[2013] FWC 1069

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FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Doreen Heagney
v
RJ Sanderson & Associates Pty Ltd
(U2012/12750)

COMMISSIONER BLAIR

MELBOURNE, 14 FEBRUARY 2013

S.394 - application for unfair dismissal remedy.

[1] The above matter is an application under s.394 of the Fair Work Act 2009 (the Act) for unfair dismissal remedy. The application was made by Ms Doreen Heagney (the Applicant) against her former employer, RJ Sanderson & Associates Pty Ltd (the Respondent). The matter was arbitrated on 10 December 2012 and the following decision (now edited) was handed down in transcript at the hearing:

[2] “The Applicant commenced employment with the Respondent on 29 July 2011, until the Applicant resigned her position on 17 August 2012. There is no doubt in the Tribunal's mind, and the parties concur, that there was a resignation by the Applicant. The question is whether or not that resignation can be construed as a constructive dismissal based upon the actions of the Respondent.

[3] The parties are aware that conversations occurred - one of those conversations was recorded - on 16 August 2012. A further conversation occurred on 17 August 2012. Those conversations went to the Respondent advising the Applicant, and seeking her cooperation, to move from the Frankston office to the Dandenong office based on a complaint lodged by an employee, an accountant at the Frankston office, and that complaint was directed towards Mr Sanderson, the director.

[4] What appears to have occurred is that in one of the conversations that was recorded and subsequently transcribed (the Tribunal had a discussion about the representations Mr Sanderson made in the conversation with the Applicant and what she thought those conversations meant) referred to a complaint being lodged and the term "lodged" was used twice, a reference to VCAT was referred to once, the term "caught" was used seven times in the conversation between Mr Sanderson and the Applicant, and the term "solicitor" was used once; that was in terms of Mr Sanderson seeking some advice from his solicitor.

[5] When one looks at those terms and in the context of the discussion between the Applicant and Mr Sanderson, the Tribunal is of the view, as unintentional as it may have been on the part of Mr Sanderson, that there was a misrepresentation of the complaint that had been lodged by the accountant at Frankston addressed to Mr Sanderson.

[6] The Applicant took from that conversation that a claim had been lodged in VCAT and that VCAT is a court of competent jurisdiction to deal with such claims, and given reference to the court mentioned several times in that one phone conversation believed that she was being taken to court by an employee without fully understanding (although Mr Sanderson did make some reference to her conduct, but without going into complete detail and he wanted to arrange a meeting for that to occur) that she was being taken to court by an employee of the Respondent.

[7] There was a subsequent conversation on Friday, 17 August 2012, arising from that conversation. The Tribunal has come to the conclusion that on the balance of probabilities there was something said in the conversation between the Applicant and Mr Sanderson that gave the Applicant the opinion or the view that if she resigned, then the matter would most likely not proceed to a court.

[8] It is on that basis that the Applicant submitted her resignation. The Tribunal is satisfied on the balance of probabilities that as unintentional as it may be, the resignation is a constructive dismissal.

[9] The parties have spoken about remedy in this particular matter and the Tribunal made reference earlier, in referring counsel for the Applicant to section 387 of the Fair Work Act 2009 (the Act), in determining whether the constructive dismissal was harsh, unjust and unreasonable.

[10] Taking into account those points, none of those points in the Tribunal's view are relevant to this particular matter.

[11] In determining the issue of remedy, remedy is governed by section 392 of the Act if reinstatement is not practicable. It has been said by Mr Sanderson that at the conciliation conference reinstatement would have been practicable. However, the issue of compensation was raised. Given the time between the conciliation and today's hearing, Mr Sanderson has come to the firm view that, in his words, given the untruths that have been told, reinstatement is no longer a viable option.

[12] The parties have tried to settle the matter by way of compensation, but have not agreed to an amount.

[13] In determining compensation, section 392 of the Act states:

[14] In determining compensation, if any, the Tribunal must take into account section 392(2):

(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.

[15] The Applicant has just over 12 months' service.

(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.

[16] The Tribunal is satisfied that the Applicant has been trying to find alternative employment.

(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.

[17] The Tribunal is advised that there has been no remuneration earned by the Applicant.

(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.

[18] That is not a matter that the Tribunal should give consideration to.

(g) any other matter that Fair Work Australia considers relevant.

[19] The effect of the order on the viability of the employer's enterprise has not been raised as an issue in terms of any compensation that might be awarded.

[20] The other issue that the Tribunal takes into account is:

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed.

[21] The Tribunal is satisfied that even if the Applicant had not submitted her resignation, given the circumstances surrounding the whole range of events that occurred - the formal complaint presented to Mr Sanderson, the fact that the Applicant was being transferred to Dandenong, the difficulties that that would have incurred because the Tribunal has, the same as Mr Sanderson, been made aware that the Applicant suffers dizzy spells and therefore cannot drive a vehicle - the Tribunal is satisfied that the employment period, if the resignation had not have been submitted, would not have lasted any more than three months.

[22] The Tribunal would, therefore, order that, 11 weeks' compensation at the rate the Applicant was paid as at 17 August 2012, be paid to her within a period of 14 days from the issue of the order.

[23] There being no further business, the Tribunal will stand adjourned.

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