very distressed about these events and having consulted her obstetrician, took sick leave on 26, 27 and 30 August 2010.
[46] Upon returning to work on Tuesday 31 August 2010, the applicant was given a new and further revised letter from Mr Richardson dated 27 August 2010 purporting to confirm a new salary package of $52,000 (including superannuation); being a further reduction of $8,000 per annum. I interpose that this salary level was apparently set by Mr Colin McDowell in the context of what he understood to be the new position being undertaken by the applicant. I add however that there is no suggestion that there was any discussion with the applicant at this time about this further change prior to it being advised. The applicant also refused to sign the latest version of her employment terms.
[47] The applicant worked out the remainder of the week and took her pre-arranged annual leave for the week commencing 6 September 2010.
[48] During her annual leave, the applicant sought legal advice and on 7 September 2010 her solicitors wrote to the respondent claiming that she had not agreed to any of the purported changes in employment conditions and indicating that she considered herself to have been dismissed.
[49] On 13 September 2010, solicitors for the respondent wrote to the applicant’s solicitors indicating, amongst other matters, that the applicant had requested to come off the road and that this had been accommodated. Further, the respondent advised that should the applicant wish to go back onto the road and retain her $70,000 package, this could be done.
[50] The applicant, through her solicitors rejected that proposition.
[51] I leave aside for the moment the evidence regarding the anticipated maternity leave and the post “dismissal” conduct of the applicant. It is however presently relevant to note that the each of the reductions in salary package were applied by the respondent in line with the 25 and 27 August 2010 letters.
Was there a dismissal at the initiative of the employer?
[52] Section 386 of the Act provides as follows:
“386 Meaning of dismissed
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
(2) However, a person has not been dismissed if:
(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or
(b) the person was an employee:
(i) to whom a training arrangement applied; and
(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;
and the employment has terminated at the end of the training arrangement; or
(c) the person was demoted in employment but:
(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and
(ii) he or she remains employed with the employer that effected the demotion.
(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.”
[53] On this aspect of the case, the applicant contended that the actions of the respondent, in unilaterally varying the contract of employment in the manner that it did, represented a breach of the contract amounting to a repudiation and conferring upon the applicant the right to regard the contract as being at an end. This, it was argued, was a dismissal at the initiative of the respondent within the meaning of s.386 of the Act and the relevant authorities. 2
[54] The respondent did not quibble with the thrust of the authorities relied upon by the applicant but contended on this issue that its conduct could not be found to represent a unilateral variation to the terms and conditions of employment or intended to bring employment to an end. Rather, it argued that its conduct was to give the applicant a choice that remained available at all relevant times. This it compared and contrasted to the circumstances considered in other cases where related issues had been recently considered. 3 On that basis, no dismissal within the meaning of the Act should be found in this case.
[55] Although applied under the previous Act, the following approach of the Full Bench of the Australian Industrial Relations Commission in O’Meara v Stanley Works Pty Ltd 4 in my view remains generally apposite:
“[21] In this Commission the concepts have been addressed on numerous occasions and by a number of Full Benches. In Pawel v Advanced Precast Pty Ltd (Pawel) a Full Bench said:
“[13] It is plain that the Full Court in Mohazab considered that an important feature in the question of whether termination is at the initiative of the employer is whether the act of an employer results directly or consequentially in the termination of the employment and that the employment relationship is not voluntarily left by the employee. However, it is to be noted that the Full Court described it as an important feature. It plainly cannot be the only feature. An example will serve to illustrate this point. Suppose an employee wants a pay rise and makes such a request of his or her employer. If the employer declines and the employee, feeling dissatisfied resigns, can the resignation be said to be a termination at the initiative of the employer? We do not think it can and yet it can be said that the act of the employer i.e. refusing the pay rise, has at least consequentially resulted in the termination of the employment. This situation may be contrasted with the position where an employee is told to resign or he or she will be terminated. We think that all of the circumstances and not only the act of the employer must be examined. These in our view, will include the circumstances giving rise to the termination, the seriousness of the issues involved and the respective conduct of the employer and the employee. In the instant case the uncontested factual findings are that the applicant had for almost the whole of his employment performed welding duties; that there was no objective threat to his health and safety involved in the requirement that he undertake welding duties so long as it was not on a continuous basis and that the welding he was required to do was not continuous.”
[22] In the Full Bench decision of ABB Engineering Construction Pty Ltd v Doumit (ABB Engineering) it was said:
“Often it will only be a narrow line that distinguishes conduct that leaves an employee no real choice but to resign employment, from conduct that cannot be held to cause a resultant resignation to be a termination at the initiative of the employer. But narrow though it be, it is important that that line be closely drawn and rigorously observed. Otherwise, the remedy against unfair termination of employment at the initiative of the employer may be too readily invoked in circumstances where it is the discretion of a resigning employee, rather than that of the employer, that gives rise to the termination. The remedies provided in the Act are directed to the provision of remedies against unlawful termination of employment. Where it is the immediate action of the employee that causes the employment relationship to cease, it is necessary to ensure that the employer’s conduct, said to have been the principal contributing factor in the resultant termination of employment, is weighed objectively. The employer’s conduct may be shown to be a sufficiently operative factor in the resignation for it to be tantamount to a reason for dismissal. In such circumstances, a resignation may fairly readily be conceived to be a termination at the initiative of the employer. The validity of any associated reason for the termination by resignation is tested. Where the conduct of the employer is ambiguous, and the bearing it has on the decision to resign is based largely on the perceptions and subjective response of the employee made unilaterally, considerable caution should be exercised in treating the resignation as other than voluntary.”
[23] In our view the full statement of reasons in Mohazab which we have set out together with the further explanation by Moore J in Rheinberger and the decisions of Full Benches of this Commission in Pawel and ABB Engineering require that there to be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. It is not simply a question of whether “the act of the employer [resulted] directly or consequentially in the termination of the employment.” Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution as they may not give full weight to the decision in Mohazab. In determining whether a termination was at the initiative of the employer an objective analysis of the employer’s conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign.” 5
[56] An objective consideration of the respondent’s conduct is required. Further, in this particular case it is clear that Fair Work Australia must consider whether that conduct was of such a nature that the conclusion of the employment relationship was the probable result or that the applicant’s actions to accept the repudiation was forced by the course of conduct of the employer.
[57] I have found that although the concept of the applicant coming off the road was agreed in principle, there was no agreement to the terms of any revised role or to a significant reduction in the remuneration package. These changes were applied by the respondent in announcing the new role and actually reducing the applicant’s remuneration package initially by $10,000 and later by $18,000.
[58] When considered in the context of the decision to push ahead with these changes despite the evident lack of agreement, and in the case of the $18,000 reduction, the absence of any discussions leading to that further change, this conduct is such that the probable result was the conclusion of the employment relationship. To the extent that the applicant’s solicitor’s letter of 7 September 2010 or her failure to agree to resume her duties following the respondent’s solicitor’s letter of 13 September 2010 were considered to be a resignation, this in my view was forced by the conduct of the respondent within the meaning of s.386 of the Act.
[59] In reaching that conclusion, I have considered the fact that the applicant did not contact Ms McDowell after the receipt of the advice that the salary package was to be reduced. This would have been an option and is a relevant factor. However, despite knowledge within the organisation that the applicant had expressed serious concerns about the proposals and the apparent motive of the employer, and later refused to sign the amended terms of employment, no one within Human Resources or a decision maker from head office contacted the applicant during that period. This aspect also forms part of the objective consideration of the overall circumstances and the respondent’s course of conduct.
[60] I turn now to the exceptions in s.386(2) of the Act. To the extent that the position of Telephonist/Customer Service was a demotion for the applicant, it did in my view involve a substantial reduction in remuneration and duties. The loss of $18,000 in the context of the original package of $70,000 is significant and this alone is sufficient for the exception in s.386(2)(c) not to apply. The exceptions in s.386(2)(a) and (b) are not relevant in this matter.
[61] In the circumstances I find that the applicant was dismissed by the respondent within the meaning of s.386 of the Act.
Was the dismissal of the applicant harsh, unjust or unreasonable?
[62] Section 385 of the Act provides as follows:
“385 What is an unfair dismissal
(1) A person has been unfairly dismissed if FWA is satisfied that:
(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.”
[63] I have found that the applicant was dismissed by the respondent, the employer is not a small business within the meaning of the Act and this is not a matter involving a redundancy. As a result, I must consider whether the dismissal was harsh, unjust or unreasonable.
[64] The Act relevantly provides as follows:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(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 FWA considers relevant.”
[65] I have earlier set out the general contentions of the parties. The applicant contended that the dismissal met each of the criteria established by s.385(1)(b) of the Act. 6 The respondent did not concede that any (reviewable) dismissal found by the Tribunal would be unfair however nothing specific was put in that regard.7
[66] It is clear that s.387 of the Act contemplates that an overall assessment as to the nature of the dismissal must be made by Fair Work Australia. In so doing, the Act sets out a number of considerations that must, where relevant, be weighed up in totality. 8
[67] It is convenient therefore to use the various provisions of s.387, with reference to the relevant circumstances, to outline my consideration of the matter.
Section 387(a) – whether there was a valid reason for the dismissal related to the applicant’s capacity or conduct (including its effect on the safety and welfare of other employees).
[68] Valid in this context is generally considered to be whether there was a sound, defensible or well founded reason for the dismissal. Further, in considering whether a reason is valid, the requirement should be applied in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. That is, the provisions must be applied in a practical, commonsense way to ensure that the employer and employee are each treated fairly. 9
[69] The attempts to accommodate the applicant’s condition as she approached her confinement were not in themselves inappropriate, however there was no basis to change her role or remuneration package in light of her refusal to accept those changes. It is common ground that the applicant was a good and effective employee and no performance or conduct concerns existed. Indeed, it is clear that the applicant was a conscientious, hard working member of the respondent’s staff.
[70] In that light, there was no valid reason to dismiss the applicant.
Section 387(b) – whether the applicant was notified of the reasons for dismissal.
[71] The applicant was certainly advised by the respondent that it (wrongly) considered that she had agreed to the changes and to that extent the reasons for its actions were notified.
Section 387(c) – whether the applicant was given an opportunity to respond to any reason related to her capacity or conduct.
[72] The reasons for dismissal did not relate to the applicant’s capacity or conduct.
Section 387(d) – any unreasonable refusal by the respondent to allow the applicant to have a support person present to assist in any discussions relating to her dismissal.
[73] No request for a support person was made by the applicant in connection with her dismissal.
Section 387(e) – if the dismissal is related to unsatisfactory performance by the applicant – whether she has been warned about that unsatisfactory performance before the dismissal.
[74] The applicant’s dismissal was not related to unsatisfactory performance.
Section 387(f) – the degree to which the size of the respondent’s enterprise would be likely to impact on the procedures followed in effecting the dismissal.
Section 387(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.
[75] The respondent is a relatively large organisation. It had dedicated human resources specialists and these were apparently involved in some of the decisions and certainly the correspondence that passed between the respondent and the applicant. The irony is that in this case the lack of application of reasonable human resources practices has largely contributed to the making of this application.
Section 387(h) – any other matters that FWA considers relevant.
[76] The applicant’s employment for a relatively short period may in other circumstances be a factor that is relevant to the nature of the dismissal. However in this case, the applicant had previously worked for the respondent for some years and the concept of the applicant taking maternity leave and then resuming her position was agreed. In that light there was nothing inherently uncertain or contingent about this employment relationship.
[77] The very poor treatment of the applicant, particularly in the context of the impending birth of her child and the agreed maternity leave, is also a relevant consideration.
[78] Having regard to the considerations raised by s.387 of the Act I find that the dismissal of the applicant was harsh, unjust and unreasonable.
Remedy
[79] Division 4 of Part 3-2 of the Act provides as follows:
Division 4—Remedies for unfair dismissal
390 When FWA may order remedy for unfair dismissal
(1) Subject to subsection (3), FWA may order a person’s reinstatement, or the payment of compensation to a person, if:
(a) FWA 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) FWA may make the order only if the person has made an application under section 394.
(3) FWA must not order the payment of compensation to the person unless:
(a) FWA is satisfied that reinstatement of the person is inappropriate; and
(b) FWA considers an order for payment of compensation is appropriate in all the circumstances of the case.
Note: Division 5 deals with procedural matters such as applications for remedies.
391 Remedy—reinstatement etc.
Reinstatement
(1) An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:
(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or
(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.
(1A) If:
(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and
(b) that position, or an equivalent position, is a position with an associated entity of the employer;
the order under subsection (1) may be an order to the associated entity to:
(c) appoint the person to the position in which the person was employed immediately before the dismissal; or
(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.
Order to maintain continuity
(2) If FWA makes an order under subsection (1) and considers it appropriate to do so, FWA may also make any order that FWA considers appropriate to maintain the following:
(a) the continuity of the person’s employment;
(b) the period of the person’s continuous service with the employer, or (if subsection (1A) applies) the associated entity.
Order to restore lost pay
(3) If FWA makes an order under subsection (1) and considers it appropriate to do so, FWA may also make any order that FWA considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.
(4) In determining an amount for the purposes of an order under subsection (3), FWA must take into account:
(a) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for reinstatement; and
(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.
392 Remedy—compensation
Compensation
(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.
Criteria for deciding amounts
(2) In determining an amount for the purposes of an order under subsection (1), FWA 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 FWA considers relevant.
Misconduct reduces amount
(3) If FWA is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, FWA 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 FWA 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 FWA 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.
393 Monetary orders may be in instalments
To avoid doubt, an order by FWA under subsection 391(3) or 392(1) may permit the employer concerned to pay the amount required in instalments specified in the order.
[80] The prerequisites of ss.390(1) and (2) have been met.
[81] Section 390 makes it clear that compensation is only to be awarded as a remedy where I am satisfied that reinstatement is inappropriate and that compensation is appropriate in all the circumstances. As a result, I must consider firstly whether reinstatement is inappropriate.
[82] The applicant does not seek reinstatement and given the circumstances leading to the dismissal and her evident attitude towards those with whom she would need to work, I am satisfied that reinstatement under the Act is inappropriate.
[83] Accordingly, I must, having regard to the considerations in the Act, determine whether compensation in lieu of reinstatement is appropriate and if so, to what extent.
[84] Section 392(2) requires me to take into account all of the circumstances of the case including the factors that are listed in paras (a) to (g). These factors include in ss.(g) any other relevant considerations. Without detracting from the overall assessment required by the Act, it is convenient to discuss the identified considerations under the various provisions.
The effect of the order on the viability of the employer’s enterprise
[85] The respondent conducts a substantial business and there is no indication that any order for compensation contemplated by the Act would impact upon the viability of the business.
The length of the person’s service with the employer
[86] The applicant was most recently employed by the respondent for approximately eight months. This is a relatively short period and subject to the consideration of the other circumstances impacting upon the nature of that service, must be taken into account.
The remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed
[87] This involves in part a consideration of the likely duration of the applicant’s employment in the absence of what I found to have been an unfair dismissal.
[88] It is likely that if not dismissed the applicant would have continued in her substantive role until the commencement of her maternity leave. This would involve a period of approximately seven weeks at the $70,000 package rate although in this particular case some allowance for contingencies should be made given the overall circumstances prevailing at the time. The agreed period of unpaid maternity leave was six months and it was jointly expected that the applicant would have resumed her former position. In that regard I note that the applicant was a dedicated, competent and apparently well regarded management employee.
[89] In all of the circumstances of this case, I consider that a period of twelve months from the conclusion of the employment relationship should be considered in terms of the remuneration that the applicant would have been likely to receive if she had not been dismissed. However, the agreed period of six months unpaid leave and an allowance for contingencies associated with both the period leading into the maternity leave and her planned return to full-time employment should be taken into account in assessing this loss. In this particular case, the allowance needs to comprehend, amongst other relevant considerations, the prospects that some alternative arrangements could have been agreed in either period, whilst noting that the length of the projected period. 10
[90] If not for the relatively short period of the applicant’s recent employment with the respondent, I would have considered a more extended projected period in making the above assessment.
The efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal
[91] The applicant gained some short-term employment following her dismissal and gave birth to a child in early December 2010. No reduction in the amount of compensation should in my view be made on this basis of (the lack of) efforts to mitigate. Indeed, the efforts of the applicant to seek and gain employment in that particular period reflect well upon the applicant’s capacity and work ethic.
[92] Given the circumstances prevailing at the time, I do not consider that it is appropriate to regard the applicant’s unwillingness to accept, what was in effect reinstatement when offered by the respondent immediately after the dismissal, as being a failure to mitigate the loss. In particular, the unilateral reduction of the further $8,000 per annum in that manner, given the circumstances already evident at that point, represented a further major breach of the fabric of the employment relationship.
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
[93] The applicant earned $2,178.76 from alternative employment following her dismissal and prior to the birth of her child. This should be taken into account in the final assessment of the compensation.
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
[94] This factor is not significant in this case given the birth of the applicant’s child and the time frames involved.
Any other matter that FWA considers relevant and the remaining statutory parameters
[95] Subject to the limitations under the Act, I have considered all of the circumstances of this case in determining the remedy.
[96] There is no misconduct that could reduce the amount otherwise payable as compensation, as provided by s.392(3) of the Act.
[97] In light of the express requirements of s.392(4) of the Act, I will make no allowance for any shock, distress or humiliation that may have been caused by the manner of the dismissal.
[98] The amount of compensation that I assess as appropriate is less than the maximum prescribed by s.392(5) of the Act as applied in this matter.
Conclusions and orders
[99] I find that the applicant was dismissed and that such was unfair within the meaning of the Act.
[100] I find that reinstatement is not an appropriate remedy in this case.
[101] I find that compensation is appropriate. Having regard to the considerations established by s.392 of the Act and to the present statutory charter I find that compensation should comprise a payment by the respondent to the applicant calculated as follows:
|
$35,000 |
|
($7,000) |
|
($2,179) |
|
$25,821. |
[102] I have for this purpose used the full package rate as this in my view is the rate of remuneration as contemplated by s.392(2) of the Act. 11 Given that this includes the superannuation contribution of nine percent, that proportion of the final amount may be paid by the respondent into the relevant superannuation fund on behalf of the applicant.
[103] The compensation payment, less any required deduction of taxation, is to be made within 14 days of this decision.
[104] An order to the above effect has been issued in conjunction with this decision.
COMMISSIONER
Appearances:
N Healy, counsel for the Applicant
J Hassett, solicitor for the Respondent
Hearing details:
2011
Adelaide
February 16
1 See ss.397, 398 and 399 of the Act.
2 Pawel V AIRC [1994] FCR 231; O’Meara v Stanley Works Pty Ltd PR973462.
3 Cauchi v Metal Coat [2010] FMCA 971; Harris v Pages Hire Centre NSW Pty Ltd t/as Pages Event Equipment [2010] FWA 8863.
4 PR973462, 11 August 2006 per Guidice J, Watson VP and Cribb C. This appeal was determined under the provisions of the Workplace Relations Act 1996 pursuant to the provisions of the Act as in force prior to the coming into operation of the Workplace Relations Amendment (Work Choices) Act 2005. As a result, the primary jurisdictional question was whether the applicant had been dismissed by the employer which was considered having regard to the formulation in the Termination of Employment Convention which in turn referred to termination at the initiative of the employer.
5 PR973462 (footnotes omitted).
6 Applicant’s outline of argument.
7 There was nothing in the respondent’s outline and an opportunity to put submissions was specifically provided during the hearing (Transcript PN 952).
8 Explanatory Memorandum Fair Work Bill 2008 para 1541.
9 Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 as cited in Potter v WorkCover Corporation, per Ross VP, Williams SDP, Foggo C PR948009, 15 June 2004 and endorsed by the Full Bench in Industrial Automation Group Pty Ltd T/A Industrial Automation [2010] FWAFB 8868, 2 December 2010 per Kaufman SDP, Richards SDP and Hampton C at par [36].
10 See the discussion of contingencies in Ellawala v Australian Postal Corporation AIRC Print S5109, 17 April 2000 per Ross VP, Williams SDP and Gay C and in Enhance Systems Pty Ltd v James Cox AIRC PR910779, 31 October 2001 per Williams SDP, Acton SDP and Gay C.
11 The Act relevantly uses the term “remuneration” rather than “ordinary rate of pay” or “full rate of pay”. The concept of remuneration imports the wider consideration of payments made directly or indirectly by the employer for the benefit of the employee. I note also that in this case the contact of employment used a packaged figure with the wage component noted.
Printed by authority of the Commonwealth Government Printer
<Price code C, PR506852>