DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Anju Das
v
Complete Care Physio Health Group T/A Complete Care
(U2018/2795)

Application for an unfair dismissal remedy.

[1] This decision concerns an application for unfair dismissal remedy made by Anju Das against her former employer, Complete Care Physio Therapy Group (Complete Care Physio), for whom she worked as a physiotherapist between 2 September 2016 and 12 March 2018.

[2] Section 396 of the Fair Work Act 2009 (the Act) requires the determination of four initial matters before consideration of the merits of the application. In relation to the elements within s.396, I find that Ms Das’ application was lodged with the Fair Work Commission within the 21 day period for making such applications; that at the time she was dismissed she was a person protected from unfair dismissal; and that questions of whether her dismissal was a genuine redundancy does not arise. However, because of the size of the Respondent’s business the matter of consistency with the Small Business Fair Dismissal Code requires consideration.

[3] Prior to the commencement of proceedings I sought the views of the parties regarding the form which the proceedings should take (s.399) and indicated to them that I considered appropriate for the matter to proceed by way of a determinative conference given that each was unrepresented. Both parties concurred with that approach.

[4] For the reasons set out below, I have found that Ms Das was unfairly dismissed; that reinstatement is not appropriate; that compensation is appropriate and should be ordered.

BACKGROUND

[5] Anju Das commenced employment with Complete Care Physio on 2 September 2016 and worked on a part-time basis with the firm until her dismissal, which was notified to her through a WhatsApp message on 12 March 2018. Until around September 2017 Ms Das had been working three days a week with the business, however in that month her engagement was reduced to 2 days per week. Whilst working for Complete Care Physio, Ms Das also worked in another business.

[6] The nature of Ms Das’ employment was to provide physiotherapy services to patients of the practice, with those services being provided directly to the patient, who would book and attend for a specific time, receive the treatment directly from Ms Das, and then leave the practice, paying on the way out.

[7] Ms Das is a relatively newly qualified physiotherapist and because of that was required to be under the professional supervision of a more experienced physiotherapist, in this case the owner of Complete Care and her employer, Ms Yasmine Arslan. The full nature of the professional supervision is not before me, however it extended to the need to provide feedback in a structured form to Ms Das about her professional development and areas for improvement. Structured feedback was given by Ms Arslan to Ms Das on at least four occasions during the period of her employment, namely 29 November 2016, 24 February 2017, 5 June 2017 and 15 December 2017. The feedback was provided on a “supervision report” template published by the Physiotherapy Board of Australia.

[8] The reason given by Ms Arslan for the dismissal of Ms Das is set out in the termination letter provided to Ms Das some days after the termination was communicated to her. The reasons given included that Ms Das had not met Ms Arslan’s expectations; she had failed to take on board feedback given to her by Ms Arslan and that clients complained about her.

[9] None of these matters are referred to within any of the supervision reports given by Ms Arslan to Ms Das. Ms Arslan’s explanation for this is that she did not want to harm Ms Das professionally, with her being mindful that what she wrote in the supervision report would be seen by the physiotherapy board. 1 Ms Arslan indicated during the hearing that she was conscious that giving Ms Das a negative report which would be seen by APHRA could impinge on My Das’s future employment, which she did not wish to do.

[10] Prior to November 2017 Ms Das had been providing services, as part of her employment with Complete Care Physio, to a nearby medical centre, Hallam Medical Centre. The parties are agreed that this work ceased during November 2017 however, they are not agreed as to the reasons for the change or the reasons given to Ms Das about the change at the time.

[11] Ms Das’ evidence is that she was told by Ms Arslan at the time that two other physiotherapists would be doing work in her place as Hallam Medical Centre had advised that they wanted a male physiotherapist attending because of the ethnic and religious mix of its patients. For her part, Ms Arslan says that she specifically told Ms Das that she would no longer be going to the Hallam Medical Centre because it was not happy with her treatment of clients and especially with the amount of pressure she applied in particular treatments. 2 Ms Arslan’s explanation about the change in Ms Das’ status is that the Hallam Medical Centre’s Practice Manager rang her shortly before the conversation with Ms Das and told her that they were getting a lot of complaints about Ms Das and could she get someone else to attend in her place.3 Ms Arslan says that she discussed these things with Ms Das in a face-to-face discussion on the same day that she received the phone call from the Hallam Medical Centre’s Practice Manager.4 In her oral evidence Ms Das put forward that at no time during her conversations with Ms Arslan in November 2017 did Ms Arslan say to her that the reason for Hallam Medical Centre requesting alternative physiotherapist was due to her performance, nor was it said that “this is a warning”.5 Each denies what the other has to say on the subject of this November conversation. Rather than the subject of her performance being raised in November 2017 in connection with her finishing at the Hallam Medical Centre, Ms Das submits that the first time Ms Arslan raised the notion that performance issues and complaints from patients had been the reason for her ceasing to work at Hallam Medical Centre was in discussions held with Ms Arslan on 7 March 2018 which led to her dismissal.

[12] After the change to Ms Das’ hours and working arrangements she worked only at the Complete Care Physio rooms.

[13] Ms Arslan’s evidence is that about two to three weeks after the change in circumstance of the Hallam Medical Centre, and in the course of a professional development discussion with Ms Das that she probably did not say to her that she was being dismissed, but that she did say things to the effect of “she will look at bringing someone else in”; and that she may “have to look at employing someone else into the practice”. 6 These things apparently were said in the context of the concerns that Ms Arslan had about Ms Das’ performance as well as Ms Arslan’s concerns that Ms Das was not taking steps to attend professional development courses that Ms Arslan thought would be beneficial for her. For her part Ms Das denies that things of this nature were said to her and that, with respect to the attendance of the professional element courses, that her concerns were largely to do with the cost of attending them which she could not afford.

[14] On 9 January 2018 Ms Das disclosed to her employer that she was pregnant and expecting her baby in July. She did this through a text message exchange which had commenced with her querying her working hours during January. In that exchange the two discussed that since there were not many bookings it may be convenient for Ms Arslan to take some annual leave:

“Tuesday, 9 Jan, 12:32 PM

Anju Das: Hi Yasemin.. hope you are doing well. Just want to confirm if I am working this Friday?

Yasemin Arslan: There is only 2 clients booked. Did you want to take Friday off for annual leave also otherwise I can … [message has been cut off]

Anju Das: Hi Yasemin..as I don’t have paid annual leave so taking unpaid leave or working for short hours doesn’t actually work as I am sending [my child] to kinder. Also the clinic has been quiet at the moment, do you want me to take some time off in January so that I can probably stop [my child’s] kinder and don’t have to pay for that. I will get back once [my child] starts his school first week of February. Probably but that time we will get a bit more busier as well. Let me know if that;s okay with you

Regards

Anju

Yasemin Arslan: That’s fine with me

Anju Das: Also Yasemin didn’t get a chance to see you and share a news with you that I am pregnant and expecting my baby in July. So, I might need some time off (maternity leave) from June. Though to let you know prior as you can plan things accordingly.

Thanks.

Wednesday, 10 Jan, 12:24 PM

Yasemin Arslan: Hi Anju maybe it’s better if you commence in February. Just me me know the exact hours etc

Regards

Yasemin”

[15] Ms Das says that her disclosure that she was pregnant and contemplating maternity leave in June led to a change in the way Ms Arslan treated her. In particular, she puts forward that the reasons submitted by Ms Arslan about the concerns over her work performance only emerged after she had disclosed that she was pregnant.

[16] For her part Ms Arslan rejects that she either discriminated against Ms Das because she was pregnant or that she would ever do so and puts forward the proposition that Ms Das was simply failing in her capacity as an employee and had been doing so since at least mid-2017. The Employer Response Form provided by Complete Care Physio puts forward this explanation as to why Ms Das had been dismissed:

“…after long thought and after reciveing significant amounts of complaints from clients and medical centres ( in particular Hallam Medical Centre) I decided to end her employment effective on 8th of March 2018. I have been contemplating on ending her employment since July 2017 based on her non change in her supervision reports, poor client retention, poor feedback from a significant number of clients, poor feedback from Doctors and Medical Centres. I tried to subtly tell her that her performance was not the best and that she needed to improve if she wanted to remain employed however she remained complacent with her responsibilities as a physiotherapist. I made allowances for her to take leave when she wanted, change her starting times and finishing times to fit around her son starting school, but she did not make the same effort and this was affecting the business.” 7

[17] Having disclosed that she was pregnant in early January, Ms Das took time off during January and worked during February. In early March 2018, Ms Das enquired of Ms Arslan by text message whether she would be required to work on Thursday, 8 March 2018 and was told there were insufficient clients, but that she would be required to complete some reports required by Medicare for enhanced primary care (EPC) clients. Late on the evening of Wednesday, 7 March 2018 Ms Arslan told Ms Das by text message that there would be changes within the practice which she needed to discuss:

“Wednesday, 7 March, 5:57 PM

Anju Das: Hi Yasemin. What time I am starting tomorrow

Yasemin Arslan: Hi anju no clients have booked. 4 clients cancelled. We are going through changes within the practice which I need to discuss with you. I you come in tomorrow there is some reports you need to complete for epc clients which haven’t been done but which should have been. You can come in for few hours and complete your reports. These reports are a requirement for all epc clients as dictated by Medicare. Monday is a public holiday. We will have to catch up some time next week or this Friday to discuss. I have been busy all today treating and just finished do haven’t been able to write back earlier. Have a nice evening

Regards

YASEMINE”

[18] In the Complete Care Physio Employer Response Form Ms Arslan puts forward that she made a decision to part ways on or around about Wednesday, 7 March 2018:

“…after long thought and after reciveing (sic) significant amounts of complaints from clients and medical centres ( in particular Hallam Medical Centre) I decided to end her employment effective on 8th of March 2018. I have been contemplating on ending her employment since July 2017 based on her non change in her supervision reports, poor client retention, poor feedback from a significant number of clients, poor feedback from Doctors and Medical Centres… 8

“I made it quite clear to Anju on Wednesday the 7th of March (Wednesday) that I had intentions of ending her employment…” 9

[19] In her oral evidence to the Commission Ms Arslan put forward that she was uncertain about some of the dates that she was putting forward to the Commission. 10

[20] Ms Das attended as requested on Thursday, 8 March 2018 and spent some time writing the EPC reports which she had been asked to attend to. Ms Arslan says that in the time between 10:30 AM and 2:30 PM Ms Das completed eight letters and that there were “50 to go”. 11

[21] Ms Arslan says about these letters that they related to patients at the Hallam Medical Centre, which were required to be completed by Ms Das, and had been outstanding from November 2017. 12 Ms Arslan provided some examples of the incomplete correspondence which she says had been found in the in-tray in Ms Das’ rooms after the dismissal took effect.13 While that information certainly evidences that Ms Das had been dealing with requests from insurers and lawyers about particular clients, the information does not rise to the level of showing that there were 50 incomplete reports or that they all related to patients Ms Das had seen at the Hallam Medical Centre until she stopped working there in November 2017.

[22] Ms Das was not scheduled to work at Complete Care Physio on Friday, 9 March 2018.

[23] Also in the Employer Response Form Ms Das refers to speaking to the Fair Work Ombudsman about the concern she held about this Das:

“On the 9th of March 2018 I called FairWork Ombudsman and did discuss with one of the staff members about the issues I am having with Anju Das and they suggested that I look through the Small Business Fair Dismissal Code which I have done…” 14

…

“…I spoke to FairWork on the 9th of March 2018 in the morning after speaking to FairWork Ombudsman wrote the termination letter. Based on the advice I recived from FairWork Ombudsman I believe I terminated her employment fairly.” 15

[24] The tenor of this written response was consistent with the things said by Ms Arslan in her oral evidence; namely that she had spoken with the Fair Work Ombudsman helpline as well as that the circumstances on 8 March 2018 when Ms Das did not complete the medical reports to her satisfaction had been some sort of final straw in terms of Ms Arslan’s relationship with Ms Das. 16 Monday, 12 March 2018 was the Labour Day Public holiday in Victoria and the clinic was closed. However in the course of the day the two exchanged the following text messages, in which it becomes apparent that Ms Das was dismissed:

“Monday, 12 March, 12:55 PM

Yasemin Arslan: Hi Anju are you free to come in sometime on Wednesday afternoon/evening. I need to discuss ASAP.

Regards

Yasemin

Anju Das: Hi Yasemin.. sorry I am working on Wednesday. I will come on Thursday instead. Thanks

Anju

Yasemin Arslan: I need to speak to you before Thursday. You are required to attend for a meeting with me prior to Thursday. It will only take up to 30 minutes. It is to discuss your employment with us. I have decided not to continue to be your supervisor due to your performance at the practice. I have also discussed this with aphra and they have indicated that I have the right to cease being your supervisor. Also based on your performance the company would like to cease your employment. I think it would be best if we would meet up before Thursday.

Regards

Yasemin”

[25] After further messaging between the two over the next couple days, they agreed to meet on Wednesday, 14 March 2018 and in the course of the meeting Ms Arslan provided a termination letter to Ms Das. The correspondence included the notification to her that she was dismissed with the effective date of dismissal being from 9 March 2018, however the letter is ultimately signed and dated 14 April 2018 (with me accepting that it was actually signed on 14 March 2018):

“9th of March 2018

Re: Termination Letter for Anju Das.

Dear Anju my intention on supervising you was for you to improve your skills so you could gradually build up her hours and become full time at our practice.

However, over time you have not met the expectations and in fact your hours have reduced due to clients not wanting to rebook with you and adverse feedback coming back to me and to referring doctors. This has in turn affected our practice.

I have on many occasions discussed this with yourself, but you always comes back to the few clients that do book in and these are the compensable clients. Overall you have failed to take on board the feedback I have given you. As your supervisor I expected you to listen to my feedback and change but this did not occur. Hence it has affected your performance as a physiotherapist and this has affected our practice.

I have had on many occasions clients complain because they receive shortened sessions or inappropriate treatment. Also I have been reluctant to let you treat private clients as quite a few of them have given me poor feedback about your assessment and treatment. In the private practice setting I would have expected by this stage that you are able to be confident in assessing and treating various conditions and for me to be confident to book private clients with yourself. However I have been very reluctant in providing you with private clients.

I have requested that you do some courses that are approved through the Australian Physiotherapy Association. I have recommended that you do some courses that will compliment you on becoming a better physiotherapist in the private practice setting but you failed to comply to my requests. It is a requirement for registration purposes that you attain the required CPD points. You did mention that you did a course for your employment in aged care recently, but you failed to do courses recommended for your employment in private practice.

Working in aged care has very different responsibilities and level of knowledge compared to working in private practice. At the current state I don't believe you have made an effort to improve your skills to the level that I would have expected by now. this is affecting our practice as clients are not rebooking and this is affecting our practice reputation with the referrers.

There has been some other factors in her performance that has led me to cease being her supervisor:

1. Inability to retain clients. High cancellation rate of clients

2. Poor feedback from clients. I am aware that some clients have been happy, but there has been a high number of clients giving unfavourable feedback and this reflects on our practice.

3. Treatments chosen for conditions not being optimal and not effective in significant number of cases. This also stems from not being able to diagnose correctly. By now I would have expected improved skills in assessment, diagnosis and treatment.

4. Not keeping up to date with report writing to doctors. Especially EPC clients, it is a requirement by medicare that an initial and final report is written and this is not being done.

5. One of the medical centres has ceased referring to her as there were a lot of complaints about reduced time of treatment, poor treatment sessions.

6. Non compliance for doing requested courses that will benefit her performance as a

physiotherapist in private practice.

Our decision to terminate your employment at Complete Care Physio Health Group P/L and also for me to cease as acting as your supervisor is purely based on the above factors. It is in the best interest of our practice to cease your employment effective 9^th of March 2018.

AHPRA has also been notified on this day that I will no longer be acting as your supervisor.

Regards,

Yasemin Arslan/Supervisor/ Director

Date 14/04/2018

Anju Das / Supervisee

Date”

[26] The matter before the Commission indicates a relatively stable employment relationship prior to February 2018, with potentially one wrinkle, being the decision to no longer send Ms Das to the Hallam Medical Centre after November 2017. Ms Arslan contends about that decision that it was the subject of an identification by her to Ms Das that there had been complaints about her and in particular that the Medical Centre was not happy with her treatment of clients and especially the amount of pressure she applied in the case of certain treatments. 17 Ms Das denies that anything of that nature was ever said to her and that instead she was told that she would no longer be attending the clinic for reasons which included a preference on the part of the clinic to have a male practitioner.18

[27] The termination letter provided to Ms Das, set out above, includes three substantial complaints about her performance; her inability to retain clients coupled with a high cancellation rate; poor feedback from clients; and the provision of suboptimal treatment in some cases to particular clients.

[28] The highest that the evidence rises on the first of these matters is Ms Arslan’s own complaints on the subject. There is nothing of substance before the Commission that would allow a finding that in fact Ms Das was finding it difficult to retain clients.

[29] The matter of poor feedback from clients is illustrated firstly by the request from Hallam Medical Centre in November 2017 to no longer have Ms Das working at its facility. Coupled with Ms Das’ concern from March 2018 that Ms Arslan had directed clients away from her:

“She states in the F3 response form that she has not been booking private clients with me and also claims that I have been spoken to about this. However, I totally deny this statement as she never mentioned anything about this matter to me and I myself realized this happening since February 2018 but never asked her for a reason. Now she claims that her actions were due to my poor performance, which is completely untrue. I believe if her decision was due to my performance she should have spoken to me earlier. Hence, I strongly believe she made these decisions due to my circumstances at that time and was they were unfairly directed towards me.

High Cancellation rate & poor feedback from clients:

Yasemin cancels my clients and manipulates that the clients themselves cancelled the booking. I found out this on 8^th March , when I went in to do the reports as asked by her. She stated that I don’t have any bookings on that day as all the clients cancelled so I can work on completing the reports. While I was at the clinic I realized that all my existing clients were transferred to other physiotherapists. One of the clients informed me that they were being told that I am not working on that day and they can consult other Physios instead. However, Yasemin states that it was the clients who cancelled due to my performance.

I asked the practice manager (Holly) about the issue and she stated that Yasemin had transferred the clients because Yasemin was not sure when I could come back to work after my sick leave on the previous working day (5^th March). However I had informed Yasemin on 5^th March itself after consulting with my doctor that I will be back at work on the 8^th March and also provided her with a medical certificate and a fitness certificate that she had asked for in order to return to work.

On the same day (8^th March) I saw a note in the system that Yasemin had left for Admin staff stating not to book clients with me as I’m not well and not sure when I would return to work.

These above actions from Yasemin shows her remarks on my performance are untrue and fabricated only to defend the unfair decision that she has made. Also I believe that if there had been any poor feed backs/complaints from clients, she should have discussed it with me during my employment with the company. It is to be noted that my supervision reports from Yasemin indicates good standard of performance.” 19

[30] This is potentially one of the few matters of substance agreed between the parties, with Ms Arslan acknowledging in the Employer Response Form that in the latter part of the employment period, in March 2018, she had taken private clients away from Ms Das because of the concern she held about her performance:

“On the period of time between the 5th of March till 7th March I made an effort to go through the list of clients seen by Anju over a 3 month period time and see why clients were not booking. The majority did not want to rebook with her because she was not effective in her treatment. Over the period of time she has been employed by the company I have no allowed out Practice Manager or other admin staff to book private clients with Anju as the majority have verbally complained to me and hence I have made an active decision to avoid Anju seeking private clients. I have also advised the Practice Manager that no new WorkCover or TAC clients be booked with Anju for some time now as I was not happy with her assessment and treatment skills.” 20

[31] Even though this action was taken by Ms Arslan, the substance of the complaints made by the patients or the poor feedback which they gave is very thinly demonstrated to the Commission. The furthest which has been attempted, and which I do not rely upon, is a letter included in the Respondent’s documents said to have been written by patient in order to put in a formal written complaint about Ms Das to Ms Arslan, with that matter also being dealt with as follows in the parties respective written submissions and evidence to the Commission:

• From Ms Das’ submissions:

“Yasemin cancels my clients and manipulates that the clients themselves cancelled the booking. I found out this on 8th March , when I went in to do the reports as asked by her. She stated that I don’t have any bookings on that day as all the clients cancelled so I can work on completing the reports. While I was at the clinic I realized that all my existing clients were transferred to other physiotherapists. One of the clients informed me that they were being told that I am not working on that day and they can consult other Physios instead. However, Yasemin states that it was the clients who cancelled due to my performance.

I asked the practice manager (Holly) about the issue and she stated that Yasemin had transferred the clients because Yasemin was not sure when I could come back to work after my sick leave on the previous working day (5^th March). However I had informed Yasemin on 5^th March itself after consulting with my doctor that I will be back at work on the 8^th March and also provided her with a medical certificate and a fitness certificate that she had asked for in order to return to work.

On the same day (8^th March) I saw a note in the system that Yasemin had left for Admin staff stating not to book clients with me as I’m not well and not sure when I would return to work.

These above actions from Yasemin shows her remarks on my performance are untrue and fabricated only to defend the unfair decision that she has made. Also I believe that if there had been any poor feed backs/complaints from clients, she should have discussed it with me during my employment with the company. It is to be noted that my supervision reports from Yasemin indicates good standard of performance.” 21

• From Ms Arslan’s submissions:

“I have had numerous complains about ineffective assessment and hence treatment outcomes. I have told Anju about this on many occasions and hence I am sure she was aware that we were not booking many private clients with her. Anju was seeing a DVA client who I saw the next time and he was adamant that he did not want to be seen by her as her treatment aggravates his condition and it took me 2 weeks to rectify the damage done by her.

….

It has been an issue with Anju on many occasions that she rushes the treatment and this leaves the client very dissatisfied. For instance on the 9^th of March at 6:40 PM a client came in for treatment with myself. This client specifically wanted to see me as the Practice Director and put a verbal and written complaint in about Anju Das’s treatment of her. (I am attaching the letter given to me by the client). On the day that the client saw Anju Das 2/8/2017 I was not working at the Practice. Apparently this client came in 10 minutes late due to traffic. This was the first time she was late. She stated that Anju refused to see her for the full session and only treated her for 5 minutes. The client was so distraught that she was yelling at Anju and the admin staff. I approached Anju about this the next day and stated that even if a client is late and they have a genuine reason then the client should be seen for the full time required. The client failed to attend out practice again, but was recommended by her friend to come and see myself…

…

I spoke to some of her private clients in particular the last private client Anju saw on the 26/2/2018. He was quite disappointed and stated he did not want to be seen by Anju Das again. I had seen this particular client and his condition was improving. One of the other physios had also seen him.”

[32] There is no evidence of substance that would allow the Commission to make a finding that the third complaint advanced by Ms Arslan has any veracity. That third complaint is to the effect that Ms Das chose suboptimal treatments for conditions which resulted in ineffective outcomes in a significant number of cases. Ms Arslan attributed that situation to an inability on Ms Das’ part to be able to diagnose correctly. There has been no endeavour on Ms Arslan’s part to demonstrate that Ms Das has been professionally incompetent.

[33] Flowing from the foregoing it may be seen that the first and second complaints about Ms Das’ work performance are somewhat generalised and it is not possible from the evidence before the Commission to establish either that those complaints were genuinely held or grounded in truth.

[34] Even if they are grounded in truth, the evidence does not lead to a finding that the matters had been put to Ms Das with a request that she understand the complaints and work towards correcting her performance and the identified conduct failings. Ms Arslan says that in November 2017 when Ms Das was switched away from the Hallam Medical Centre she told Ms Das that the move was being done because complaints had been received about her treatment. Ms Arslan also gave evidence that in the period 2 to 3 weeks after the move away from the Hallam Medical Centre that she counselled Ms Das about the difficulty she perceived in Ms Das’s work performance and that without correction Complete Care Physio “will look at bringing someone else in”; “will have to look at employing someone else into the practice”. 22

[35] Ms Arslan is very imprecise about the timing of these and other critical conversations and events. Some but not all of this imprecision may be attributable to the fact that as a very busy small business person working in a profession completely unrelated to industrial relations or employment law, she was thereby not especially focused on matters that may be required as points of proof in proceedings such as these. Nonetheless the critical conversations are said to have taken place firstly in November 2017 when Ms Das was moved away from the Hallam Medical Centre and 2 to 3 weeks later when an apparently tough conversation with Ms Das about her future employment was meant to have taken place. The third of the supervision reports provided to the Commission by Ms Arslan and about Ms Das progression is dated 15 December 2017, which presumably would have taken place around the time of such discussions. There is no mention of such serious concerns regarding Ms Das’s performance in this document nor any indication that a failure to improve such behaviours could result in her dismissal.

[36] It is also the case that the Respondent’s Employer Response Form, being a document closest to the dismissal decision, having been filed on 27 March 2018, only slightly longer than a fortnight after the date the dismissal was communicated to Ms Das, makes reference to the feedback given by the Hallam Medical Centre but makes no reference to the subsequent discussion with Ms Das being a firm and pointed conversation about her employment future. In fact the commentary within the Employer Response Form is to the effect that such efforts as Ms Arslan took were communicated “in a nice manner without hurting her feelings”:

“I occasionally called the Medical Centre and went in to visit the Doctors and Practice Manager and she made some suggestions along the way of clients not wanting to see Anju. Hence I tried to tell Anju this in a nice manner without hurting her feelings, but once again she failed to take action on my recommendations. I tried to subtly tell her that doing some courses might assist with hr being more effective, but her comment was always I can’t afford it.” 23

[37] The first time that the documents before the Commission disclose that Ms Arslan claimed to have said to Ms Das that she was being removed from the Hallam Medical Centre because of complaints about her and that she needed to improve appears to be within Ms Arslan’s outline of submissions to the Commission with her putting forward the following:

“Hallam Medical Centre requesting that Anju not work at their practice as a lot of clients were not happy (please see attached supporting letter from the Practice Manager of Hallam Medical Group). Hence at the time I asked on the other Physios if they would like to work at the Medical Centre and Rany Louka offered to work at the Medical Centre. I did not want to lose our contract at the Medical Centre. And I definitely did not want to affect the reputation of the business. Once again it comes down to poor skills and the only way to improve this is by practicing and doing courses.” 24

[38] Mr Arslan also references Hallam Medical Centre in her diary notes which state that in September and November 2017 the following occured:

“Note by Yasemin Supervisor

11/09/17 Anju recommenced at Hallam Medical Centre 11/09/17 x 3 clients cancelled

Note by Yasemin Supervisor

15/09/17 Note by Yasemin:

When Anju was away in August clients were booked with other physios. As they were happy with other physios try remand with [names removed]. They felt level of service was better. Hence I told admin that to keep clients with [name removed], [name removed] as they will get better outcomes. Hence reduced Anju…” (notes cut off)

Note by Yasemin Supervisor

27/11/17 I returned call from Hallam Medical group for Sophia D’Rozario states that a lot of clients were not happy with Anju level of service as the clients did not find her treatments effectives and treatments times were reduced. Some clients complained as being seen for 10-15 minutes. Sophia requested that another physio attend the centre. As [name removed] has been with us for 7 years and is more experiences I states to Sophia that I would speak to [name removed] and see if he could attend. I stated I wouldn’t come and work there as I… (notes cut off)

Outcome

I spoke with [name removed] on 27/11/2017 and he was fine with it so I organised for [name removed] and myself to visit Hallam Medical Centre on 1/12/17 (Friday) to introduce him to the staff at Hallam Medical Centre and teach him how to use clinic software. I spoke with Anju on the 1/12/17 on Friday when she was working (illegible words) states that they did not want her to attend Hallam anymore and stated the reasons and she got defensive but she understood”

Supervisor expectations

As we get a lot of referrals from Hallam Medal Centre I did not want to lose out contract with them, so I decided to send my more senior physios to Hallam Medical Centre.” 25

[39] The only findings which can be made about the conversation in November are that Ms Das knew that she was no longer to be working at the Hallam Medical Centre.

[40] Assuming the sequencing provided by Ms Arslan is correct, then she would have the Commission accept that having told Ms Das there are some problems with her work performance requiring correction, then within a week or two she issued a supervision report which rated Ms Das no lower than “demonstrates performance indicators to a good standard” on 20 different criteria. 26

[41] In fact she rated Ms Das at that level on 16 criteria and “demonstrates most performance indicators to an excellent standard” on 4 of them.

[42] The progress Ms Arslan recorded included that Ms Das “demonstrates professional behaviour with clients and staff” albeit that she “need to do more self learning”; that she was an “effective communicator” who “needs to improve documentation”. She also recorded that Ms Das was “improving with’s subjective and objective assessments” of patients and that in such regard she needed “to further improve subjective and objective assessment and be independent”. Ms Arslan also indicated that Ms Das was “improving analysis and planning” with an expectation that she “improve independence with analysis and planning” and that she “needs to improve handling skills” and “improve exercise prescription” with the objective of improving her intervention skills. It was also said that Ms Das “is careful when assessing and treating and identifying risks in most cases” with an expectation that she “continue improve risk management”.

[43] No part of the December 2017 supervision report can be regarded as raising matters of insufficient performance on the part of Ms Das or giving rise to a reasonable expectation that she should take active steps to remedy defective performance. To the extent that the supervision report provides anything of critical comment, that commentary must reasonably be regarded as merely an indication of expected performance improvement, in the sense that any supervisor may expect their charge to continue to develop as they become more professionally experienced.

[44] In the determinative conference conducted before me Ms Arslan put forward about the supervision reports that “…with AHPRA, if I write anything detrimental, that’s going to affect her employment in the future…” 27 and “…The thing is I think I was being too nice. That was my fall-back, honestly.”28 I do not accept that explanation and instead view it merely as an attempt by Ms Arslan to support her contention that warnings were given by her to Ms Das in the period of November to December 2017. In this regard I take into account messages exchanged between the pair relating to the supervision report in late December. On 20 December 2017 Ms Das reminded Ms Arslan about the supervision report and requested that it be completed by the coming Friday, 22 December 2017. On Friday, 22 December 2017 Ms Das thanked Ms Arslan for the provision of the report.

[45] If Ms Arslan is seriously putting forward the proposition that the report was prepared for the benefit of the Physiotherapy Board and that she did not want for there to be undue professional consequences for Ms Das because of negative feedback, then it could reasonably be expected that somewhere around the time of the provision of the report that there was at least some commentary directly to Ms Das to the effect that notwithstanding the positive contents of the report that attention still needed to be paid by Ms Das to the things about which Ms Arslan was really concerned. There was no such commentary evident in any of the materials provided and it is likely this is because Ms Arslan simply did not hold the concerns she said she now did or at least, if she did hold those concerns, she was not prepared to communicate them to Ms Das and did not do so until after the dismissal.

[46] I am satisfied from the evidence before me that the claimed content from Ms Arslan of the November and December 2017 conversations was not communicated to Ms Das.

[47] When the New Year commenced, the Clinic’s work was slow, or at least the bookings for Ms Das were slow. However, at some time in late January or early February Ms Arslan made a deliberate decision to keep work away from Ms Das. Given that Ms Das had advised of her pregnancy to Ms Arslan on 9 January 2018, with her baby due in July, and that she was anticipating, at that time at least, commencing maternity leave from June 2018, the decision by Ms Arslan to keep work away from Ms Das’ is explained either by the reasoning she now puts forward, to the effect that there had been client complaints or by the explanation Ms Das puts forward, that the decision is connected with her decision to announce her pregnancy. It is also of course the case that it is possible that the decision to take work away from Ms Das was connected with both situations.

[48] The evidence about the client complaints is referred to above and such evidence as there is simply does not substantiate that it was reasonable for Ms Arslan to react in the way she did. Not only was she Ms Das employer, but also she was Ms Das’ professional supervisor with an obligation to assist her in her professional development. The framework established within the supervision report could reasonably have been used as a means to initiate conversation with Ms Das about her perceived failings. Alternatively, other methodologies could have been used to take the opportunity to discuss concerns about client complaints with Ms Das. Instead, Ms Arslan simply took work away from Ms Das.

[49] In discussing with Ms Arslan’s her reasoning for deciding upon the dismissal of Ms Das when she did, it becomes evident that the decision had been brewing for a short time prior to Thursday, 8 March 2018, which is the day Ms Das was completing patient reports.

[50] Ms Arslan says that she had already, a few days prior to 8 March, formed the view that Ms Das needed to go, but that Ms Das’s inability to complete the required reports on 8 March was the final straw which led to her dismissal. 29 From what may be gleaned from the material before the Commission, the actual decision to dismiss was a consequence of the report writing conducted on that day. It is unclear whether, had Ms Das made more progress than she actually did with the report writing, that she would not have been dismissed.

[51] It appears likely from the total material before the Commission that a dismissal would have eventually occurred, if not in the week after 8 March, then perhaps a few weeks afterwards. That conclusion is drawn largely because of the deteriorating relationship between the two parties and that Ms Arslan’s decision to take work away from Ms Das would eventually become a self-fulfilling prophecy in which Ms Das could not be sustained as an employee because she had insufficient work to do.

[52] The criticisms advanced by Ms Arslan about the report writing have some elemental truth, but likely insufficient to enable a finding that the failure to complete sufficient reports was a valid reason for dismissal. It is said by Ms Arslan that Ms Das completed 8 reports between 10:30 AM and 2:30 PM; roughly one report each half-hour. It is also said by Ms Arslan that another 50 reports required completion. While it may be observed on the basis of the samples provided to the Commission in Ms Arslan’s material of uncompleted report requests that completing 8 reports in the time Ms Das was at the clinic may be somewhat light-on, it would appear to be unlikely that even a very experienced or productive physiotherapist could have completed many more than perhaps 10 in the time referred to, and it would be improbable, to the point of impossible, for anyone – even Ms Arslan – to have completed the full 50 in the time allowed, if in fact there were 50 to be completed.

[53] Ms Arslan’s expectations about Ms Das’s report writing are set out in the message from her to Ms Das on 7 March 2018 at 7:19 PM when she says “if you come in tomorrow there is some reports you need to complete for epc clients which have not been done but which should have been. You can come in for few hours and complete your reports. These reports are a requirement for all epc clients as dictated by Medicare.” There is nothing within that message which would reasonably lead to a finding that Ms Das was expected to complete a particular number of reports, or that there were a large number to be completed or that their incomplete status was causing Ms Arslan aggravation. The message also fails to stand as a caution to Ms Das that her continued employment was at risk because of the incomplete reports.

[54] While it is unclear what Ms Arslan’s expectations may have been about the number that should have been completed in the period, whatever her expectations may have been or however wildly based, no expectation was actually communicated by her to Ms Das. The formation of the view by Ms Arslan that Ms Das had completed insufficient work on the day in question was unreasonably formed.

[55] What occurred after 8 March 2018 is that, for whatever reason, Ms Arslan formed the view that continued employment of Ms Das was no longer sustainable. She then contacted the Fair Work Ombudsman on 9 March 2018 and sought some advice about the situation and either in the course of that advice or at some time proximate to it formed the view that she would dismiss Ms Das and started drafting a dismissal letter. She then communicated that dismissal intention to Ms Das through a message on 12 March 2018 and followed it up with a meeting on 14 March 2018 in which she provided to Ms Das the termination letter referred to above. The date indicated on the letter of 9 March 2018 is explained by reason of that being the date upon which a draft of the letter was first attempted.

SMALL BUSINESS FAIR DISMISSAL CODE

[56] As referred to above, s.396 requires consideration of consistency with the Small Business Fair Dismissal Code (the Code) as an initial matter, before consideration is given to the merits of an application. If Ms Das’ dismissal was consistent with the Code, then her application fails; if it was not, consideration must then be given by the Commission to the provisions of s.387. 30

[57] The Code is provided for by s.388 which is in the following terms:

“388 The Small Business Fair Dismissal Code

(1) The Minister may, by legislative instrument, declare a Small Business Fair Dismissal Code.

(2) 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.”

[58] The Code itself is in these terms:

“Small Business Fair Dismissal Code

Commencement

The Small Business Fair Dismissal Code comes into operation on 1 July 2009.

Summary dismissal

It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee's conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.

Other dismissal

In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee's conduct or capacity to do the job.

The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.

The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee's response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer's job expectations.

Procedural matters

In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.

A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.”

[59] Ms Arslan puts forward that at the time Ms Das was dismissed her business engaged 6 employees. 31 Ms Das does not contest that proposition. I therefore consider it appropriate to proceed on the basis of the Respondent’s contention that it is a small business to which the Code applies.

[60] As will be evident from a reading of the Code, it consists of two parts and the question of whether a dismissal is consistent with the Code requires consideration of whether it meets the tests of the “summary dismissal” part, or the “other dismissal” part.

[61] A review of the evidence in this matter shows that Ms Das’ dismissal is consistent with neither part of the Code. There is nothing before the Commission that would support a finding that she had been dismissed without notice or warning because Complete Care Physio believed on reasonable grounds that her conduct was sufficiently serious to justify immediate dismissal. Likewise there is nothing before the Commission to show that she was given a reason why she was at risk of being dismissed or that there was a valid reason for doing so. There is also no evidence that she was warned, that she risked being dismissed or was provided with an opportunity to rectify any work-related problems the employer perceived about her performance.

[62] It would not be inconsistent with the Small Business Fair Dismissal Code for an employer such as Ms Arslan to point to the November and December 2017 conversations as being critical points in the employment relationship. That if in time and given the reasonable opportunity to respond to such warnings coupled with a realistic chance to correct the identified problem, may well amount to a circumstance justifying Ms Das’ dismissal from employment. That of course depends upon whether it can reasonably be found that such a conversation as put forward by Ms Arslan ever took place. The material before the Commission, other than Ms Arslan’s own oral evidence, does not support that such conversation took place and I find that did not.

[63] There is no basis to find that the decision made by Ms Arslan in January 2018 to direct work away from Ms Das was reasonably held. Moreover, there is also no evidence to find that communication occurred between Ms Arslan and Ms Das that, without improvement, Ms Das risked being dismissed. As such, the decision to dismiss Ms Arslan on its own or in tandem with other matters does not amount to a valid reason for Ms Das’ dismissal.

[64] Likewise the view formed by Ms Arslan on or around 9 March 2018 that her failure to complete sufficient physiotherapy reports, along with the other criticisms held about her performance, meant that Ms Arslan had a valid reason for dismissing Ms Das cannot be found to be validly held.

[65] Neither the referencing made by Ms Arslan to an inability to retain clients or the poor feedback or complaints about Ms Das have been demonstrated to be sufficiently grounded in fact; and there is no evidence of any kind before the Commission about Ms Das choosing sub-optimal treatments.

[66] As a result there is no finding to be made to the effect that Ms Das’ dismissal was consistent with the Small Business Fair Dismissal Code.

[67] As a result of the foregoing findings it is necessary to consider whether Ms Das’ dismissal was an unfair dismissal after consideration of the criteria within s.387 of the Act.

LEGISLATION

[68] The legislative provisions which are relevant to this matter are set out in s.387 of the Fair Work Act 2009 (the Act), which is as follows:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the 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 the FWC considers relevant.”

CONSIDERATION

[69] Determination of whether Ms Das’ dismissal was harsh, unjust or unreasonable requires each of the matters specified in s.387 to be taken into account.

[70] The Full Bench has summarised the approach that should be taken by the Commission to the criteria within s.387 in the following way: 32

“[28] The following propositions concerning consideration as to whether there is a valid reason for dismissal for the purpose of s.387 are well established:

• a valid reason is one which is sound, defensible and well-founded, and not capricious, fanciful, spiteful or prejudiced; 33

• a reason would be valid because the conduct occurred and justified termination; conversely the reason might not be valid because the conduct did not occur or it did occur but did not justify termination (because, for example, it involved a trivial misdemeanour); 34

• it is not necessary to demonstrate “serious misconduct” or misconduct sufficiently serious to justify summary dismissal in order to establish a valid reason for dismissal; 35

• the existence of a valid reason to dismiss is not assessed by reference to a legal right to dismiss 36 (so that, for example, where summary dismissal has occurred, it is not necessary to determine whether the right of summary dismissal was legally available); and

• the criterion for a valid reason is not whether serious misconduct as defined in reg.1.07 has occurred, since reg.1.07 has no application to s.387(a) (although a finding that misconduct of the type described might well ground a conclusion that there is a valid reason for dismissal based on the employee’s conduct). 37” (original references)

[71] I will deal with each of the criteria within s.387 in turn.

(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)

[72] Determination of a valid reason involves an examination of whether the reason given is “sound, defensible or well founded”, within the overall context of the employment relationship;

“At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies 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. The provisions must ‘‘be applied in a practical, commonsense way to ensure that’’ the employer and employee are each treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd (1995) 60 IR 1, when considering the construction and application of s 170DC.” 38

[73] The evidence before the Commission, for the reasons set out above does not allow a finding that there was a valid reason for Ms Das dismissal relating to her capacity or conduct.

[74] There had been a deteriorating relationship between the parties, with the “final straw” for Ms Arslan being the lack of progress in completing the patient reports on 8 March 2018. The termination letter provided to Ms Das includes three substantial complaints about her performance; her inability to retain clients coupled with a high cancellation rate; poor feedback from clients; and the provision of suboptimal treatment in some cases to particular clients.

[75] For the reasoning referred to above, none of those matters are firmly grounded and none, individually, or in combination, rise to the level of them being a valid reason for Ms Das’ dismissal.

(b) whether the person was notified of that reason

[76] Ms Das was notified of the reasons held by Ms Arslan for her dismissal, by way of a letter provided to her on 14 March 2018.

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[77] For the Commission to have regard to whether an employee has been given an opportunity to respond to the reason for dismissal there needs to be a finding that there is a valid reason for dismissal. 39 I have not found there was a valid reason for Ms Das’ dismissal.

[78] In any event, the evidence does not allow a finding that Ms Das was given an opportunity to respond to the reasons held by Ms Arslan for her dismissal relating to her capacity or conduct.

(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

[79] There were no discussions with Ms Das about a potential dismissal prior to the dismissal being communicated to her through a text message on 12 March 2018.

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

[80] The matters set out within the termination letter are reasonably to be viewed as matters of unsatisfactory performance on the part of Ms Das. For the reasons set out earlier in this decision, I am not able find that Ms Das had been warned about the consequences of continued unsatisfactory performance.

(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

[81] Ms Arslan has handled the decisions surrounding Ms Das’ dismissal very poorly. At various stages during the processes leading to the determination of this matter she has claimed to have spoken either to the Fair Work Ombudsman about the matter or to her own legal advisers. It is unclear what that advice may have been.

[82] However, it is very clear that Ms Arslan has acted in a way which assumes that, as an employer, she is entitled to simply remove an unproductive employee or one who, because of her impending maternity leave, may not develop to the point that may otherwise be expected. To the extent that she may have been given advice contrary to the way she acted, I suspect she has simply ignored that advice and decided that she would act as she saw fit. To an extent she is likely impervious to good advice about how a poor situation may be retrieved and, if she did take advice either from the Fair Work Ombudsman or a lawyer, it may be presumed that the questions she asked of them were designed to elicit an answer favourable to her beliefs and prejudices about Ms Das’ performance and what should be done.

[83] I am satisfied as a result that the size of the Ms Arslan’s enterprise has likely impacted upon the decision to terminate Ms Das employment, and the way in which it was implemented.

(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;

[84] A small business, the size of Complete Care Physiotherapy cannot reasonably be expected to have any dedicated human resource management specialisation or expertise in its enterprise. The decisions taken about Ms Das’ dismissal were taken entirely by Ms Arslan and it is doubtful that any amount of specialisation or expertise in the enterprise would have moved away from the decisions that actually were taken.

(h) any other matters that the FWC considers relevant

[85] Ms Das puts forward that her dismissal came about as a result of the communication by her of her pregnancy and her intention to take maternity leave first from June and then later from April. I agree that the overall circumstances before the Commission would point to a likelihood that Ms Das’ announcement was connected with how she was treated from that point. It is likely that until that point Ms Arslan saw Ms Das as an underperforming or non-developing employee to be tolerated as long as she did not cause too much trouble for the business and that she was prepared to put up with her in the business until a better option presented. When Ms Das communicated her pregnancy and that she would be leaving, at least for maternity leave, in a few months’ time the inescapable conclusion is that this prospect became too much for Ms Arslan who, being preoccupied with the success of her business, needed to find and implement a succession plan, sooner rather than later. She was no longer prepared to engage someone she saw as underperforming or at least not developing quickly enough and so, from that point forward became somewhat hypercritical about Ms Das. First, having formed the view that an undue number of complaints were being made about Ms Das, she moved to take work away from her. Second, when she saw the need for reports to be completed, she asked that they were and, when it became apparent that the number of reports completed were insufficient based upon an expectation which was never communicated to Ms Das, formed the view that that in itself was ineffective performance.

[86] As a result of the foregoing, I find that there was no valid reason for Ms Das’ dismissal, related to her capacity or conduct and that the decision to dismiss Ms Das was procedurally unfair for the reason that she was never warned about the matters that might lead to her dismissal or given an opportunity to respond to them, or indeed to improve her performance in a way which would safeguard her continuing employment.

[87] In the circumstances Ms Das’ dismissal was harsh, for the reason that it was disproportionate to the problems, if any which were really being experienced by the Respondent. It was also unjust and unreasonable, for the reason that Ms Das was never made aware of the perceived failings about her performance or given an opportunity to improve that which was complained about.

[88] As a result, I find that Ms Das was unfairly dismissed within the meaning of s.385 of the Act.

REMEDY

[89] The sections of the Act dealing with remedy once a finding of unfair dismissal has been made are as follows:

“390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) The FWC may make the order only if the person has made an application under section 394.

(3) The FWC must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and

(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.

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 the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC 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 the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC 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), the FWC 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), the FWC must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer’s enterprise; and

(b) the length of the person’s service with the employer; and

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

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that the FWC considers relevant.

Misconduct reduces amount

(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

Shock, distress etc. disregarded

(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.

Compensation cap

(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:

(a) the amount worked out under subsection (6); and

(b) half the amount of the high income threshold immediately before the dismissal.

(6) The amount is the total of the following amounts:

(a) the total amount of remuneration:

(i) received by the person; or

(ii) to which the person was entitled;

(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and

(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.”

[90] Pursuant to subsection 390(3) of the Act an order for the payment of compensation to a person must not be made unless the Fair Work Commission “is satisfied that reinstatement of a person is inappropriate” and also that the Commission “considers an order for payment of compensation is appropriate in all the circumstances of the case.”

[91] Ms Das submits that in all the circumstances it would be inappropriate to reinstate her and that instead an order for compensation should be made. Ms Arslan also rejects the possibility of reinstatement of Ms Das in the event of a finding of unfair dismissal. In any event after considering the evidence before the Commission and considering the demeanour of both parties in the determinative conference conducted by me I consider that there would be insufficient trust and confidence between the parties for the employment relationship to be viable. I am satisfied in all circumstances that it would be inappropriate to reinstate Ms Das and that instead I should give consideration to an order the payment of compensation

(a) the effect of the order on the viability of the employer’s enterprise

[92] Ms Arslan and did not put forward anything for consideration by me in relation to this criterion.

(b) the length of the person’s service with the employer

[93] Ms Das’ employment with Complete Care Physio health group was only for a short period, between 2 September 2016 and 12 March 2018. This period had been sufficient for Ms Das to establish an entitlement to maternity leave, but in the overall scheme, was nonetheless a relatively short period of employment.

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

[94] In matters in which compensation is a consideration, the Commission ordinarily makes an assessment of remuneration the employee lost through dismissal, which in turn requires a finding in relation to “anticipated period of employment”. The Full Bench of the Australian Industrial Relations Commission has observed the following in relation to these matters:

“[33] The first step in this process - the assessment of remuneration lost - is a necessary element in determining an amount to be ordered in lieu of reinstatement. Such an assessment is often difficult, but it must be done. As the Full Bench observed in Sprigg:

". . . we acknowledge that there is a speculative element involved in all such assessments. We believe it is a necessary step by virtue of the requirement of s.170CH(7)(c). We accept that assessment of relative likelihoods is integral to most assessments of compensation or damages in courts of law."

[34] Lost remuneration is usually calculated by estimating how long the employee would have remained in the relevant employment but for the termination of their employment. We refer to this period as the "anticipated period of employment". This amount is then reduced by deducting monies earned since termination. Only monies earned during the period from termination until the end of the "anticipated period of employment" are deducted. An example may assist to illustrate the approach to be taken.”  40 (endnotes omitted)

[95] Ms Das worked at Complete Care Physio health group as a part-time physiotherapist. At first she worked 3 days a week and then from about November 2017 worked 2 days per week. In addition to working for the Respondent, in private practice, she also worked for another employer in the aged care sector and continued to do so until 16 June 2018 when she commenced on maternity leave. Ms Das’ child was born on 29 June 2018 and so far she has not resumed employment.

[96] The remuneration lost to be taken into account in this decision therefore is the amount that would otherwise have been received from Complete Care Physio Group but was not. Payslips were submitted to the Commission by Ms Das, as well as Ms Arslan, showing that she received both a base rate of pay and a payment relating to the number of patients she saw, referred to as “Commission” payments. The same information shows that there were no appreciable payments made to Ms Das during January when she took leave. After deducting January from the payments made to Ms Das between 1 September 2017 and 28 February 2018 the information shows that Ms Das earned on average $528.16 per week, comprised of $348.90 in base rate payments and $179.26 in commission payments. In addition to these payments, Ms Das received a payment of 9.5% superannuation. Compensation will therefore be calculated on the rate of $528.16 per week with an additional amount of 9.5% superannuation.

[97] In Ms Das’ case there is some practical difficulties in establishing the anticipated period of employment.

[98] On the one hand she was a continuing part-time employee, with a reasonable expectation of continuing employment. On the other hand she had indicated that she would be shortly commencing maternity leave, with there being some uncertainty about when that was expected to occur. Firstly Ms Das had indicated in January that she would be commencing that leave in June 2018; secondly in early March, by the time the pregnancy had progressed and she was experiencing some illness, she had said to Ms Arslan that her plan was to take maternity leave from 16 April 2018. It is also to be taken into account that, as things actually transpired, Ms Das continued to work in her other employment until 16 June 2018, a period of 14 weeks after the dismissal from Complete Care Physio Group.

[99] It is also to be taken into account that, by February and March 2018, that the employment relationship was becoming icy and was likely not to continue indefinitely.

[100] After considering all of these matters, my finding in respect of the anticipated period of employment is that it was unlikely to continue for the 14 weeks until 16 June 2018, when Ms Das finished in her secondary employment, and that it would have been at least the five weeks between 12 March 2018 and 16 April 2018, being the date that Ms Das had communicated in early March was the date from which she expected to take maternity leave. As a result, I find that the anticipated period of employment was 5 weeks.

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal

[101] After being dismissed on 12 June 2018 Ms Das continued in employment with her other employer, but did not increase the number of hours she worked and also did not take any steps to obtain alternative employment. In the circumstances, where not only was she dismissed close to the commencement of the third trimester of her pregnancy, but also where she herself had anticipated that she might commence on maternity leave during April 2018, I do not consider it to be unreasonable that Ms Das to not seek alternative employment following her dismissal. As a result, no adjustment is required to any compensation I may order as a result of Ms Das’ dismissal by the Respondent.

(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

[102] As referred to, Ms Das obtained remuneration from secondary employment and continue to do so until 16 June 2018. Her evidence is that this employment was both before and after her dismissal from Complete Care Physio. As a result no adjustment is required to any compensation I may order as a result of Ms Das dismissal by the Respondent.

(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

[103] There is no evidence before me in this regard, since at the time of the hearing Ms Das indicated that she was not in employment. Consequently there is no need to make an adjustment to the compensation to be ordered for this criterion either.

(g) any other matter that the FWC considers relevant.

[104] I am not aware of any other considerations which might be relevant to the order of compensation, and have considered all of the circumstances of the case in determining an appropriate remedy.

[105] Since Ms Das’ dismissal does not relate to an allegation of misconduct, no consideration is required to be given to the obligation in s.392(3) of the Act to reduce the amount of compensation to be ordered as a consequence of the Commission being satisfied about misconduct on the part of the applicant.

CONCLUSION AND ORDERS

[106] After consideration of the foregoing issues, I find that the Applicant was dismissed and that it was unfair within the meaning of the Act.

[107] I find that reinstatement is not an appropriate remedy in this case.

[108] I find that compensation is appropriate.

[109] The approach by the Fair Work Commission in these matters, and which I follow here, is to estimate the remuneration the employee would have received if they had not been dismissed (usually calculated by estimating how long the employee would have remained in the relevant employment but for the termination of their employment); deduct any remuneration earned by the employee since their dismissal until the end of the anticipated period of employment; deduct an amount for contingencies; 41 consider the impact of taxation and adjust the figure accordingly; and assess the figure against the compensation cap set by s.392(5).42 It may not be appropriate to deduct contingencies if all of the projected period of continued employment has passed.43

[110] In relation to the matter of contingencies, I find there are none that ought to be taken into account in this matter.

[111] The Commission’s order for compensation will be for a payment of 5 weeks compensation, and as set out above, the order for payment will be on the basis of weekly payments of $528.16 with an additional amount of 9.5% superannuation. The compensation to be ordered will be subject to taxation according to law. No deductions will be made either for misconduct, monies earned since termination or contingencies. My calculation of the amount payable is set out in the following table;

[112] The total amount of $2,892 does not exceed the compensation cap applying at the time of dismissal.

[113] In accordance with this decision, $2,641, less taxation, is to be paid directly to Ms Das, and $251 is to be paid to her superannuation account. The order will require the payments to be made within 14 days of the date of this decision.

COMMISSIONER

Appearances:

Ms Anju Das on her own behalf.

Ms Yasemin Arslan on behalf of the Respondent.

Hearing details:

2018.

Melbourne:

25 August.

Printed by authority of the Commonwealth Government Printer

<PR700570>

 1   Transcript, PN272 – PN289.

 2   Transcript, PN175 – PN191.

 3   Transcript, PN157 – PN166.

 4   Transcript, PN167 – PN185.

 5   Transcript, PN649 – PN 693.

 6   Transcript, PN259.

 7   Form F3 Employer Response Form, p.g. 11.

 8   Ibid, pg. 11.

 9   Ibid.

 10   Transcript, PN39 and PN140.

 11   Transcript, PN140 – PN144.

 12   Transcript, PN136.

 13   Exhibit R3, Bundle of Documents, attachment 8.

 14   Form F3, pg. 4.

 15   Ibid, pg.12.

 16   Transcript, PN547 – PN548.

 17   Transcript, PN175 – PN191.

 18   Transcript, PN649 – PN 693.

 19   Exhibit A1, Applicant’s Outline of arguments: merits, pg.6-7.

 20   Form F3, pg. 9.

 21   Exhibit A1, pg.6-7.

 22   Transcript, PN259.

 23   Form F3, pg.10-11.

 24   Exhibit R1, Respondent Outline of arguments: merits, pg. 17.

 25   Exhibit R3, attachment 10.

 26   Exhibit R3, attachment 3.

 27   Transcript, PN278.

 28   Transcript, PN282.

 29   Transcript, PN547 – PN548.

 30   Ryman v Thrash Pty Ltd [2015] FWCFB 5264 at [48].

 31   Form F3, pg. 3.

 32   Titan Plant Hire Pty Ltd v Shaun Van Malsen [2016] FWCFB 5520.

 33   Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.

 34   Edwards v Giudice [1999] FCA 1836; (1999) 94 FCR 561 at [6]-[7].

 35   Sharp v BCS Infrastructure Support Pty Limited [2015] FWCFB 1033 at [32]; Annetta v Ansett Australia (2000) 98 IR 233 at [9]-[10].

 36   Sharp v BCS Infrastructure Support Pty Limited [2015] FWCFB 1033 at [32]; He v Lewin [2004] FCAFC 161; (2004) 137 FCR 266 at [15].

 37   Sharp v BCS Infrastructure Support Pty Limited [2015] FWCFB 1033 at [33]-[34]; O'Connell v Wesfarmers Kleenheat Gas Pty Ltd [2015] FWCFB 8205 at [22]-[23].

 38   Selvachandran v Peteron Plastics (1995) 62 IR 371, pg.373.

 39   Chubb Security Australia Pty Ltd v Thomas (unreported, AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 2000) Print S2679 [41].

 40   Ellawala v Australian Postal Corporation, AIRCFB (2000), Print S5109, at [33] and [34].

 41   See Slifka v J W Sanders Pty Ltd, (1995) 67 IR 316.

 42   See Sprigg v Paul’s Licensed Festival Supermarket (1998) 88 IR 21, 32, and Ellawala v Australian Postal Corporation (unreported, AIRCFB, Ross VP, Williams SDP, Gay C, 17 April 2000) Print S5109 [33].

 43   Bowden v Ottrey Homes Ibid, at [54].

 44  

 45