[2013] FWC 545 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
L Frawley
v
Australian Carpet Cleaning Services P/L T/A Australian Carpet Cleaning Services
(U2012/11830)
SENIOR DEPUTY PRESIDENT WATSON |
MELBOURNE, 4 FEBRUARY 2013 |
Section 394 - Unfair dismissal - Compensation granted.
[1] This is an application, made by Ms L Frawley (the applicant) on 27 July 2012, pursuant to s.394 of the Fair Work Act 2009 (the Act) in respect of the termination of her employment by Australian Carpet Services P/L T/A Australian Carpet Cleaning Services (the respondent) (ACCS) on 20 or 23 July 2012.
The Fair Work Amendment Act 2012
[2] The Fair Work Amendment Act 2012, which amended the Act received Royal Assent on 4 December 2012. The amendments to the Act included the renaming of Fair Work Australia to the Fair Work Commission (the Commission), which came into effect on 1 January 2013.
[3] The Fair Work Amendment Act 2012 also made substantive amendments to Part 3-2 of the Act - Unfair dismissal - but none of those substantive amendments relevantly affects the matters for determination in the current matter.
[4] The current application was made, processed and heard before 1 January 2013 but is being determined after that date. For the purpose of this decision the tribunal is referred to by the nomenclature applicable at the relevant time. Citations of the Act are to the Act, as amended by the Fair Work Amendment Act 2012, referring to the Fair Work Commission (or FWC), rather than Fair Work Australia (FWA).
Matters for determination
[5] The application seeks relief in respect of the termination on the basis that the applicant was protected from unfair dismissal and was unfairly dismissed.
[6] There is no issue in respect of whether the applicant is “A person is protected from unfair dismissal”, within the meaning of s.382 of the Act.
[7] The issues for determination are whether the applicant has been unfairly dismissed, within the meaning of s.385 of the Act and, if so, what remedy, if any, should be applied.
[8] Section 385 of the Act defines an unfair dismissal, as follows:
“A person has been unfairly dismissed if FWC 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.”
Background
[9] Between 1 April 2009 and 20 July 2012, the applicant worked as a day cleaner at two premises in Melbourne, one in Collins Street and the other in Flinders Lane (Flinders House) (the CBD position), from 7.00 a.m. - 3.00 p.m. Monday-Friday, in respect of a contract between the respondent and Hallmarc Asset Management (Hallmarc), which managed the two buildings.
[10] At the commencement of her employment, the respondent provided the applicant with “Cleaning Procedures” for 257 Collins Street (which included reference to Flinders House Duties) over Monday-Friday, between 7.00 a.m. and 3.00 p.m.). 1 The applicant’s normal hours of work were Monday to Friday 7.00 a.m. to 3.00 p.m.2 From time to time the applicant performed additional occasional work for the respondent,3 at various times and locations, including a Sunday work run known as “Mark’s Sunday run”,4 in respect of which the applicant was picked up and driven home each time.5
[11] The respondent operates its business from a factory in Epping.
[12] A meeting between the applicant and Mr A Laurie the Director of the respondent occurred at the Epping factory on 18 July 2012.
[13] At the 18 July 2012 meeting, Mr Laurie handed the applicant two letters, dated 12 and 13 July 2012. The 12 July 2012 letter 6 was described as a first warning regarding unsatisfactory aspects of the applicant’s performance and company policy and raised:
● Swearing in the car park of 257 Collins Street on 3 July 2012;
● Incorrect procedure when phoning in sick; and
● Time sheets having been submitted by SMS and to a person other than Mr Laurie.
[14] The 13 July 2012 letter 7 was described as a second warning regarding unsatisfactory aspects of the applicant’s performance and company policy and raised non-attendance by the applicant at a compulsory meeting of “16 July 2012” (sic).
[15] On 18 July 2012, Mr Laurie, advised the applicant that she was being removed from her duties at the CBD position and was required to commence work the next day on the “van” 8 (a variable collection of jobs at various locations) and was required to attend at the respondent’s factory site in Epping at 6.00 a.m. the next day to commence those duties. The applicant reluctantly agreed but later advised the respondent that she was unable to commence at Epping until 7.30am due to transportation issues and safety concerns.
[16] The applicant then obtained advice and representation from JobWatch. 9
[17] The applicant attended at the Epping factory on 19 and 20 July at 7.30 a.m. and remained at or in the vicinity of the factory until 3pm other than when travelling to jobs as instructed by Mr Laurie on 18 July 2012 she did not undertake any work.
[18] On 20 July 2012, Mr Laurie caused the office staff at the Epping factory to hand the applicant a letter headed “abandonment of employment”. 10 It advised that the applicant failed to call or report to work or to follow instructions on 19 and 20 July 2012 and deemed the applicant’s “current absence” as unauthorised and “this day will be leave without pay”. The letter advised that the respondent’s policy provides that employees who voluntarily fail to report to work for their normal working hours on that rostered shift and fail to contact the appropriate manager will be considered to have voluntarily resigned through abandonment of their position and that it regarded the missing of her normal shifts (on 19 and 20 July 2012) to be a voluntary resignation of employment by the applicant by reason of abandonment of her employment. The letter concluded that if there was some compelling reason that the respondent should not take this action the applicant must provide Mr Laurie with a written explanation for his consideration by 5.00 p.m. on 22 July 2012.
[19] At 3.50 p.m. on 23 July 2012, the applicant delivered a hand written response 11 to Ms J Meakins, a member of the office staff, at the Epping factory. It refuted the proposition that the applicant had abandoned her employment, stating:
“You know full well, that although I complied with your instructions to present myself at 12A Buch Av Epping, you proceeded to give me the run around, ignore my calls, hanging up and eventually withdrawing the sim chip on my work phone.
Further, you denied me shelter during the two days I spent in the car park of the above mentioned premises, as you had instructed the office staff not to let me in.
With no likelihood of the situation changing, you leave me with no choice but to file an unfair dismissal claim.”
[20] The s.394 application was made on 27 July 2012 in respect of a termination of employment at the initiative of the employer said to have occurred on 20 July 2012. The applicant provided as the reason for the termination “Employer incorrectly alleged I abandoned my employment”.
[21] Conciliation occurred on 13 August 2012, leading to an in-principle agreement to settle the matter. On the 23 August 2012, Fair Work Australia was advised that the settlement had collapsed.
[22] On or shortly after 13 August 2012 but certainly before 16 August 2012, 12 the respondent engaged EMA Consulting to represent its interests.13
[23] On 16 August 2012, 14 EMA Consulting wrote to JobWatch, referring to the conciliation conference and the settlement proposed. It advised that on the information available to it, the applicant had not been terminated from her employment and had not been dismissed in accordance with s.386(1) of the Act, even though the respondent’s 20 July 2012 letter stated that the applicant had abandoned her employment. It indicated that the respondent intended to write to the applicant and advise her that she had not been terminated from her employment and would be paid from the date she last worked until 17 August 2012 and from 20 August 2012, she would be stood down on full pay whilst an investigation was undertaken regarding alleged misconduct with respect to the falsification of attendance records, details of which allegations would be forwarded to the applicant. It requested that the applicant’s s.394 application be withdrawn.
[24] On 17 August 2012, the respondent wrote the applicant a letter, 15 headed “unfair termination application”. It referred to the conciliation on 13 August 2012 and advised that, whilst the 20 July 2012 letter indicated that the respondent believed that the applicant had abandoned her employment, a proposition refuted in the applicant’s 23 July 2012 response, following advice, the termination of the applicant’s employment had not occurred. It advised that, on that basis, her wages would be paid from 20 July to 17 August 2012 and from Monday, 20 August 2012 she would be stood down on full pay whilst the respondent undertook an investigation into alleged misconduct with respect to the falsification of attendance records. The letter foreshadowed a further letter by close of business on 20 August 2012 in which the allegations would be outlined and a time and date for a meeting at which the applicant would have an opportunity to respond to the allegations, would be advised.
[25] A further letter 16 dated 17 August 2012 was sent to the applicant by the respondent, confirming the allegation of misconduct through falsification of attendance records, setting out the basis of the allegation, advising of a meeting on 23 August 2012 at which the applicant could respond to the allegations, directing the applicant to bring any relevant matters of information she wished the respondent to consider in relation to the allegations to its attention at the meeting and advising of the applicant’s entitlement to have a support person present at the meeting. The letter advised that if the allegation is substantiated, the outcome of the investigation, subject to the applicant’s responses, would include disciplinary actions up to and including termination of employment. Relevant documentation supporting the allegation - an analysis of the time sheets and swipe card access records, the time sheets and the swipe card records - were attached to the letter.
[26] On 23 August 2012, the respondent sent a further letter 17 to the applicant, referring to the letter of 17 August 2012, noting that the applicant failed to attend the meeting of 23 August 2012, and noting that it constituted a failure to comply with a reasonable and lawful direction. The letter provided a further final opportunity for the applicant to respond to the misconduct allegations contained in the second letter of 17 August 2012. The applicant was directed to respond to the allegations in writing by close of business on 27 August 2102.
[27] On 29 August 2012, the respondent wrote the applicant a letter, 18 headed “Termination of Employment”. It referred to the 17 and 23 August 2012 letters. It noted that the applicant had not responded to the allegations put to her in the second 17 August 2012 letter, indicating that the respondent had decided to determine the matter on the information available to it. It concluded that the falsification of time and attendance records is serious misconduct and advised that, on that basis, the applicant’s employment with the respondent was terminated as at 28 August 2012. It was received by the applicant on 3 September 2012.19
[28] On 23 November 2012 EMA Consulting filed a F53 form with Fair Work Commission advising that it acted for the respondent.
[29] The matter was then allocated for determination of a jurisdictional objection advised by the respondent - that the applicant had not been dismissed at the time of her application (ss.385(a) and 386(a)) - and the application, if it was found that the application was within jurisdiction. By the time of the hearing, the respondent also claimed that it was a Small Business Employer and had followed the Small Business Fair Dismissal Code (s.385(c)).
Submissions
The applicant
[30] The applicant submitted that the respondent had repudiated the employment contract through a combination of factors:
● By unilaterally changing the two fundamental terms of her employment contract the start and finish times, 7.00 a.m. until 3.00 p.m., Monday to Friday and also the location being in the CBD, predominantly at the 257 Collins Street and at Flinders House;
● By repeatedly treating the applicant in bad faith, as evidenced by Mr Laurie’s conduct toward the applicant in the events leading up to the 20 July 2012 letter from him to the applicant; and
● By issuing the 20 July 2012 letter in which it claimed that the applicant had abandoned her employment, the respondent showed that it no longer wished the employment relationship to stay on foot when Mr Laurie mischievously wrote to the applicant on 20 July 2012, falsely accusing her of having abandoned her employment; and
● By not paying the applicant after 20 July 2012, until the payment of a lump sum on 17 August 2012, without any indication to the applicant, following the 23 July 2012 response by the applicant to the 20 July 2012 letter alleging abandonment of employment, that the respondent no longer believed that the applicant had abandoned her employment.
[31] The applicant submitted that the 20 July 2012 letter, in particular, must be taken as a clear intention to repudiate the contract of employment, alleging that the applicant had abandoned her employment in circumstances where this was clearly and factually untrue.
[32] The applicant submitted that whilst Mr Laurie has given evidence, that he had received complaints from Hallmarc about the applicant’s conduct, which the applicant disputed in her evidence, the respondent did not call witnesses from Hallmarc, asked for or tendered any kind of written documentation or written evidence from Hallmarc. The applicant submitted that on the basis of Jones v Dunkel and Another, 20 a negative inference ought to be drawn that such evidence would not have supported the respondent’s case.
[33] The applicant submitted that the terms of the 17 August 2012 letter from the respondent to her, in which the respondent indicated that the applicant remained employed, supported the conclusion that the respondent believed and intended that the applicant’s employment had been terminated, by the respondent’s acceptance of the alleged abandonment of employment, from 20 July 2012 up until advice was received to the contrary, presumably from EMA Consulting, prior to the 17 August 2012 letter. The applicant submitted that the fact that the applicant had not received wages or any correspondence or advice from the respondent from 20 July to 17 August 2012, supported a finding that the respondent believed that there had been a termination of employment at 20 July 2012.
[34] The applicant submitted that the decision by the respondent to resume paying wages on 17 August 2012 was not done in the genuine belief that the employment remained on foot but as a mischievous and calculated move, directed to avoiding an adverse finding on its jurisdictional objection.
[35] The applicant submitted that she was dismissed, at the initiative of the employer, on 20 July 2012.
[36] The applicant submitted that there was no valid reason for the termination and no application of the procedural requirements inherent within s.387 of the Act. The applicant submitted that reinstatement was not appropriate given the effect of the respondent’s behaviour and the trust required to re-establishing the employment relationship. The applicant sought compensation at the maximum level available under the Act of 26 weeks remuneration, discounted by the five weeks pay received plus the three weeks that she has managed to earn through alternative employment, leaving a total of 18 weeks. 21
[37] The applicant submitted that in respect of the 20 July 2012 termination, the respondent brought no evidence that it even thought about that Small Business Fair Dismissal Code, let alone strictly adhering to it, and therefore the issue of whether the respondent was a small business or not is not important.
[38] As to the allegation of falsification of attendance records, the applicant submitted that the respondent only started asking questions and looking into this whole issue, “snooping around” to see if he could “find some dirt” on the applicant, well after the unfair dismissal conciliation had happened and certainly after he had received her letter of 23 July 2012 in which she had said, “you leave me with no option but to file an unfair dismissal claim”. The applicant denied any misconduct and submitted that the evidence on which the respondent relied is unreliable and misleading and cannot be relied on to support a finding of misconduct. The applicant submitted that her evidence was that the swipe-in and swipe-out data is not the same as a clocking-in, clocking-off proof, so that it is not conclusive evidence of start and finish times for each day worked.
The respondent
[39] The respondent submitted that to enliven the provisions in the Act in regard to unfair dismissal, the applicant needs to be able to demonstrate that there has been a termination at the initiative of the employer. The respondent must have done something that has brought about the termination of the applicant’s employment. The respondent submitted that in his evidence he said on numerous occasions that he did not intend to terminate the applicant’s employment on either 20 or 23 July 2012. The respondent submitted that if Mr Laurie had have intended to terminate the applicant’s employment on either 20 or 23 July 2012, “he would have got the entrance and the exit records from 257 Collins Street and used them because again, whether we like it or not, that is what he has done with other people and in particular situations.” 22
[40] The respondent further submitted that it did not terminate the employment through any actions or inactions on 23 July 2012. The respondent relied on a passage from the decision of Vice President Watson in Nazar Lazar v Inghams Enterprises Pty Ltd: 23
“The relevant law arising from those decisions is that an abandonment of employment does not in itself terminate the contract of employment or the employment relationship, that when an abandonment of employment occurs, the employer has an option of accepting a repudiation and bringing the employment relationship to an end or considering the reasons for the absence and allowing the employment relationship to remain on foot.”
[41] Relying on that passage, the respondent submitted that the respondent never took the additional step of accepting the repudiation of the contract of employment. The respondent submitted that the intent and the purpose of the 20 July 2012 correspondence was not to bring the employment to an end. 24
[42] The respondent, relying on the authoritative of Mohazab v Dick Smith Electronics Pty Ltd (Mohazab) 25and O’Meara v Stanley Works Pty Ltd (O’Meara)26, submitted that it did not, based on the letter of 20 July 2012 intend to bring about the termination of the applicant’s employment. It put a proposition to the applicant, inviting a response, and did not terminate the applicant’s employment. The respondent did not take steps having regard to the proposition advanced in the 20 July 2012 letter and the applicant’s response of 23 July 2012, to terminate the employment. Nor was there any action by the respondent which forced the applicant to resign her employment. Accordingly, the respondent submitted, neither ss.386(1)(a) or (b) of the Act are enlivened and there was no termination at the initiative of the employer at the time. It submitted that the application, relating to a termination on 20 July 2012, is without jurisdiction and should be dismissed.
[43] The respondent further submitted that the 28 August 2012 termination cannot enliven s.386 of the Act prospectively.
[44] The respondent submitted that in any case there was a valid reason for the termination of the applicant’s employment - serious misconduct by the applicant in that she had defrauded the respondent by claiming additional hours purported to have been worked, where, in fact, she had not worked the hours. It submitted that the applicant was provided with two letters notifying the applicant of the allegations against her and providing an opportunity for her to respond, in a meeting or in writing. She did not respond to the allegations.
[45] The respondent submitted that even if it were found that a termination at the initiative of the employer occurred on 20 July 2012, having regard to how long the applicant would have continued to be employed, her employment was terminated on 28 August 2012, so that the relevant period is between 20 July 2012 and 28 August 2012. It submitted that on 17 August 2012, the respondent paid the applicant some 216 hours in wages, an amount of about $5,040.00, or six weeks wages, taking her up to the end of August 2012. The respondent submitted on that basis that if there was to be any compensation determined the best case scenario; from the applicant’s point of view is of compensation of 1-2 weeks wages.
Consideration
[46] As noted above, the issues for determination are whether the applicant has been unfairly dismissed, within the meaning of s.385 of the Act and, if so, what remedy, if any, should be applied. In terms of the four matters, with which the Commission must be satisfied under s.385 of the Act, in order to find that a person has been unfairly dismissed, there is no suggestion that the dismissal was a case of genuine redundancy. I am satisfied that the dismissal was not a case of genuine redundancy.
[47] The remaining three matters within s.385 of the Act are in issue:
“(a) the person has been dismissed;
(b) the dismissal was harsh, unjust or unreasonable;
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code.”
Was the applicant “dismissed” for the purposes of the 27 July 2012 application?
[48] The definition of “dismissed” is contained in s.386 of the Act in the following terms:
(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.”
[49] Section 386(2) of the Act then deals with a series of exclusions from “dismissed” and demotion, none of which relevantly applies in the current circumstances.
[50] There is no evidence of any written or verbal communication from the respondent to the applicant which constitutes an express termination. However, the applicant argues that the respondent’s conduct amounted to dismissal. There is considerable law on whether a resignation is forced by conduct of the employer or that the employer’s conduct amounts to a constructive dismissal either at common law or within the statutory definitions. “This law is helpful in the present context because it articulates the nature of employer conduct which will bring an employment contract to an end.” 27
[51] In O’Meara 28 a Full Bench of the Australian Industrial Relations Commission, having considered the relevant case law and legal principles in Mohazab,29 Rheinberger v Huxley Marketing Pty Limited (Rheinberger),30 Pawel v Advanced Precast Pty Ltd (Pawel)31 and ABB Engineering Construction Pty Ltd v Doumit (ABB Engineering)32 concluded:
“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 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.” 33
[52] The test in O’Meara is that there 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. A Full Bench in Searle v Moly Mines Limited (Searle) 34 noted, in respect of the application of the test that:
“Where questions of jurisdiction are involved it is the facts which are relevant, not the parties’ subjective beliefs or the reasonableness of their conduct.”
[53] The test for an employer repudiating the contract such as to render termination to be on the employer’s initiative was expressed in Marwa Elgammal v BlackRange Wealth Management Pty Ltd ACN 092 38-0 348 T/A Commonwealth Financial Planning 35 (Elgammal) as follows:
“. . . when considering whether an employer has repudiated the contract the test is not the employer’s actual intention, judged subjectively, but whether the conduct of the employer, judged objectively by reference to the effect on a reasonable person evinced an intention to no longer be bound by the contract.”
[54] The questions for immediate determination are whether the conduct of the respondent leading up to the 27 July 2012 application either intended to bring the employment to an end or had the probable result of bringing the employment relationship to an end and whether the conduct of the employer, judged objectively by reference to the effect on a reasonable person, evinced an intention to no longer be bound by the contract.
Adjournment application
[55] At the commencement of the hearing the respondent sought an adjournment, in light of the filing, at 5.00 p.m. on the evening preceding the hearing, of a second witness statement by the applicant, 36 responding to the evidence of the respondent in his witness statement37 on the basis that the respondent had insufficient opportunity to review and consider what was put in the material, determine its impact and responsive action (for example, the possibility of bringing evidence from an employee of Hallmarc). The application for adjournment was refused:
“I’m not persuaded to adjourn the proceedings. The matters raised in the additional witness statement are, in my view, responsive, which - and matters which are the normal course that have been raised by way of viva voce evidence today. If there is - if following examination - the evidence-in-chief, you feel a need for a short adjournment to seek instructions in relation to particular matters, Mr Eberhard, I’ll entertain that application at the time.” 38
[56] At the conclusion of examination-in-chief of the applicant, the respondent’s representative was asked if there were any matters arising out of the (second) statement or the evidence on which he needed to get instructions. A five minute adjournment was sought and granted. 39
[57] No other application for adjournment was made.
Evidence relevant to the alleged termination on 20 July 2012
[58] The only evidence brought in relation to the events leading to the 27 July 2012 application was that of the applicant in two statements, 40 in oral evidence and that of Mr Laurie in a statement.41 Two other employees of the respondent - Ms K Good (CCS Administration Officer) and Ms J Meakins (ACCS Office Manager) and employees of Hallmarc (Ms A Cini and Ms J Harris)42 had some limited involvement in those events but did not give evidence.
[59] The evidence of the applicant and Mr Laurie was directly contradictory in respect of many of the events leading to the current application. I found the applicant to be calm, concise and responsive in giving her evidence and that her evidence was consistent. In contrast, I found Mr Laurie to be non-responsive, 43 aggressive (interrupting questioning)44 and argumentative45 (with his evidence, at times, being directed to asserting propositions, rather than providing relevant facts) and his evidence to be, at times, inconsistent. 46 Having regard to the demeanour of the witnesses and the content of their evidence, I prefer the evidence of the applicant when that evidence is in conflict.
[60] It is now necessary to consider the evidence in relation to whether the conduct of the respondent leading up to the 27 July 2012 application either intended to bring the employment to an end or had the probable result of bringing the employment relationship to an end and whether the conduct of the employer, judged objectively by reference to the effect on a reasonable person, evinced an intention to no longer be bound by the contract.
Hallmarc and the meeting of 18 July 2012
[61] A matter within the events leading to the application in respect of the termination on 20 July 2012, was the request said by the respondent to have been made by Hallmarc to remove the applicant from its CBD buildings in July 2012, following a request said by the respondent to have been made to it that it address unsatisfactory aspects of her behaviour in March 2012. This request led Mr Laurie, according to his evidence, 47 to move the applicant to the vans.
[62] Mr Laurie’s evidence is that in March 2012, Hallmarc contacted him to discuss its concerns with the applicant’s behaviour - in particular how she could be very loud and her discussions and her attitude - and was asked to speak to the applicant to quieten her down. 48 His evidence is that he spoke to the applicant at the Cafe at 257 Collins Street49 on 15 March 2012.
[63] The applicant’s evidence is that “the only time I could remember being spoken to about by (sic) behaviour would have been 2010, and that’s the only time I’ve ever been spoken to my behaviour by Hallmarc.” 50
[64] A meeting of 18 July 2012 then occurred.
[65] Mr Laurie’s evidence is that he discussed with the applicant, Hallmarc’s concerns about her attitude and loudness, gave her the warning letters dated 12 and 13 July 2012 and informed her that she was moving from the CBD position to the vans and would need to be at the Epping factory at 6.00 a.m. 51 He understood the applicant accepted that position.52
[66] The applicant’s evidence is that she attended a meeting with Mr Laurie at Epping at 12.38 p.m. and apologised for being eight minutes late. Mr Laurie said “shut the f.... up and don’t speak until I am ready” he said “this is your punishment for f...ing with me”. He raised the Red Card issue. 53 He said “you thought you were really smart, how smart are you now?” He said the applicant would now be working on the vans going to different sites on different days and she would work the hours he decided. The applicant’s evidence was that Mr Laurie said that she had “pissed him off” and now that she was going to be punished, and that she would be taken away from “her good cushy job and be put on the vans and do crappy jobs” and “be lucky to make 40 hours a week”.54
[67] The applicant’s evidence is that she had no recollection of Mr Laurie speaking to her on 15 March 2012 about any Hallmarc concerns. 55 Mr Laurie’s evidence is that on 12 July 2012, he met with representatives of Hallmarc, who expressed concerns with the applicant’s attitude and requested that he remove her from the Collins/Flinders buildings.56 The applicant’s evidence is that she had no recollection of Mr Laurie speaking to her about a Hallmarc request that she be removed from the Collins/Flinders buildings.57
[68] The applicant gave evidence that she said Mr Laurie would need to give her 38 hours to which he responded: “I’ll do whatever I want”. Mr Laurie said the applicant would need to start at 5.00 a.m. at the Epping factory. Mr Laurie handed her two warning letters. 58 She objected to the claims in the letters. Mr Laurie told the applicant her hours and location would be changing with immediate effect. The applicant’s evidence is that “I didn’t really get a word in edgewise at the meeting, but when I went home I realised that transport wouldn’t permit, and also it’s a built up industrial area there and it’s very dark in the morning, and that’s why I rang to ask him if I could start later”.59 She tried to ring Mr Laurie but he was not answering her phone calls, so she advised Ms Meakins that she could not start before 7.30 a.m. Ms Meakins replied that it would be okay for her to start at 6.00 a.m., that Mr Laurie said 6.00 a.m. and “no later than that”.60 The applicant later telephoned61 Mr Laurie and said she could only get to the new location by 7.30 a.m. Mr Laurie said “too bad, I expect you to start at 6am”. The applicant sent Mr Laurie a text saying she could not start until 7.30 a.m. He replied “you’re not following my instructions”.62
[69] The applicant also tendered a letter dated 23 October 2012 63 to her from Ms Cini of Hallmarc, which stated:
“We confirm that as an employee of ACC we were pleased with the work you did at 257 Collins Street whilst you were assigned to the property, and all tasks asked of you were completed in a satisfactory manner.
We unfortunately cannot comment on the status of any rosters and time sheets as we do not have any involvement with this and matters of this nature are between ACC and yourself.”
[70] The letter reflects positively on the applicant’s work but does not specifically address the issues said to have been raised between Hallmarc and the respondent.
[71] The account of events within the evidence of Mr Laurie and the applicant are in marked conflict. They reflected very different accounts of the conversation of 18 July 2012 and the relevance of the direction from Hallmarc (if made) to remove the applicant from its buildings to the decision of Mr Laurie to move the applicant from the CBD buildings to the vans.
[72] I prefer the account of the 18 July 1012 meeting given in the evidence of the applicant for several reasons.
[73] First, for the reasons stated above, I find the evidence of the applicant to be more credible that that of Mr Laurie.
[74] Secondly, it is conceded by the respondent that since the respondent’s office is an open plan office so that other people (Ms Good and Ms Meakins), whilst not directly participating, may have heard at least part of the discussions between Mr Laurie and the applicant 64 and would have been able to shed light on the course of the conversation. The failure to bring such witnesses was explained by the respondent on the basis that it believed such evidence would not have assisted the Commission in coming to a full understanding of what happened on 20 and 23 July 2012 or 28 August 2012.65
[75] It is not a plausible explanation, in light of the concession that Ms Good and Ms Meakins may have been able to shed light on at least part of that conversation. I am persuaded that the circumstances support an inference that the uncalled evidence would not have assisted the respondent’s case. 66
[76] The evidence of the applicant is that the request from Hallmarc that she be removed from its buildings was not raised in the meeting of 18 July 2012. The only reference to Hallmarc is found in the 12 July 2012 warning letter 67 which records as an unsatisfactory aspect of the applicant’s performance “Swearing in the Car Park at 257 Collins Street on 3/7/12”.
[77] Such an issue does not support the proposition that Hallmarc requested that Mr Laurie remove the applicant from the Collins/Flinders buildings. Otherwise, the only direct evidence is that of Mr Laurie, which was tangentially challenged by the evidence of the applicant that she had no recollection of Mr Laurie speaking to her on 15 March 2012 about any Hallmarc concerns 68 or speaking to her about a Hallmarc request that she be removed from the CBD buildings.69 The respondent’s evidence could have been readily supported by evidence - oral or documentary - from a relevant Hallmarc employee.
[78] However, whether or not a request was made by Hallmarc to Mr Laurie to remove the applicant from the Collins/Flinders buildings, I find on the evidence that such a request and its role in the respondent’s decision to move the applicant to the vans was not raised in the meeting of 18 July 2012. I also find that the respondent’s decision to move the applicant from the Collins/Flinders buildings to the vans constituted a fundamental change to the terms of the applicant’s employment contract - in respect of the location of the work and the hours of work - which was clearly not accepted by the applicant given her reasoned challenge to that element of the decision on the evening of 18 July 2012 and sustained during the remainder of her employment.
19 July 2012
[79] The applicant’s evidence is that she arrived at Epping at 7.30am. 70 She tried to contact Mr Laurie on his mobile at 7.49 a.m., 9.04 a.m., 9.20 a.m., 9.24 a.m., 9.27 a.m. and 10.52 a.m. to ask for work instructions and called the office at 7.56, 9.29. 11.12 am, 12.03pm and 2.46pm on the factory number to ask what work I had to do.71 Mr Laurie hung up on a few occasions when the applicant was able to contact him.72 Mr Laurie arrived at 9.15am. He said if the applicant could not arrive until 7.30 a.m., she would need to get to all jobs by public transport. He told the applicant to go to a job in Moonee Ponds. The applicant contacted a ACCS cleaner at Moonee Ponds to get directions.73 The cleaner said that the job would be completed by the time she got there.74 The applicant telephoned Mr Laurie and he told her to go to a job at Williamstown. The applicant contacted an ACCS cleaner at Williamstown who said that the job was completed three hours earlier. The applicant telephoned Mr Laurie, whilst on the street on her way to Williamstown and told him this. He said “Stay where you are and I will meet you at the factory”.75 When the applicant told Mr Laurie that the Moonee Ponds and Williamstown jobs were done, he did not mention additional work.76
[80] At no stage did Mr Laurie insist the applicant go to the jobs after she told him the jobs were complete. 77 The applicant called Mr Laurie to clarify if she should stay where she was or return to the factory. He hung up. The applicant then called the office and Ms Meakins texted the applicant saying to call Mr Laurie for further instructions. The applicant returned to the car park and waited from 11.15 a.m. to 3.15 p.m. The applicant only left the car park to head to the jobs as directed, until advised that they had been completed.78 The applicant asked Ms Meakins what she should do and was told to keep calling Mr Laurie.79 In the evening, the applicant texted Mr Laurie, asking for the next day’s jobs. She then texted saying “given you haven’t responded I assume I will report for work at 7.30”. Mr Laurie responded “your start time is 6am, not your imaginary 7.30am”.80
[81] The applicant was not allowed inside the factory building, being required to remain in the car park when on site. This was on the instruction of Mr Laurie. 81 The respondent’s evidence is that this direction was made because hazardous chemicals were on site and the applicant did not have a Red Card “and occupational health and safety” was an issue.82 I find this implausible given Mr Laurie’s evidence that the Red Card was required for building site clean work83 and access was provided to the applicant inside the factory for the meeting with Mr Laurie the previous day.
[82] Mr Laurie’s evidence is that the applicant left him a message at 7.10 a.m. and 7.45 a.m. and also rang his mobile and the Epping factory office. He directed her to stay at the factory. Mr Laurie arrived at 9am and directed the applicant to go to a Moonee Ponds job. She contacted a Moonee Ponds cleaner who told her the job was finished. The applicant then rang Mr Laurie and said “stop sending me on a wild goose chase because the job is finished.” He tried to explain that it was not finished because he had scheduled additional works but the applicant did not want to listen. He then directed her to a Williamstown job. She rang a Williamstown cleaner who told her the job was finished (not knowing extra work had been scheduled). Mr Laurie told the applicant to wait at the factory, returning at 9.45 a.m. but the applicant was not there. He left at 10.15 a.m. When the applicant realised that there was extra work at each site, she admitted she maybe “should have done as he told her”. 84
[83] Mr Laurie gave evidence that he made repeated and sustained attempts to convince the applicant to go to both the Moonee Ponds and Williamstown jobs on the basis that additional work was required. 85 Ultimately, he accepted that the conversation in respect of Moonee Ponds was short86 and of the following nature:
“[S]he would have rung me, yelled and sweared (sic) at me and said, ‘The job at QPA is finished. Where do you want me to go now?’ I said, ‘Go to Williamstown.’ There you go.” 87
[84] Mr Laurie’s evidence is that he spoke to the applicant on at least six occasions and gave lawful directions which she failed to meet and had she done so, she would have had meaningful work. 88
[85] Given the ultimate evidence of Mr Laurie as to the nature of the conversations with the applicant when she questioned the utility of attending the Moonee Ponds and Williamstown sites, there is limited conflict between the evidence of the applicant and Mr Laurie as to the events of 19 July 2012.
[86] On that evidence I find, that the applicant attended for work as directed, save that she attended at 7.30 a.m., the time indicated by her on the previous evening. Once there, she made or attempted frequent contact with Mr Laurie or the office to obtain direction as to work. She was directed to attend at two sites but contacted Mr Laurie to question the utility of doing so in light of the advice as to the completion of the work by ACCS employees at each location. She proceeded to give effect to Mr Laurie’s direction in each case until advised that the relevant work had been completed or would be completed by the time she arrived and immediately sought alternate instructions from Mr Laurie and the office when so advised. During her return journey to the factory following her aborted trip to the Williamstown job, and after arriving at the factory at 11.15am, the applicant attempted on several occasions to contact Mr Laurie and the office for further instructions, remaining in the car park until 3.15 p.m. Mr Laurie hung up on the applicant during some of the telephone conversations she initiated during the day.
[87] I find that the applicant made reasonable attempts to comply with reasonable directions by Mr Laurie as to work during the day and remained available to undertake meaningful work if provided. I find that the applicant was reasonably entitled to conclude that Mr Laurie was not making serious attempts to provide her with meaningful work and was, through his direction that she remains in the car park treating her unreasonably.
20 July 2012
[88] The applicant’s evidence is that she arrived at work at 7.30 a.m. and tried to contact Mr Laurie by telephone. He did not answer until 8.00 a.m. At 9.00 a.m., the applicant was let into the car park. 89 The applicant was not directed to undertake any work.90 At 10.00 a.m., Ms Meakins asked the applicant to write down all her personal possessions. At 10.30 a.m. Ms Good and Ms Meakins handed the applicant the “abandonment of employment” letter of 20 July 2012.91
[89] This evidence, which was not contested, supports a finding that Mr Laurie had concluded that the applicant had abandoned her employment and made no attempt to provide any work to the applicant on the day.
23 July 2102
[90] On 23 July 2012, the applicant attended Epping at 3.50 p.m. and handed Ms Meakins her handwritten response to the 20 July 2012 letter. 92 The applicant did not attend at the Epping factory again. She waited for further contact by the respondent.93 She was not prepared to sit in a car park for another week not doing any work.94 The applicant lodged her unfair termination application on 27 July 2012.
Was the applicant dismissed for the purposes of the 27 July 2012 application: Conclusion
[91] The submissions of the respondent focussed on the intention of Mr Laurie over the second half of July 2012 and the proposition that he had not intended to terminate the applicant’s employment on either 20 or 23 July 2012.
[92] The test in O’Meara is to be applied, as noted by the Full Bench in Searle, as follows:
“Where questions of jurisdiction are involved it is the facts which are relevant, not the parties’ subjective beliefs, or the reasonableness of their conduct.” 95
[93] That approach is consistent with the test for an employer repudiating the contract such as to render termination to be on the employer’s initiative as expressed in Elgammal above. Similarly, a Full Bench in Allied Express Transport Pty Ltd v Maria-Anna Owens 96 applying the authority of the High Court of Australia in Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd97 expressed the relevant question as follows:
“Was the conduct of the Company such it would convey to a reasonable person, in the situation of Ms Owens (the applicant), repudiation or disavowal either of the contract as a whole or of a fundamental obligation under it?” 98
[94] When viewing the evidence in its entirety, I am satisfied that the conduct of the respondent had the probable result of bringing the employment relationship to an end and, judged objectively by reference to the effect on a reasonable person, evinced an intention to no longer be bound by the contract.
[95] This conclusion arises from the actions of the respondent, through Mr Laurie:
● To unilaterally alter fundamental terms of the applicant’s employment contract on 18 July 2012, by altering the location and working hours of the substantive work of the applicant which applied continuously over her three years of employment with the respondent, with immediate effect. Whilst the applicant co-operated to accommodate the changed location, it is clear that she actively contested the earlier starting time;
● The basis of the change communicated to the applicant on 18 July 2012, having regard to my findings as to the meeting on that date;
● The basis of work allocation on 19 July 2012 which, together with the general approach taken to the applicant’s attempts to obtain instructions in relation to work, when viewed objectively, would lead a reasonable person to conclude that the respondent no longer wished the applicant’s employment to continue, and the failure to respond at all to the applicant’s attempts to obtain instructions in relation to work on 20 July 2012;
● The respondent’s 20 July 2012 letter to the applicant, alleging abandonment of employment, which relied without any proper basis on the proposition that the applicant was absent from work, failed to call or report for work or follow instructions on 19 and 20 July 2012, and its failure to respond to the applicant’s 23 July 2012 letter refuting the abandonment proposition; and
● The failure by the respondent to pay wages to the applicant beyond 19 July 2012, the rectification of which was not communicated to the applicant until 17 August 2012.
[96] Accordingly, I find that the employment of the applicant was terminated at the initiative of the employer on 20 July 2012. The applicant’s 27 July 2012 application is within jurisdiction.
Does the Small Business Fair Dismissal Code apply in the circumstances of this matter and, if so, was the dismissal consistent with it?
[97] Under s.388(2) of the Act, a person’s dismissal was consistent with the Small Business Fair Dismissal Code if:
“(a) immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person’s employer was a small business employer; and
(b) the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal.”
[98] The Small Business Fair Dismissal Code applies to small business employers with fewer than 15 employees (calculated on a simple headcount of all employees including casual employees who are employed on a regular and systematic basis). 99
[99] In the circumstances of the current matter, the evidence 100 establishes that the respondent employed 14 employees, excluding Mr Laurie, at the time of the termination of the applicant’s employment. Whether or not it employed 14 employees, in which case the Small Business Fair Dismissal Code would apply, or 15, in which case it would not, depends on whether Mr Laurie was an employee.
[100] The evidence as to whether Mr Laurie was an employee was limited to the fact that he drew a wage from the respondent and was covered by WorkCover, 101 which support a conclusion that he was an employee.
[101] However, it is not necessary to determine that issue because it is not suggested that the respondent complied with the Small Business Fair Dismissal Code in relation to the dismissal on 20 July 2012. All the evidence, which is considered below in relation to whether the termination was harsh, unjust or unreasonable, suggests that such compliance did not occur. In respect of the 20 July 2012 termination the respondent did not give the applicant a valid reason based on her conduct or capacity to do the job why she was at risk of being dismissed.
[102] Accordingly, I find that the dismissal was not consistent with the Small Business Fair Dismissal Code.
Was the dismissal was harsh, unjust or unreasonable?
[103] Section 387 of the Act sets out criteria which the Commission must consider in satisfying itself if a termination was harsh, unjust or unreasonable as follows:
“ In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWC 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 FWC considers relevant.”
[104] In respect of the 20 July 2012 termination, no valid reason existed at the time of the the applicant’s dismissal which related to her capacity or conduct identified by the respondent or is supported by the evidence.
[105] However, the respondent contended that it later discovered evidence of falsification of time records by the applicant which provide a valid reason for the termination of her employment. In this respect, the respondent contended that the applicant had falsified her time sheets, upon which payment was calculated, claiming payment for time not actually worked. In late July/early August 2012, the respondent decided to commence an investigation into the applicant’s time sheets, comparing them with swipe card records in respect of 257 Collins Street obtained from Hallmarc. 102 The investigation revealed a discrepancy of 92 hours and 8 minutes103 (of hours recorded on the time sheets in excess of the first and last swipe records on the corresponding days) for the three month period from 1 February 2012 to 30 May 2012.
[106] The respondent’s conclusion that the applicant had falsified time sheets rested wholly on the proposition that the first and last swipe card records each day accurately and recorded the actual times at which the applicant commenced and ceased work. The document setting out the Hallmarc swipe card records are described in the respondent’s materials as “Entrance and exit Records” 104 and Mr Laurie’s evidence refers to them as an “access and egress” report.105
[107] The applicant contested the proposition that the swipe card records reflected entry to and exit from the building but did not accurately reflect start and finish times 106 on several bases:
● She generally undertook duties, such as checking the state of the toilets at various locations within the building before attending at the cleaners room in the basement at the commencement of a working day and after leaving the cleaner’s room at the end of a working day; 107
● The cleaner’s room and other areas of the building were accessible by means other than using the swipe card; 108
● Entry to the building prior to 7.00 a.m. and exit after 3.00 p.m. was possible without recourse to swipe card access; 109
● On occasion, the applicant completed or commenced her working day at the Flinders Lane building 110 (which does not have a swipe card system).111
[108] In his evidence, Mr Laurie, disputed the evidence of the applicant on several bases:
● Whilst not disputing that movement within the building was possible without swipe card access, questioning the practicability of utilising such alternative means of movement or whether it was actually utilised by the applicant; 112 and
● Questioning the accuracy of the applicant’s evidence and providing alternate evidence as to access to the building. 113
[109] I prefer the evidence of the applicant in relation to the access issues.
[110] In relation to the evidence as to how the applicant actually undertook her duties on a day to day basis and accessed areas of the building, the applicant’s evidence was based on her day to day experience working in the CBD buildings for over three years and her direct knowledge of how she undertook those duties and traversed within the buildings, is to be preferred to Mr Laurie’s evidence, as the Director of the respondent without direct involvement in the day to day undertaking of the work in the CBD buildings. In relation to the dispute as to whether access to the building was available without use of a swipe card before 7.00 a.m., I again prefer the evidence of the applicant who attended the building at that time Monday to Friday for over three years.
[111] On the basis of the evidence, I accept that the swipe card records are not an accurate record of the applicant’s actual start and finish times and do not provide a reliable basis for concluding that the applicant falsified her time sheets.
[112] I am not satisfied that there is a valid reason for the termination of the applicant’s employment on the basis of the respondent’s comparison of the applicant’s time sheets and the swipe card records in relation to the applicant.
[113] Given the evidence of Mr Laurie that he obtains and uses discrepancies in time sheets and swipe card records to terminate the employment of employees working in the city buildings, if there is some other reason to get rid of them, 114 the investigation of the applicant’s swipe card records in late July/early August 2012 and the conclusions drawn, has the hallmarks of a contrivance rather than a well-founded basis for the termination of the applicant’s employment, given the evidence that the swipe cards, do not accurately reflect start and finish times.
[114] I find that there was no valid reason for the termination.
[115] It follows that the applicant was not notified of a valid reason or given an opportunity to respond to any reason related to her capacity or conduct.
[116] There were no discussions relating to the dismissal as such.
[117] The dismissal did not relate to unsatisfactory performance by the applicant.
[118] The size of the respondent and the absence of dedicated human resource management specialists or expertise within the respondent materially affected the procedures followed in effecting the dismissal.
[119] I do not consider that any other relevant matters arise for consideration.
[120] These findings, considered together and balanced, compel a conclusion that the termination was harsh, unjust and unreasonable. The effect on the processes applied for the size of the respondent and the absence of dedicated human resource management specialists or expertise do not outweigh the absence of a valid reason for the termination and the absence of any reasonable process in affecting the termination.
[121] I find that the termination was harsh, unjust and unreasonable.
Was the applicant unfairly dismissed?
[122] I have found that the applicant has been dismissed, the dismissal was harsh, unjust or unreasonable, the dismissal was not consistent with the Small Business Fair Dismissal Code and the dismissal was not a case of genuine redundancy. It follows that I am satisfied that the applicant was unfairly dismissed within the meaning of s.385 of the Act.
Remedy
[123] I am satisfied that the applicant was protected from unfair dismissal at the time of being dismissed and that the applicant was unfairly dismissed 115 and that the applicant has made an application under s.394 of the Act.116 Accordingly, I may order the reinstatement of, or the payment of compensation, to the applicant.
[124] Section 390(3) of the Act provides that the Commission must not order the payment of compensation to the person unless:
“(a) FWC is satisfied that reinstatement of the person is inappropriate; and
(b) FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.”
[125] Section 391 of the Act deals with the remedy of reinstatement.
[126] Section 392 of the Act deals with the remedy of compensation, providing:
“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), 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 FWC considers relevant.”
Misconduct reduces amount
(3) If FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, 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 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 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.”
[127] Section 393 of the Act authorises monetary orders to be in instalments.
Reinstatement
[128] The applicant does not seek reinstatement, unsurprisingly in light of the events leading to the termination of her employment. The evidence of Mr Laurie suggests that the respondent has lost faith in the applicant as an employee. In those circumstances, I find that reinstatement to be inappropriate.
Compensation
[129] No submissions were made by the respondent in relation to the effect of an order for compensation, at the level sought by the applicant or at any other level, on the viability of the respondent’s enterprise. There is no basis for finding that an order for compensation would threaten the viability of the respondent’s enterprise.
[130] The applicant worked for the respondent as a day cleaner in the CBD position between 1 April 2009 and 18 July 2012, a period in excess of three years. The sudden unfair termination of her employment after this length of service warrants compensation.
[131] Section 392(2)(c) of the Act requires consideration of the remuneration that the applicant would have received, or would have been likely to receive, if she had not been dismissed.
[132] The evidence in respect of the applicant’s pay from her employment with the respondent is that she received around $702.50 per week after tax. 117 It was asserted from the bar table that the weekly gross pay was $840 per week or $43,800 per annum.118 This assertion was not contested by the respondent and is consistent with the evidence as to net pay. I accept that the applicant earned $840 per week base pay in her employment with the respondent.
[133] The reference to base pay is to the pay due in respect of the applicant’s substantive work in the CBD position. The evidence is that she earned additional irregular amounts for performing work beyond that associated with the CBD position, but there is no evidence as to the extent of such earnings. In the absence of such evidence, I will proceed on the basis that the applicant would have earned $840 gross per week had her employment with the respondent continued.
[134] The applicant was paid a gross amount of $5,040 119 by the respondent for 216 hours in respect of the period after 20 July 2012. I will take this into account in relation to s.392(2)(g) of the Act - any other matters considered relevant.
[135] In considering what remuneration the applicant would have received, or would have been likely to receive, if she had not been dismissed it is necessary to make some judgement as to the period over which she would have continued in her employment but for the termination. In the absence of any evidence that the contract between the respondent and Hallmarc was likely to cease and any fundamental deficiencies in the applicant’s performance, it is reasonable to find that the applicant would have remained in her employment with the respondent for a period of nine months.
[136] However, the respondent contends that the applicant’s employment would have been terminated by the respondent on the basis of falsification of time and attendance records on 28 August 2012.
[137] As I have already found in considering whether there was a valid reason for the termination of the applicant’s employment above, I am not satisfied that there was a valid reason for termination based on the evidence in relation to the falsification allegation and the consideration of the falsification proposition does not support a finding that the applicant’s employment would have been properly terminated in late August for this reason.
[138] I find that the applicant would have received nine months additional wages from the respondent, at the level of $840 per week if she had not been dismissed on 20 July 2012 - an amount of $ 32,850. Given the uncertainties in respect of the four of the nine months beyond the hearing date, some discount for contingencies is required over that period. I will apply a contingency discount 120 of 30% to the estimated lost earnings over that four month period.121 That constitutes an amount of $4,380, reducing the lost earnings to $28,470.
[139] The applicant has also been deprived of superannuation contributions in respect of the earnings lost as a result of the termination of her employment. It forms an additional part of the applicant’s lost remuneration. 122
[140] I am satisfied that the applicant made efforts to mitigate her loss suffered because of the dismissal. 123 She was able to secure some alternate employment and income, which is considered in the context of ss.392(2)(e) and (f) of the Act immediately below. I have also had regard to a period in which the applicant was not seeking alternative employment due to pre-arranged holidays in the context of s.392(2)(g) of the Act below.
[141] Sections 392(2)(e) and (f) of the Act require consideration of the amount of any remuneration earned or reasonably likely to be so earned by the applicant from employment or other work during the period between the dismissal and the making of the order for compensation and the period between the making of the order and the actual compensation. The applicant’s evidence is that she did some event cleaning and received about three weeks’ pay, 124 receiving a broadly comparable rate of pay - about $19.50 for weekdays and about $22.50 for the weekend,125 compared to about $21.00 an hour from her employment with the respondent.126
[142] Without more precise information, I think it is reasonable to calculate the earnings from alternate employment at the same level as the applicant’s regular earnings with the respondent - $840 per week. Over the three weeks of actual alternate work obtained at the time of the hearing; that constitutes an amount of $2,520. However, given the applicant’s current casual work is with an events company and she had some possibility of additional work in the course of the Australian Open tennis tournament, commencing on 14 January 2013, 127 and at other times, she is likely to receive alternative earnings over the estimated nine month period of continuing employment. I have also had regard, under s.392(2)(g) of the Act to likely alternative earnings after the actual compensation within the estimated nine months of continuing employment but for the termination I estimate that the likely alternate earnings, actual and prospective, of $6,720.
[143] Two other matters arise for consideration under s.392(2)(g) of the Act.
[144] First, the respondent paid a gross amount of $5,040 to the applicant in respect of the period after 20 July 2012. This payment obviously reduced the financial loss to the applicant arising from the termination of her employment over the period immediately following the termination. That amount will be deducted from the level of compensation which would be otherwise ordered.
[145] Second, the applicant made no attempt to find employment in respect of a five week period in which the applicant undertook a pre-booked holiday. No attempts were made to mitigate the applicant’s financial loss in respect of this period. Further, the applicant incurred no financial loss in respect of that period since she would have taken that period as paid leave drawing on her leave accrual for which payment was made to the applicant by the respondent following the termination of employment in August 2012. The applicant suffered no immediate financial detriment from the termination in respect of this period. A further deduction of five weeks wages at $840 a week or $4,200 will be made from the level of compensation which would be otherwise ordered.
[146] I am not satisfied that misconduct of the applicant contributed to the respondent’s decision to dismiss her. There is no evidence of such misconduct which would justify a reduction in the amount otherwise ordered.
[147] I consider that an order for payment of compensation is appropriate in all the circumstances of the case and, having regard to my conclusions as to the matters in s.392 of the Act, that compensation, in lieu of reinstatement, should be at the level of $12,510.
[148] This has been calculated at the loss of earnings or likely earnings, discounted for contingencies, of $28,470, less the deductions of $6,720 (alternate earnings), $5,040 (payment by the respondent in respect of the period immediately following the termination) and $4,200 (the leave period).
[149] I am satisfied that an order for compensation at that amount, is appropriate in all the circumstances of the case. That amount contains no component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the applicant by the manner of her dismissal. That amount is less than the compensation cap of $21,900 arising from s.392(5) of the Act. No submissions were made by the respondent seeking that any monetary order made, be in instalments.
[150] The order arising from this decision will require the respondent to pay compensation to the applicant in lieu of reinstatement of a gross amount of $12,510, plus superannuation applicable to earnings at that level. The compensation ordered will be subject to the deduction of taxation required by law. The order will require the payment to be made by no later than 25 February 2013.
SENIOR DEPUTY PRESIDENT
Appearances:
G. Marchetti for the applicant.
P Eberhard for the respondent.
Hearing details:
2012.
Melbourne:
December 12
1 Exhibit F1, at annexure LF-1.
2 Exhibit ACCS3, at para 11.
3 Transcript, at para 128.
4 Exhibit ACCS3, at para 10.
5 Transcript, at para 266.
6 Exhibit F1, at annexure LF-3.
7 Exhibit F1, at annexure LF-4.
8 The nature of work on the vans is set out in Exhibit ACCS3, at para 24.
9 Exhibit F1, at para 9.
10 Exhibit F1, at annexure LF-5.
11 Exhibit F1, at annexure LF-6.
12 Exhibit ACCS3, at attachment 5.
13 Exhibit ACC 3, at para 45.
14 Exhibit ACC 3, at attachment 5.
15 Exhibit ACCS3, at attachment 9.
16 Exhibit ACCS3, at attachment 9.
17 Exhibit ACCS3, at attachment 10.
18 Exhibit F1, at annexure LF-7.
19 Exhibit F1 at para 18.
20 (1959) 101 CLR 298.
21 Transcript, at para 906.
22 Transcript, at para 975.
23 [2012] FWA 8815, at para 12.
24 Transcript, at para 982.
25 (1995) 62 IR 200.
27 Geoff Barkla v G4S Custodial Services Pty Ltd, [2011] FWAFB 3769, at para 24, per Watson VP, O’Callaghan SDP and Cargill C.
28 PR973462, 11 August 2006, per Giudice J, Watson VP and Cribb C, recorded and applied in Geoff Barkla v G4S Custodial Services Pty Ltd.
29 (1995) 62 IR 200.
30 (1966) 67 IR 154.
31 Print S5904, 12 May 2000, per Polites SDP, Watson SDP and Gay C.
32 Print N6999, 9 December 1996, per Munro J, Duncan DP and Merriman C; quoted with approval in BC Stubbs v Austar Entertainment Pty Ltd, Print Q0008, 17 December 1998 per Ross VP, Munro J and Harrison C and in Mosey v Australian Customs Service (2002) 116 IR 1.
34 [2008] AIRCFB 1088 at para 38.
35 [2011] FWAFB 4038 at para 13, per Harrison SDP, Richards SDP, Williams C.
36 Exhibit F2.
37 Exhibit ACCS3.
38 Transcript, at para 66.
39 Transcript, at paras 254-258.
40 Exhibits F1 and F2.
41 Exhibit ACCS3.
42 Transcript, at para 551.
43 See, for example, Transcript, at para 536 and paras 613-619.
44 See, for example, Transcript, at paras 417 and 533.
45 See, for example, Transcript, at para 632.
46 See, for example, Transcript, at paras 613-619.
47 Exhibit ACCS3, at para 20.
48 Exhibit ACCS3, at para 13.
49 Exhibit ACCS3, at paras 14 and 15.
50 Transcript, at para 110.
51 Exhibit ACCS3, at para 30.
52 Exhibit ACCS3, at para 30.
53 A refusal by the applicant to obtain a Red Card at her own expense - Exhibit F1, at para 4.
54 Transcript, at paras 117-118.
55 Exhibit F2, at para 3.
56 Exhibit ACCS3, at para 17.
57 Exhibit F2, at para 4.
58 Exhibit F1, at para 8.
59 Transcript, at para 136.
60 Transcript, at paras 139-141 and 275.
61 Record of telephone calls in Exhibit ACCS3, at para 27 and attachment 4.
62 Exhibit F1, at para 9.
63 Exhibit F2 at para 5 and annexure LF-8.
64 Transcript, at paras 992-994.
65 Transcript, at para 987 and 990.
66 Jones v Dunkel and Another, (1959) 101 CLR 298 at 321, applied in Tamayo v Alsco Linen Service Pty Ltd, Print P1859, Ackary v MPDG Investments Pty Ltd, PR924226, at paras 55-56.
67 Exhibit F1, at annexure LF-3.
68 Exhibit F2, at para 3.
69 Exhibit F2, at para 4.
70 Exhibit F1, at para 10.
71 Exhibit F2, at para 7.
72 Transcript, at para 144.
73 Transcript, at para 284.
74 Transcript, at para 285.
75 Exhibit F1, at para 11.
76 Exhibit F2, at para 8.
77 Exhibit F2 at para 9.
78 Exhibit F2 at para 10.
79 Exhibit F1, at para 12.
80 Exhibit F1, at para 13.
81 Transcript, at paras 145 and 660.
82 Transcript, at paras 661-664 and 817.
83 Exhibit ACCS3, at para 16.
84 Exhibit ACCS3, at para 36.
85 Transcript, at para 414.
86 Transcript, at paras 652-653.
87 Transcript, at para 656.
88 Exhibit ACCS3, at para 37.
89 Exhibit F1, at para 14.
90 Transcript, at para 152.
91 Exhibit F1, at para 15.
92 Exhibit F1, at para 17 and Exhibit ACCS3, at para 40.
93 Transcript, at para 305.
94 Transcript, at para 307.
95 [2008] AIRCFB 1088 at para 38.
97 (1988-1989) 166 CLR 623.
98 [2011] FWAFB 2929, at para 26.
99 http://www.fairwork.gov.au/termination/small-business-fair-dismissal-code/pages/default.aspx.
100 Transcript, at paras 390-405 and 478-496.
101 Transcript, at paras 511-515.
102 Exhibit ACCS3, at para 50
103 Exhibit ACCS3, at para 50.
104 Exhibit ACCS3, at attachment 7.
105 Exhibit ACCS3, at para 50.
106 Exhibit F2 at para 14.
107 Exhibit F2 at paras 19-24 and Transcript, at para 173.
108 Transcript, at paras 322 and 772.
109 Transcript, at paras 169 and 170.
110 Transcript, at para 175.
111 Transcript, at para 176.
112 Transcript, at paras 422, 434, 756 and 770.
113 Transcript, at paras 422, 434, 439 and 440.
114 Transcript, at paras 410-412, 622, 734-740, and 774.
115 Section 390(1) of the Fair Work Act 2009
116 Section 390(2) of the Fair Work Act 2009
117 Transcript, at para 229.
118 Transcript, at para 906.
119 Transcript, at para 207.
120 Sprigg v Paul’s Licensed Festival Supermarket, Print R0235, at para 39.
121 Enhance Systems Pty Ltd v Cox, PR910779, at para 39.
122 Tabro Meat Pty Ltd v Kevin Heffernan [2011] FWAFB 1080, para 21.
123 Transcript, at para 232.
124 Transcript, at para 202.
125 Transcript, at para 222.
126 Transcript, at para 221.
127 Transcript. at para 220.
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