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 – remedy – compensation ordered.

[1] On 26 June 2019 I issued a decision 1 in which I found that Ms Elizabeth Gomes (Applicant) had been unfairly dismissed from her employment with Gemela Pty Ltd T/A Kool Kidz Preston (Respondent).

[2] In that decision I found that reinstatement was not appropriate but considered that I did not have sufficient evidence or submissions on which to make a decision with respect to compensation. I therefore sought further submissions from the parties with respect to compensation. In seeking submissions from the parties with respect to compensation and, taking into account that neither party was, at the time, represented, I asked specific questions of the parties designed to provide me with the information necessary to determine the matter now before me.

[3] In reaching my decision that the Applicant had been unfairly dismissed I relevantly found that:

•  There was a valid reason for dismissal of the Applicant on the grounds that she failed to secure a child in a high chair and she failed to raise the railing of a cot a child was sleeping in; 2 and

•  The Applicant was not provided with an adequate opportunity to respond to the reason for the dismissal. 3

[4] This decision deals with compensation only.

Compensation

[5] Section 392 of the Fair Work Act 2009 (FW Act) states as follows:

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.

Submissions of the Applicant

[6] The Applicant says that she was employed with the Respondent from May 2017 until she was dismissed on 1 February 2019. She intended to remain with the Respondent (but for her dismissal) and “move up the corporate ladder with the company.” 4 The Applicant says she was happy working for the Respondent and, prior to going on parental leave, received good feedback. The Applicant says that she intended to keep working for the Respondent for financial as well as personal reasons, the Respondent was conveniently located for her and she was not looking to change jobs.

[7] At the time her employment was terminated that Applicant said she was earning $23.68 per hour plus superannuation, annual and sick leave.

[8] On her return from parental leave the Applicant was working part-time. She says that she wanted more hours but this was refused by Ms Francesca Petrakos of the Respondent. The Applicant says that she was ready and available to resume her full-time hours and that she and her husband had arranged for her husband’s parents to come and stay with them to help look after her child so she could increase her hours at work.

[9] The Applicant says that she has applied for “hundreds of jobs” 5 since she was dismissed and attended some interviews. The Applicant says however that once prospective employers find that she was dismissed from her employment or has a matter before the Fair Work Commission (Commission) they show no interest in employing her.

[10] The Applicant maintains that the Respondent did not want her in employment and that the 2019 room allocation/roster was evidence of this. The Applicant submits that the Respondent was just trying to find an excuse to “seal the deal” 6 (i.e. dismiss her). Further, she says that she had no history of poor performance or conduct, she cared for the children and the incidents that led to her dismissal were “human error/unintentional mistakes and definitely not deliberate”7. The Applicant submits that therefore the incidents cannot be classified as [serious] misconduct under the Fair Work Regulations 2009.

[11] The Applicant says that her good track record should not be disregarded and it would be unfair to reduce any amount of compensation awarded for misconduct.

Submissions of the Respondent

[12] The Respondent submits that compensation is in lieu of reinstatement and should not be based on the needs of the Applicant.

[13] The Respondent also submits that in circumstances where the Commission has found a valid reason for dismissal based on the conduct of the Applicant it is open to the Commission to find that the Applicant would have remained in employment for a very short period of time. Further, the Respondent submits that it is not mandatory to make an award of compensation in circumstances where dismissal for misconduct might be justified but the dismissal is found to be unfair due to procedural deficiencies. In this case it submits that the procedural deficiencies are so slight that an award of compensation is not appropriate, particularly so taking into account the gravity of the misconduct.

[14] The Respondent says that on 18 October 2018, while on parental leave, the Applicant emailed the Respondent requesting to return to work two days per week. In doing so it submits she waived her right to return to her pre-parental leave full-time position. The basis of any lost remuneration should be calculated on her two days per week part-time arrangement. The Respondent concedes that, had she not been dismissed, the Applicant would have continued to work two days per week. The Respondent says that there was no prospect that the Applicant’s hours would have increased. The Respondent’s business was fully staffed and there has been no increase in enrolments warranting an increase in staffing hours.

[15] The Respondent says that the Applicant would not have remained employed for more than one week. It makes this submission based on the finding that there was a valid reason for the Applicant’s dismissal and the only factor making it unfair was the lack of procedural fairness. It says that, given the seriousness of the Applicant’s conduct, it was unlikely, even if procedural fairness had been afforded, the Applicant’s employment would have continued. It submits that a procedurally sound process would have taken no more than one week to complete. But for the dismissal the Respondent therefore submits that the Applicant would have remained in employment for a period of one week, constituting 14 hours of employment.

[16] The Respondent says that the Applicant commenced on 1 May 2017 and her employment ceased on 1 February 2019. In this period it says the Applicant took a period of parental leave. The Applicant was employed by the Respondent for approximately 21 months but only “worked” for the Respondent for approximately14 months. It submits that the relatively short period of employment warrants some reduction on the amount of compensation ordered and suggests a discount of 5% for this reason on the lost remuneration.

[17] The Respondent does not seek any discount on the basis of a failure to mitigate and suggests that the Applicant should find alternative employment in a relatively short period of time given the number of child care positions advertised and the Applicant’s five years’ experience.

[18] The Respondent submits that I should consider the failure of the Applicant to participate in conciliation before the Commission and hence prevent a potential early settlement that might have resulted in a deed with terms including mutual confidentiality which may have been of assistance to the Applicant in looking for work. Further, it says that the failure of the Applicant to participate in conciliation has resulted in a cost to the business in defending the matter.

[19] The Respondent submits that the Applicant has shown a lack of contrition for her conduct which, fortunately, did not result in injury to the children involved. The Applicant has chosen a career which has a high level of responsibility and where it is reasonable to be held to a higher standard than in a menial role and where the clients expect their children will be safe.

[20] For these reasons the Respondent submits that any compensation should be curtailed.

[21] The Respondent submits that any award of compensation should be reduced having regard to the misconduct of the Applicant. It says that a reduction of 40% is not unreasonable.

Consideration

[22] The Applicant was dismissed after engaging in conduct that endangered the welfare of a child. In particular she failed to properly restrain a child in a high chair resulting in the child slipping out and she failed to raise the railing on a cot in which a child slept.

[23] I found that this conduct occurred and provided a valid reason for dismissal. That I ultimately found the dismissal to be unfair does not negate the finding that there was a valid reason for the dismissal. I determined that “[o]n 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” 8 and hence was unfair.

[24] Had the Applicant not been dismissed when she was I am satisfied that the Respondent would have still investigated the incident and provided the Applicant with a reasonable opportunity to respond. Given my finding as to valid reason, and the explanation of her conduct provided by the Applicant in the hearing before me, I consider that the Respondent would have been unlikely to reach a different conclusion and would have dismissed the Applicant. I have reached this decision on the basis that there was nothing put by the Applicant in the hearing of her application before me to convince me there was not a valid reason for her dismissal. I do not consider that the Applicant’s period of employment would have had any bearing on the ultimate decision of the Respondent to dismiss the Applicant.

[25] However, I am satisfied that this process would have taken no more than a further four weeks at the most to complete. Whilst I acknowledge the submissions of the Respondent on this point I am not convinced that the matter would have been dealt with in any quicker timeframe, given the limited hours and days the Applicant worked. The Applicant would therefore have remined in employment for a further four weeks had her employment not been terminated when it was.

[26] I am satisfied that the Applicant was working 15 hours per week at the time her employment was terminated (the Respondent suggests 14 hours per week in its submissions on remedy but stated the Applicant was working 15 hours per week in its submissions on merit). The Applicant’s lost remuneration is therefore (15 x $23.68 x 4 =) $1,420.80 plus superannuation. Whilst the Applicant also claims annual leave and sick leave there is no basis to take any account of these, particularly sick leave which is not an entitlement that is paid out on termination of employment.

[27] I accept that the Applicant was working two days per week because she requested it. Whilst the Applicant has maintained she sought further hours it is apparent that she asked to resume work after her parental leave on the basis of two days per week. In making this request she did not put an end date on how long she wished to work reduced hours or over what period she may have sought to increase her hours. Whilst the Applicant submits that her husband’s parents were coming to Australia to assist in caring for her child there is no evidence that they were available and able to assist in the care of her child at the time her employment was terminated. Further, her texts to the Respondent in which the Applicant sought more hours were sent in the context of being offered only one shift in a particular week and her view that she should be offered more. For this reason I cannot conclude that she would have been working other than part-time two days per week in the four week period following the date of dismissal.

[28] I do not apply any discount given the Applicant’s relatively short period of employment. In this respect I have taken into account that the Applicant did not intend to leave her employment given its security and convenience of its location.

[29] I am satisfied that the Applicant has taken steps to mitigate her loss. I accept (and she gave evidence to this effect at the hearing of the merits of her application) that she has applied for a substantial number of positions.

[30] I have taken into account the lack of responsibility and contrition of the Applicant in relation to the two incidents in circumstances where I have found that the conduct did occur. In her submissions on remedy the Applicant has maintained that the situation was fabricated in some way by the Respondent to get rid of her and claims that she is the victim. This lack of acceptance of the decision of the Commission and lack of insight as to her conduct warrants a reduction of 50% on the amount of compensation. This reduces the compensation payable to $710.40 plus superannuation.

[31] I have further taken into account that the Applicant’s employment was terminated because of her misconduct which I have found to have occurred. I make no finding whether the misconduct was serious misconduct. I do however accept that in her conduct the Applicant did endanger the welfare of a child. It was the quick reaction of other child care workers (one to catch the child as it slipped from the high chair and the other to raise the railing on the cot) that prevented any actual harm. Given the misconduct and the Applicant’s failure to take any responsibility for that conduct I have decided to impose a further reduction of 50% on account of the misconduct.

[32] No submission was made that an order will affect the viability of the Respondent’s business. Further, I have not included any amount for shock or distress. The amount I intend to order does not exceed the compensation cap.

Conclusion

[33] For the reasons given above I have decided to award the Applicant an amount of $355.20 plus 9.5% superannuation as compensation. An order 9 to this effect will be issued with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR711595>

 1   [2019] FWC 4222.

 2   Ibid at [52].

 3   Ibid at [64].

 4   Applicant’s submissions dated 12 July 2019 at paragraph 2.

 5   Ibid at paragraph 7.

 6   Ibid at paragraph 9.

 7   Ibid at paragraph 10.

 8   [2019] FWC 4222 at [76].

 9   PR711623.