DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Elizabeth Gomes
v
Gemela Pty Ltd T/A Kool Kidz Preston
(U2019/1842)

Application for an unfair dismissal remedy.

[1] Ms Elizabeth Gomes (Applicant) has made an application to the Commission seeking relief from unfair dismissal. The Applicant was employed by Gemela Pty Ltd T/A Kool Kidz Preston (Respondent) as an Early Childhood Assistant working on an on-going basis, 37.5 hours per week. She commenced employment in May 2017. Her employment was terminated summarily for serious misconduct on 1 February 2019.

[2] The Respondent says that on 1 February 2019 the Applicant was involved in two incidents in relation to children in the care of the Respondent. These involved not securing a child in a highchair such that the child slipped out and not raising the side rail on a cot in which a child was sleeping. The Applicant denies that she was responsible for either incident.

[3] The Applicant was represented in the hearing of her application by her husband, Mr John Gomes. The Respondent was represented by Ms Catherine Wilson, a Director and part owner of the business.

Preliminary matters

[4] The Applicant made her application for relief from unfair dismissal within the 21 days provided for under the Fair Work Act 2009 (FW Act). She is protected from unfair dismissal (she has served the minimum employment period and her employment is covered by a modern award or enterprise agreement), the Respondent is not a small business such that the Small Business Fair Dismissal Code is not relevant and the dismissal was not a case of redundancy.

[5] Prior to the commencement of the hearing and following input from the parties it was agreed that the matter should be conducted as a determinative conference.

Witnesses

[6] The Applicant gave evidence on her own behalf through an interpreter.

[7] Ms Constantina Pitman provided a witness statement for the Applicant but was not required for cross-examination. I have therefore accepted her evidence.

[8] Evidence was given for the Respondent by:

•  Ms Catherine Wilson, Director and part owner of the Respondent;

•  Ms Adriana Cosma, Receptionist/Office Manager for the Respondent (by telephone);

•  Ms Linda Zhang, Child Care Educator for the Respondent; and

•  Ms Skie Sayers, Child Care Educator for the Respondent.

Evidence

Ms Elizabeth Gomes

[9] The Applicant gave evidence that on 1 February she was working in the Honeybees and Snugglepots rooms. Whilst in the Honeybees room at about 12.30pm she put a child in a cot. The baby in the next cot was crying so she patted it on the back. Another educator (Michelle) was there and told her she had not put the rail up on the (first) cot. Michelle then raised the rail.

[10] The Applicant also said that in the afternoon after she had put some rubbish out she returned to the [Snugglepots] room. Jamie, an educator, told her she needed to “rush” to the other [Honeypots] room. Before she went to the other room Linda Zhang, another educator, told her to put a particular child in the highchair. She said she quickly put the child in the highchair and rushed to the next room.

[11] The Applicant said that when she had finished work that day Ms Cosma called her to a meeting at the end of her work day. She met with Ms Wilson who told her there had been two incidents and she could not work there anymore. The Applicant said that Ms Wilson told her that Francesca Petrakos would contact her “regarding the issue”. The Applicant said that Ms Wilson did not explain what had happened, just that there were two incidents and she was dismissed. She said that the meeting went for 10-15 minutes.

[12] On the following Monday 4 February 2019 the Applicant sent an email to Ms Petrakos in which she said:

Also, did you speak to Catherine re: the Friday incident? Please accept my apology for the accident and promise to be more careful going forward. Please let me know what’s your thought.

[13] The Applicant said that since the time of her dismissal she has applied for about 15 jobs but has not been successful in gaining employment.

[14] The Applicant had been on maternity leave in 2018. She returned to work in November 2018. She said that she was told by Francesca that she could only offer her one shift per week on her return. She then requested in writing that she be able to work two shifts per week. Following her return to work she was sometimes only offered one shift per week.

Ms Constantina Pitman

[15] Ms Pitman’s evidence is that the Applicant is a caring, personable and polite co-worker who maintains positive relationships with children their families and co-workers.

Ms Catherine Wilson

[16] Ms Wilson is a Director and part owner of the Respondent. She said that in February 2019 she received a call from Ms Adriana Cosma, Receptionist/Office Manager for the Respondent, while she was away from the centre telling her that there had been a serious incident. Whilst Ms Wilson could not recall the precise time she received the call her recollection was that it was around lunch time. Ms Wilson said she was at the centre within 30 minutes of receiving the call. Ms Wilson said that the first incident was the highchair incident. She maintained that this occurred in the morning.

[17] Ms Wilson’s evidence is that on her return she undertook an investigation of the incident. She said she spoke to all of the educators who were present in the rooms at the time including Linda Zhang and Skie Sayers. She said she recalls also talking to Pip and Jamie but cannot recall who else. Ms Wilson could not recall Michelle being one of the educators working in the room and could not recall speaking to her. She did not speak to the Applicant at this time. She said that Linda told her that the Applicant had placed a child in a highchair. The Applicant did not secure the tray and the child slipped out of the highchair. She said the Skie told her the Applicant placed a child in a cot and walked away without lifting the railing into place.

[18] Ms Wilson said that she spoke to each educator for 5 to 10 minutes or as long as it took for them to tell of the incidents. After speaking to the educators (but not the Applicant) she spoke to Ms Petrakos (who does the HR work for the Respondent), considered the regulations governing the childcare sector and the Respondent’s policies and concluded that the incident was serious enough to warrant instant dismissal.

[19] Ms Wilson said she then organised a meeting with the Applicant at the end of her shift to keep it confidential. She arranged for Ms Cosma to be present as a witness. She said she explained to the Applicant what had happened, and she asked the Applicant if she understood the seriousness of the incident. She explained to the Applicant what serious misconduct was. She said that the Applicant apologised for the two incidents and said it would not happen again. Ms Wilson then explained to the Applicant that, under the policy and because it was serious misconduct, she had no choice but to dismiss her.

[20] Ms Wilson agreed that she had reached a decision that the incidents amounted to serious misconduct and the Applicant was responsible for them and should be dismissed before she spoke to the Applicant. She said however that she gave the Applicant an opportunity to explain herself in the meeting at the end of the day. She said that the Applicant acknowledged she was responsible for both incidents and apologised. Ms Wilson said that if the Applicant had said she was not responsible for the incidents that would have changed her view as to whether she should be dismissed.

[21] Ms Wilson said that she was required to put a report into the Department of Education about the child falling out of the highchair. Her evidence is that the incident created a risk to the child and to the reputation of the Respondent. She said when she spoke to the Department after putting in the report she advised the Department of the cot incident.

[22] Ms Wilson said she now recognises that there was a procedural error on her part in how she dealt with the Applicant. She said she now considers that she should have stood the Applicant down, advised her of the incidents and invited her to a meeting the following week to explain her side of the story. She said the Applicant should also have been invited to bring a support person.

Ms Adriana Cosma

[23] Ms Cosma contacted Ms Wilson when she was advised of the child falling out of the highchair on 1 February 2019. She could not recall the time she made the call.

[24] Ms Cosma said she was asked to be a witness in the meeting between Ms Wilson and the Applicant at the end of that day. Ms Cosma’s evidence is that during the meeting the incidents were explained to the Applicant. It was also explained to the Applicant that the incidents were considered to be serious misconduct and what serious misconduct meant. She said the Applicant was asked to explain what had happened. The Applicant confirmed the incidents. She said that she did not know how to lock the tray into the highchair properly but did not ask for assistance. The Applicant then apologised for the incidents.

[25] Ms Cosma could not recall the precise length of the meeting but said she thought it went for 20 minutes.

Ms Linda Zhang

[26] Ms Linda Zhang, Child Care Educator for the Respondent, gave evidence that on 1 February 2019 she was working in Snugglepots room. She said she was feeding a child in a highchair. She said the Applicant placed a child in a highchair close to Ms Zhang and left. She said the child slipped out of the highchair but did not land on the floor and she managed to stop the child falling with her legs. Ms Zhang demonstrated that she had three highchairs surrounding her in a semi-circle such that she was properly supervising each child.

[27] Ms Zhang said that at the time of the incident Jamie was out of the room. She told Jamie of the incident when she returned and they then reported it to the front office. Ms Zhang said she could not report the incident immediately as she could not leave the children.

[28] Ms Zhang said the incident was in the morning around the time staff were having lunch or perhaps a bit earlier.

[29] Ms Zhang said that the Applicant, and she thought another Educator Pip, were in the room around the time of the incident and that she saw the Applicant place the child in the highchair. She said she did not need to give constant direction to the Applicant as to what to do as she was experienced and knew what was required of her.

Ms Skie Sayers

[30] Ms Skie Sayers, Child Care Educator for the Respondent, said that she was working in the Honeybees room on 1 February 2019. Ms Sayers said it was a stressful day in the room and that she had several conversations with the Applicant through the day about her lack of engagement with the children and had to remind her on several occasions about the need to get down to the children’s level when dealing with them.

[31] Ms Sayers said that she saw that the Applicant had left the rail down on a cot, she raised the railing then spoke to the Applicant about it who acknowledged the incident and apologised. The incident occurred around 12.30pm. Ms Sayers said that while she was not in the cot room when the Applicant left the railing down she could see through the glass window what had occurred. She said no-one else was in the cot room at the time.

[32] Ms Sayers said that she could not recall everyone who was working that day. She recalled that Jamie was there. She could not recall that Michelle was there that day but said that even if she was she was working in Honeybees she was not in the cot room at the time of the incident.

[33] Ms Sayers said she told the Applicant that she would need to report the incident. She spoke to Ms Wilson and Ms Petrakos about the matter.

Consideration

[34] The Applicant presented as a quiet and at times timid witness. Whilst she does speak English the stress of the proceedings meant that she was more comfortable giving evidence in her native language through an interpreter.

[35] The Applicant’s husband was asked to leave the courtroom on two occasions while the Applicant gave evidence as he interrupted to correct the interpreter or clarify the evidence his wife was giving. This made it difficult for me to know what the Applicant was saying in her evidence as opposed to what the Applicant’s husband thought she should be saying.

[36] I do not overly criticise Mr Gomes for this. He is clearly invested in his wife’s welfare and, I consider, sought to do no more than ensure her evidence was clear. He, unfortunately, failed to fully appreciate the difficulties his interruptions cause for me in determining the facts in the case even though this was explained to him. I have been careful to pay attention to what the witnesses told me in reaching my decision.

[37] I accept the evidence of Ms Zhang and Ms Sayers as a truthful account of what each observed. Neither had reason to not be truthful or invent the incidents and who was involved. Further, each of their accounts is consistent with the evidence of Ms Wilson and Ms Cosma as to what the Applicant said in the meeting she had with Ms Wilson on 1 February 2019. Where there is a conflict between their evidence and that of the Applicant I have accepted the evidence of Ms Zhang and Ms Sayers.

[38] The Applicant has not denied the incidents occurred or that she was involved in them. Her evidence is that she did put the child in the highchair. She also agreed she put the child in the cot.

[39] I am satisfied that the highchair incident and cot incident both occurred and that the Applicant was involved in both of them. I am also satisfied that the highchair incident occurred in the late morning, that it was reported to Ms Cosma by Jamie after Linda Zhang told her of it and that Ms Cosma contacted Ms Wilson who returned to the premises. There is no other explanation as to why Ms Cosma would call Ms Wilson around lunchtime to advise her of a serious incident. I am satisfied that, when talking to the Educators about the incident Ms Wilson was made aware of the later incident involving the cot. Ms Sayers did not report the cot incident to Ms Cosma so it could not have caused Ms Cosma to call Ms Wilson. Ms Sayers said and I accept that she raised the cot incident directly with Ms Wilson.

[40] With respect to the highchair incident I am satisfied, based on the evidence, that the Applicant placed the child in the highchair and then left the room. I am satisfied that the child was properly supervised as Ms Zhang had the highchairs in a u-shape in front of her. Because of this arrangement she was able to stop the child falling to the floor with her leg.

[41] Further, I am satisfied, based on the evidence, that I can reasonably infer that the child fell from the highchair because it had not been properly secured into the highchair by the correct placement of the tray. The Applicant placed the child in the highchair. It was her responsibility to safely secure the child and she did not do so. It was, therefore, her actions (or lack thereof) that caused the child to fall from the chair.

[42] With respect to the cot incident the Applicant’s evidence that Michelle raised the railing on the cot suggests that she accepts that she did leave it down. Based on the evidence I am satisfied that the Applicant placed the child in the cot and failed to put the railing up.

[43] It does appear that both incidents occurred in close proximity – that is between about 11.00am and 12.30pm. I do not consider that I need to determine precisely when the incidents occurred.

[44] My conclusions with respect to the incidents and the Applicant’s involvement in them is supported by the evidence of Ms Wilson and Ms Cosma that the Applicant apologised for them in the meeting on 1 February 2019. Even if this was said in a rash moment the Applicant repeated the apology in the email she sent to Ms Petrakos on Monday 4 February 2019. This could not be described as a rash email – she had the weekend to consider what she wrote and was under no obligation to send the email.

[45] For all of these reasons I am satisfied that the conduct relied on by the Respondent occurred.

Was the Applicant unfairly dismissed

[46] A person has been unfairly dismissed if they have 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.

[47] I have set out above that the Small Business Fair Dismissal Code is not relevant and that this is not a redundancy situation. I am also satisfied that the Applicant was dismissed.

[48] Section 387 of the FW Act sets out those matters to be taken into account in determining if a person’s dismissal was harsh, unjust or unreasonable:

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.

[49] I have taken each of these matters into account.

Section 387(a) - a valid reason for dismissal related to capacity or conduct

[50] The Applicant’s employment was terminated because she failed to secure a child in a highchair creating a risk to the child and because she failed to raise the railing on a cot a child was sleeping in. The Respondent considered the conduct of the Applicant to be misconduct (and not poor performance) because of the risk to the children. Whilst it may be seen that the Applicant was dismissed for matters going to her performance, and hence capacity, I am satisfied in this case that the reason for dismissal relates to the Applicant’s conduct.

[51] Whilst the Applicant’s conduct was found by the Respondent to be serious misconduct that is not a matter I need to consider. The requirement is that I determine, on the basis of the evidence before me, firstly if the conduct had occurred and second, if it did occur if it provided a valid reason for dismissal. Whether the conduct constitutes serious misconduct is not a relevant consideration in determining the validity of the reason for the dismissal.

[52] A reason will be a valid reason if it is “sound, defensible or well founded”. 1 In this case I am satisfied that both incidents occurred in that the Applicant placed the child in a highchair but failed to secure the child properly and left the railing down on a cot. These are both serious matters, the first more so because, as a result of the Applicant actions, the child slipped from the highchair. It was only good fortune that the child was not injured. This constituted a reportable incident to the relevant authorities by the Respondent. The gravity of the incident and its potential consequences support a finding that it provided a valid reason for dismissal.

[53] For the reasons given above I am satisfied that the conduct occurred. I am also satisfied that this incident does provide a valid reason for dismissal.

[54] The Applicant (as is any early childhood worker) was entrusted with the care of very young children who have no capacity to fend for themselves. She is obliged in these circumstances to do everything necessary to ensure they are not put in harms way. She failed to do so.

[55] I am also satisfied that the cost incident occurred. I am not convinced that the cot incident, by itself, would provide a valid reason for dismissal. But again the Applicant was fortunate. Another Educator saw the railing was down almost immediately and rectified the error. Had that Educator not done so the child could have injured itself falling out of the cot.

[56] I am therefore satisfied that there was a valid reason for dismissal.

[57] I would observe that, whilst the highchair incident was a reportable matter, this, alone, does not it a valid reason for dismissal. That the incident was reportable is a consideration but it is my finding as to the conduct that must be the determinative factor in any finding as to a valid reason for dismissal.

Section 387(b) & (c) – whether the person was notified of the reason and given an opportunity to respond

[58] In Crozier v Palazzo Corporation Pty Limited 2 a Full Bench of the Australian Industrial Relations Commission established the following:

[73] As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170CG (3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.

[59] Similarly the purpose of being given an opportunity to respond is to provide the employee with a chance to defend themselves such that the employer might decide not to terminate the person’s employment.

[60] In this case Ms Wilson said that, after she spoke to the Educators (but not the Applicant), she considered that the actions of the Applicant warranted dismissal. She said that she concluded that the actions constituted serious misconduct. From her evidence it is apparent that Ms Wilson had made up her mind as to the conduct of the Applicant and the severity of that conduct before she heard from the Applicant. Whilst Ms Wilson indicated that she was prepared to change her mind once she had heard from the Applicant the evidence indicates that it would have been very difficult to dissuade her of her view.

[61] Ms Wilson agreed that she could (and should) have done things differently. She recognised that she should have put the allegations to the Applicant and called her in for a meeting a few days later to hear her response.

[62] There is nothing wrong in an employer forming a preliminary view as to whether an incident was serious or not during an investigation. Such a view may help inform whether more information is needed or if others should be spoken to before finalising the matter. What is necessary is that any preliminary view be able to develop and change as more information is gathered.

[63] In this matter I am satisfied that the Respondent did deny the Applicant procedural fairness. While I am satisfied that Ms Wilson did tell the Applicant of the incidents and invite the Applicant to provide a response, the failing was in not giving the Applicant time to fully comprehend what was being put to her and for her to be given time to provide a considered answer. In circumstances where the Applicant was not working for the early days of the following week there was no prejudice or disadvantage to the Respondent in providing this time to the Applicant.

[64] As I observed above the Applicant presented as quiet and timid. I am not convinced, given these traits, that she was provided with an adequate opportunity to respond in these very particular circumstances.

Section 387(d) - unreasonable refusal by the employer to allow the person to have a support person to assist at any discussions relating to dismissal

[65] Whilst the Applicant did not request a support person – and hence the Respondent did not unreasonably deny access to such – that the meeting was called at the end of her shift suggests the Applicant had little chance to get a support person. Again, given the quiet nature of the Applicant, an opportunity to have a support person would have been a better path for the Respondent to take.

Section 387(e) – warned of unsatisfactory performance

[66] I am satisfied that the reason for dismissal related to the Applicant’s performance of her job but that this did manifest itself in her conduct. I respectfully agree with the Full Bench who observed in Annetta v Ansett Australia Ltd 3 that performance includes “factors such as diligence, quality, care taken and so on”.4 I do accept however that the Applicant’s actions, whilst they did relate to her diligence and care to her work, were such that she put the safety of a child at risk and in this respect it was her lack of diligence to the task at hand that can be described as misconduct.

[67] I do not consider that warnings are a necessary precondition to making a dismissal fair in the particular circumstances of the case before me. That there was no specific warning of the Applicant’s work performance is not fatal to the actions of the Respondent.

Section 387(f) & (g) - the size of the employer’s business and access to human resource management specialist or expertise

[68] The Respondent is not a small business. Ms Wilson gave evidence that Ms Petrakos did all of the human resources (HR) work for the Respondent including rostering. Ms Petrakos was also the person the Applicant dealt with in relation to her parental leave payments. It is not apparent however the extent of Ms Petrakos’ skills or experience in dealing with HR matters.

[69] No submissions were made in relation to any effect caused by the size of the business or limited access to human resources expertise in effecting the dismissal.

[70] This matter has been a neutral consideration in determining the matter.

Section 387(h) - other matters

[71] The Applicant said that at the time she was dismissed she was told that Ms Petrakos would be in contact with her “in a couple of days”. The following Monday 4 February 2019 the Applicant sent the email to Ms Petrakos set out in paragraph [12] above.

[72] Ms Petrakos responded on Wednesday 6 February 2019 that “due to the serious nature of the two incidents our decision stands...”. The Applicant replied in which she sought an explanation as to the “two incidents” and queried some pay she considered was owed to her for leave. Whilst the Applicant pressed that Ms Petrakos did not get back to her until 6 February 2019 it is not clear what I should conclude from this.

[73] The Applicant said that prior to going on parental leave she was working 37.5 hours per week. She said that when she advised Ms Petrakos that she wished to return from parental leave she was told there were limited shifts available for her. She says that she then suggested to Ms Petrakos that she return two days per week on Thursday or Friday. Ms Petrakos told the Applicant she could not give her Friday shifts as it was a quiet day so the Applicant suggested she return Wednesdays and Thursdays. Despite this the Applicant says that she was not provided with rosters in advance and there were weeks when she was not rostered on for two shifts. She said that at times she was not advised until the day before if she was working the following day.

[74] The Applicant took from the Respondent’s conduct in failing to roster her that the Respondent did not want her back at work following her maternity leave. She submitted to me that this was a reason for her dismissal.

[75] Ms Wilson said that once the Applicant’s rostered days was sorted out the Applicant was rostered for her two days per week on a regularly basis.

Consideration

[76] I have considered the reasons for dismissal of the Applicant and the lack of procedural fairness afforded to her in effecting the dismissal. On balance I have decided that the dismissal was unreasonable in circumstances where the Applicant was not given a proper opportunity to respond to the allegations made against her. While I accept that Ms Wilson was open to changing her initial view that the conduct constituted serious misconduct in that it endangered the child, by requiring the Applicant to respond to the allegations with no advanced warning meant the Applicant did not have an opportunity to understand the severity of the allegations or provide a considered response. The Respondent clearly considered the matters very serious – Ms Wilson had reached a conclusion that the conduct of the Applicant amounted to serious misconduct. In the circumstances however there was no reason that Applicant could not have been given details of the allegations, a chance to consider them and gather her thoughts as to the incidents and an opportunity to respond.

[77] A decision to dismiss an employee is not one that should be taken lightly. While I accept that the safety of the children in this case is paramount there was no harm to be done by providing the Applicant with some time to respond.

[78] It is not apparent, on the basis of the emails exchanged between the Applicant and Ms Petrakos that there was any undue delay in Ms Petrakos responding to the Applicant with respect to the dismissal. I accept that there may have been some lack of clarity when Ms Wilson told the Applicant Ms Petrakos would be in touch with her is a couple of days and hence misunderstanding as to the purpose of the contact. Whilst the Applicant raised the issue she made no firm submissions as to the bearing this issue had on her claim for unfair dismissal.

[79] In reaching my conclusion I have not had regard to the issues surrounding the Applicant’s return from maternity leave. Further, it is unclear who suggested the Applicant work two days on her return. An email from the Applicant to Ms Petrakos on 18 October 2018 suggests the Applicant raised the possibility. That email said “just wondering if I could resume work from November? If possible, can I only work Thursday and Friday to start off…” This email does not read as if there have been previous discussions and the email proposal by the Applicant is some concession by her to those discussion. Rather it reads as the first approach to return to work. There is no evidence from Ms Petrakos as to the matter and I do not consider it necessary to make any finding on this in relation to application before me. I would observe however that the payslips of the Applicant and the text messages received by her suggest she did not regularly receive two shifts per week as claimed. I would suggest however that the Respondent ensure it is fully aware of the rights of an employee returning from maternity leave and its obligations in that regard.

Conclusion

[80] For the reasons given I am satisfied that the dismissal of the Applicant was unreasonable.

[81] I am therefore satisfied that the Applicant was unfairly dismissed from her employment with the Respondent.

Remedy

[82] The Applicant does not seek reinstatement. In the circumstances of the case I am satisfied that reinstatement is not appropriate.

[83] The determination of remedy is to be done in accordance with the provisions of s.392 of the FW Act. I am not satisfied that I have the necessary information before me to give proper consideration to the question of compensation.

[84] I shall therefore issue separate directions to the Applicant and Respondent for the filing of further material that address matters of compensation.

Directions

[85] In deciding what compensation should be ordered the Commission is guided by the requirements of s.392 of the FW Act. A copy of s.392 will be attached to the directions.

[86] In responding to these directions the Commission requires that the parties address the criteria in s.392 and in doing so answer the following specific questions (as is relevant to them):

1. How long has the Applicant worked for the Respondent?

2. If the Applicant had not been dismissed how much longer would she have continued to work for the Respondent?

3. Why do you say the Applicant would have continued to work for this period of time?

4. What was the Applicant’s hourly rate of pay prior to her dismissal?

5. If the Applicant had not been dismissed how much longer would she have continued to work two days per week?

6. If the Applicant’s hours per week were to increase what would they be increased to and over what time period?

7. Has the Applicant gained other work since she was dismissed?

8. If so, what is the Applicant’s hourly rate of pay and how many hours per week does she work?

9. Are there any other matters you consider the Commission should consider in determining compensation?

10. Should the Commission reduce the amount of compensation because of the misconduct found to have occurred? If so, by how much?

[87] The Respondent should also advise the Commission if an order will affect its viability.

[88] The parties are not limited to answering these questions but should at least answer these questions.

COMMISSIONER

Appearances:

J. Gomes for the Applicant.

C. Wilson for the Respondent.

Hearing details:

2019.

Melbourne:

June 6.

Printed by authority of the Commonwealth Government Printer

<PR709463>

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

 2   Print S5897.

 3   Print S6824

 4   Ibid at [16].