[2020] FWC 152

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Crystal Warnes
v
Burdett Property Holdings Pty Ltd as Trustee for the Burdett Property Trust T/A Australasian Body Corporate Management
(U2019/7460)

DEPUTY PRESIDENT LAKE

BRISBANE, 10 JANUARY 2020

Application for an unfair dismissal remedy

[1] This Decision concerns an application made for an unfair dismissal remedy under s. 394 of the Fair Work Act 2009 (the Act) by Miss Crystal Warnes (the Applicant) who alleges that she had been unfairly dismissed from her employment with Burdett Property Holdings Pty Ltd as Trustee for the Burdett Property Trust T/A Australasian Body Corporate Management (the Respondent). The Applicant seeks a remedy of compensation.

When can the Fair Work Commission (the Commission) order a remedy for unfair dismissal?

[2] Section 390 of the Act provides that the Commission may order a remedy if:

(a) the Commission is satisfied that the Applicant was protected from unfair dismissal at the time of being dismissed; and

(b) the Applicant has been unfairly dismissed.

[3] Both limbs must be satisfied. I am therefore required to consider whether the Applicant was protected from unfair dismissal at the time of being dismissed and, if I am satisfied that the Applicant was so protected, I must then consider whether the Applicant has been unfairly dismissed.

When is a person protected from unfair dismissal?

[4] Section 382 of the Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high-income threshold.

When has a person been unfairly dismissed?

[5] Section 385 of the Act provides that a person has been unfairly dismissed if the Commission is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(d) the dismissal was not a case of genuine redundancy.

[6] I must consider each of those matters.

Background

The Applicant’s employment and her termination

[7] The Applicant commenced her employment with the Respondent on 10 April 2017 (per her contract of employment). The Applicant’s employment was terminated by the Respondent on 24 June 2019.

[8] The Applicant commenced her employment as a Repairs/Maintenance Officer and Receptionist at a salary of $40,000.00 per annum exclusive of superannuation.

[9] On 21 November 2017, following the successful completion of the Applicant’s probation period, her salary would increase to $45,000.00 per annum exclusive of superannuation.

[10] The Applicant then received a promotion on 20 March 2018 to the position of Assistant to the Body Corporate Managers, and her salary was shortly thereafter increased to $50,000.00 per annum exclusive of superannuation on 11 June 2018, and she was ostensibly promoted to the position of Admin Support and Trainee Body Corporate Manager either shortly before this date or on this date.

[11] On 31 August 2018, she received a commendation letter for her “outstanding services” with the Respondent.

[12] The Applicant was dismissed from her employment on or about 24 June 2019. This was confirmed in a four-page termination letter to the Applicant which outlined the reasons why the Applicant was dismissed. The termination letter also purportedly recorded dates of meetings where the Applicant and Mr Chad Burdett had met and discussed certain behaviours of the Applicant. Allegedly, according to the letter, the Applicant was warned about those behaviours at four meetings; 5 March 2019, 6 June 2019 and 17 June 2019. The behaviours, it was said, included inappropriate mobile phone use at work, poor communication, lack of consistency in work and internet surfing among other matters.

[13] As at the date of the Applicant’s dismissal, her salary was $65,000.00 per annum exclusive of superannuation.

Background of the application upon it being lodged with the Commission

[14] The Applicant filed her unfair dismissal application on 8 July 2019.

[15] On 31 July 2019, the Respondent, via one of its Directors, one Mr Chad Burdett (Mr Burdett) wrote to the Unfair Dismissals Team (UDT) and requested that the application be dismissed. Mr Burdett further indicated that Respondent did not intend to participate in a conciliation conference as he was unavailable.

[16] A conciliation conference, which was listed on 5 August 2019, could not proceed, as Mr Burdett, on the Respondent’s behalf, did not attend.

[17] Prior to the file being allocated to me, Mr Burdett on behalf of the Respondent, on 10 October 2019, called the UDT and asked why the matter was going ahead, given the written material he had provided. Mr Burdett on behalf of the Respondent confirmed that he had provided a lot of information and said that he did not wish to participate in the matter any further as it was a waste of his time. The UDT advised Mr Burdett that a member of the Commission would shortly have carriage of the matter and it would be up to them how to progress the matter moving forward. Mr Burdett then said to the UDT that he wanted the matter “to go away”. Mr Burdett was then advised by the UDT that a member of the Commission could possibly decide the matter on the papers, and a request to do this must be made in writing. Mr Burdett then advised the UDT that he would send an email. Later, on 10 October 2019, Mr Burdett sent an email to the UDT requesting that the matter be dealt with on the papers:

“I would like to matter heard by the member based on the papers.”

[18] In response to Mr Burdett’s request to have the matter determined on the papers, the UDT sent the following response to Mr Burdett:

“Dear Mr Chaz Burdett

Application for Unfair Dismissal Remedy

Title: Warnes v Burdett Property Holdings Pty Ltd as Trustee for the Burdett Property Trust

Fair Work Commission File Number: U2019/7460

I refer to your request for the above matter to be determined on the papers.

Your request will be raised and dealt with by the Member who will be hearing the case.

The allocation of the case to this Member will take place shortly and your request will be dealt with then.

Please do not hesitate to contact the Fair Work Commission if you have any enquiries in relation to this matter.

Yours sincerely

Unfair Dismissal Case Management Team

CC:
Miss Crystal Warnes
xxxxxxxxxxxxxxxxxxxxxx
xxxxxxxxxxxxxxxxxxxxxxxxxxx”

[redacted for privacy reasons]

[19] Also, on 10 October 2019, the Applicant sent an email to the UDT asking what it meant for a matter to be heard on the papers.

Background on events after the file was allocated to me on 10 October 2019 to hearing on 4 November 2019

[20] On 10 October 2019, the file was allocated to me.

[21] On 21 October 2019, my associate wrote to the Applicant, explaining generally what a decision on the papers was:

“Dear Crystal,

I refer to the above matter.

In response to your question, a decision based ‘on the papers’ is done without a formal Hearing. The decision is purely made on the parties’ written submissions.

Alternatively, a formal Hearing is still available should this be the preferred method of proceeding with the matter.”

[22] On 28 October 2019, the Applicant wrote to me indicating her preference that the matter proceed to a formal hearing. I then wrote to the parties as follows at 11:27am on 1 November 2019:

“Dear parties

U2019/7460 - Warnes, Crystal v Burdett Property Holdings Pty Ltd as Trustee for the Burdett Property Trust T/A Australasian Body Corporate Management

Deputy President Lake refers to the above matter listed for hearing at 10am on 4 November 2019.

Given that the Applicant does not consent to the matter being heard on the papers, the Deputy President has determined that the matter will proceed to a formal hearing at the Commission.

Parties are expected to therefore be present at the Commission at the above time. For abundant clarity, this means that you are required to attend in-person on Monday at 10am.

The Deputy President will ask the parties their views on attempting to conciliate the matter prior it to going to a formal hearing at the start of the proceedings.

Should you have any queries, please do not hesitate to contact me on 07 3028 7872 or at [email protected]”

[23] The Respondent, via Mr Chaz Burdett, then responded to me as such at 11:34am on 1 November 2019:

“Hi [Associate]

In relation to the below, I will not be attending, as I am not available.

I have request a determine to be made on the papers submitted.

I have spent weeks preparing written submissions, whereby providing evidence in our defence.

Fair Work Commission, hold sufficient material to make a determination and therefore I believe my request is reasonable.

Regards”

[24] I then, through my associate, responded to the Respondent as follows at 11:57am on 1 November 2019:

“Dear Mr Burdett

I refer to the below request for the hearing listed to commence at 10.00am on Monday 4 November 2019 to be vacated, and for the matter to instead be determined on the material before the Commission.

The Commission is required to hold a hearing where there is a dispute of fact, and to afford procedural fairness to both parties by allowing each party to test the evidence of the other. The Deputy President will not accept evidence given on behalf of the Respondent in circumstances where that witness has not attended a hearing to attest to its truth, and to be available for cross examination by the Applicant. Similarly, you also have the ability to cross-examine the Applicant on evidence she has provided.

Your request for the matter to be determined on the papers is denied and the hearing will proceed as listed.

Please be advised that if the Respondent does not attend the hearing its evidence will not be accepted. Further, the Applicant’s evidence may be accepted as uncontested and a decision made that is adverse to the Respondent’s interest without further notice.

Regards”

[25] Via return email at 12:00pm on 1 November 2019, the Respondent then requested that he speak to my associate’s manager. I then instructed my associate to respond to the Respondent as such (at 12:17pm on 1 November 2019):

“Dear Mr Burdett,

I refer to your correspondence below.

The Deputy President instructed me to write to you in this manner.

It is consistent with how all unfair dismissal applications are conducted in the Commission.

There is no automatic right for a matter to be heard on the papers. In fact, decisions on the papers in the unfair dismissal jurisdiction are generally only reserved for jurisdictional matters. To reiterate, as there is a factual dispute in this matter, and a decision will need to be made on the merits, a hearing is required.

There will be no further correspondence or consideration on this issue.

In future, please ensure that the Applicant is included in all correspondence you have with the Commission.

Should there be any other matters you wish to raise, please do not hesitate to contact chambers.

Regards”

[26] The Respondent then allegedly tried to call my associate, but my associate was not available. In any event, the Respondent then outlined his position to me regarding the matter being determined on the papers in an email sent to me at 3:06pm on 1 November 2019:

Hi [Associate]

In accordance with the attached letter dated 10 October 2019, three (3) weeks have passed following my request to have the matter determined on the papers.

Since I was not contacted regarding my request to have the matter determined on the papers, I contact FWC yesterday, raising a concern that I had not been responded regarding my request to have the matter determined on the papers (email attached).

I received your email today at 10.45am, I called the number provided at least 10 times over a period of 3 hours today, only to receive a message service stating ‘I have called Michelle and to leave a voice message’, I have left two voice messages requesting a returned phone call to discuss this matter.

I have not been provided with details as to why the decision will not be determined on the papers, only a statement indciating its based on “dispute of fact” and in your following email “factual dispute”.

Therefore please provide detail on how you have determined factual dispute is relevant.

From what I have read the applicant has contradicted herself regarding ‘factual dispute’ whereby, acknowledged the employer raised unsatisfactory performance concerns, acknowledged she was performing unsatisfactory, and in a later statement has contradicts herself by stating there were no prior discussions regarding unsatisfactory performance.

Furthermore;

• I have provided clear evidence that the applicant was unable to perform satisfactory in the role.

• I have provided evidence that the applicant was communicated to on a number of occasions prior to dismissal regarding her inability to perform satisfactory in the role.

• I have provided evidence that over a period of 6 months the applicant received verbal and written notice that she has not improved in her performance in the role.

• The applicant has confirmed in her submissions that I had addressed concerns of her unsatisfactory performance and the applicant confirmed her performance was unsatisfactory.

• I completed the Small Business Fair Dismissal Code Checklist, and met all the required steps prior to dismissing of the applicant, including 8a, which states – “did you warn the employee (either verbal or in writing) that the employee was not doing their job and would have to improve their conduct or performance, or otherwise be dismissed.” In which I answered YES.

Therefore, a hearing should not be held on the basis there are no factual disputes as the applicant has contradicted herself, and therefore I reiterate, to have the matter determined on the papers.

My experience with FWC in these four (4) months, specifically with xxxxxxxx xxxxxxxxxxxxxxxxxxxxxx has resulted extreme stress and anxiety levels, I feel I have been bullied, intimidated and received poor communication. Therefore, wish to lodge a formal complaint and ask that you direct me to the right person at FWC today.”

[redacted for privacy]

[27] At 3:34pm on 1 November 2019, I then wrote to the Respondent, re-confirming that I would not be deciding the matter on the papers and the matter would be proceeding to a hearing on Monday.

“Dear Mr Burdett,

I refer to your correspondence to chambers below.

The Deputy President has considered this matter and the hearing will proceed as scheduled at 10.00am on Monday 4 November 2019.

Any complaints regarding the handling of a matter before the Commission should be sent in writing to [email protected].

Should you have any questions or queries regarding the above, please contact chambers.”

[emphasis added]

[28] The Respondent did not attend the hearing that was listed for 4 November 2019. The Applicant attended and swore in her witness statement and other evidence. I asked the Applicant questions of her witness statement and evidence at the hearing on 4 November 2019.

Background on events following hearing on 4 November 2019 to hearing on 6 December 2019

[29] Following the Respondent’s non-attendance at the hearing of 4 November 2019, I wrote to the Respondent as follows at 2:21pm on 4 November 2019:

“Dear Mr Burdett

U2019/7460 - Warnes, Crystal v Burdett Property Holdings Pty Ltd as Trustee for the Burdett Property Trust T/A Australasian Body Corporate Management

Deputy President Lake refers to the above matter and notes your non-attendance at the hearing listed for this morning (Monday, 4 November 2019). You have previously not attended the conciliation conference in the above matter.

The hearing proceeded this morning by way of a determinative conference.

The Deputy President confirms that on four occasions on Friday, 1 November 2019 you were informed, in writing, of the requirement to attend the hearing listed for this morning. You provided no acceptable reason to the Commission as to why you did not want to attend this morning or alternatively submit an adjournment request, other than indicating that you had a preference to have the matter determined “on the papers” and requested as such. The request to have the matter determined “on the papers” was explicitly denied on at least two occasions in writing and, as you were advised, is generally not available in this jurisdiction.

Based on your continued non-attendances, it appears that you do not intend to further participate in this matter.

The Deputy President notes your original request to have the matter determined “on the papers”. The Deputy President is now minded to make a decision based upon your submissions and your material (with due weight given to it not being sworn evidence).

Should you wish for the Deputy President to undertake a different course of action, please advise chambers by 12pm on Friday, 8 November 2019.

Regards”

[30] Later that same day, at 4:38pm on 4 November 2019, the Respondent’s father, one Mr Stephen (Steve) Burdett emailed my associate back as follows:

“To: [Associate]

Associate to Deputy President Lake.

In response to your below email.

We have completed all your forms as requested several times and addressed all matters as required as a small business giving all necessary and more information and ticking all 8 required boxes correctly.

We have answered every question asked of us and informed Crystal Warnes over a 4-5 month period in detail (as per previous emails supplied) of her work performance in great detail.

We have explained on many occasions we will not attend any meetings as this is not required if we choose not to, we do not agree with a verbal discussion where you can bully us behind closed doors face to face (as you have shown in the past) and have continuously said all correspondence will be in writing.

We also advised we are taking this matter to a higher level and making a formal complaint on the harassment and bulling of this matter.

If all our correspondence was read correctly this matter would have been closed off months ago.

Our next avenue after the complaints department will be the Government Ombudsman.

This matter has not been dealt with correctly and a should have been overseen by your General Manager/Department Head.

Thank You.

Steve Burdett.”

[31] The following day, at 10:03am on 5 November 2019, through my associate, I wrote back to the Respondent, Mr Steve Burdett (Mr Chaz Burdett’s father), as follows:

“Dear Mr Burdett

Thank you for your email.

Notwithstanding your complaint there remains an unfair dismissal matter on foot that must be determined by the Deputy President.

It is of paramount concern to the Deputy President, as it is to all Commission members, that both applicants and respondents are afforded procedural fairness in unfair dismissal matters. This case is no exception.

As you are aware, the unfair dismissal matter proceeded yesterday at the Commission by way of a determinative conference. At yesterday’s determinative conference, the Applicant provided sworn evidence – both oral and written – and also provided further submissions.

The Deputy President has previously advised you that if you are unwilling to engage in the unfair dismissal process, then the Deputy President is minded to determine the matter on your written submissions and material. It has already been brought to your attention that should you intend to take this course of action, due weight will be put on your material, given that it is yet to be sworn in as evidence.

Should you intend to engage in the process with the Commission, please advise the chambers of Deputy President Lake by 12pm on Friday, 8 November 2019.

If you do not intend to engage in the process, or chambers receive a response by the above time, a decision will made on the material currently before the Commission.

Regards”

[32] At or about 10:45am on 5 November 2019, Mr Chaz Burdett called my chambers and had a conversation with my associate. During that conversation, which I overheard, my associate explained to Mr Burdett the nature of my email to his father that I had sent earlier that day. My associate in particular explained that should the Respondent not engage with the Commission, I may reserve a decision on the material that is before me, and that would, at this stage, only be the Applicant’s. On that call, Mr Burdett confirmed that, given the time he had spent on preparing his material, he wished for his material to be considered. My associate then said words to the effect of: “okay, subject to the transcript being released [from the hearing held on 4 November 2019], I will shortly send you an email to confirm the Deputy President’s [my] availability to hear his evidence at a time in early December.”

[33] At 11:13am on 5 November 2019, via my associate, I sent the following email to the parties:

“Dear parties

By way of update, and following a conversation that [the associate] had with Mr Chaz Burdett this morning, the Respondent has now indicated its intention to engage in the unfair dismissal process, but has requested that it attend the Commission to swear in its evidence and provide further submissions, if it wishes, following the receipt of the transcript from yesterday’s proceedings.

The Deputy President is amenable to this course of action.

The transcript is due to be received on Tuesday, 12 November 2019 or Wednesday, 13 November 2019.

Following receipt of the transcript, [the associate] will liaise with the parties on a date for Mr Burnett to attend the Commission (subject to the Deputy President’s availability) to swear in his evidence and to provide further submissions, if he wishes. The Applicant will be permitted an opportunity to cross-examine Mr Burdett on his evidence, and the Deputy President may ask further questions of Mr Burdett when Mr Burdett attends the Commission.

Should you have any questions regarding the contents of this email, please do not hesitate to contact chambers.

Regards”

[34] The transcript of the hearing of 4 November 2019 was duly received on 7 November 2019. Following receipt of the transcript, via my associate, at or about 3:37pm on 7 November 2019, I wrote to the parties as follows (forwarding a copy of the transcript):

“Dear parties

Given the transcript has been released (attached in the previous email), we await the Respondent to confirm a time that they can provide their evidence at the Commission.

The Deputy President is not available at all next week, so it will have to be the following week and onwards.

The Applicant will have an opportunity to cross-examine the Respondent on its evidence.

Regards”

[35] At 4:01pm on 18 November 2019, via my associate, I wrote to the parties indicating that I intended to re-list the matter for 3:30pm on 29 November 2019:

“Dear parties

U2019/7460 - Warnes v Burdett Property Holdings Pty Ltd as Trustee for the Burdett Property Trust

The Deputy President intends to re-list the above matter for 3:30pm on Friday 29 November 2019.

Should there be no objections to this time, a notice of listing will be sent to parties shortly.

Regards”

[36] At 4:10pm on 18 November 2019, Mr Steve Burdett wrote back to me as follows:

“Hi [Associate]

I’m in Bundaberg with my other business from Sunday till Thursday.

I already have a prearranged meeting with a Developer at Burleigh Heads later Friday afternoon.

I’m travelling from the Gold Coast so that late in the afternoon does not work for me then I must return back to the Gold Coast. 11.00am Friday would work for me.

Regards.
Steve Burdett.”

[37] After consulting with my associate, I then listed the matter for 11:15am on 29 November 2019, shortly after receiving Mr Steve Burdett’s email.

[38] At 4:47pm on 18 November 2019, Mr Chaz Burdett sent the following email to me:

“Hi [Associate]

In response to your email received today at 4.01pm, I have an objection to the proposed date.

Please note that sending an email asking if there is an objection to the proposed date and then sending a second email confirming the date/time 14 minutes later, does not provide sufficient time for a response.

Due to work commitments, preschedule meetings and booked annual leave, the earliest available dates I can attend is Thursday 27 February 2020 or Friday 28 February 2020, during business hours.

Regards”

[39] Mr Steve Burdett then complained about a premature listing to me and also to the Complaints Department of the Commission.

[40] It appears that both myself and my associate thought that Mr Steve Burdett was responding for the Respondent generally. However, Mr Steve Burdett made it clear that he was only responding on behalf of himself, and not the Respondent generally. I then, though my associate, wrote back to the parties the following day, at 10:19am on 19 November 2019 as follows:

“Dear parties

My apologies for listing the hearing without hearing back from Mr Chaz Burdett. I incorrectly thought that Mr Steve Burdett had indicated availability for them both, when he had not.

The matter will be re-listed.

With respect to the dates that Mr Chaz Burdett has provided these are too far out to hold the matter over for. The matter must be listed and heard in 2019. This is consistent with s. 381(1)(b) of the Fair Work Act 2009, which outline the objects of the unfair dismissal framework which prescribes that the matter must be dealt with expeditiously.

I advise availability for the Deputy President to hear the Respondent’s evidence on 6 December 2019, 9 December 2019 or 13 December 2019 at any time. Please advise your availability for any of these dates.

Regards”

[41] At 10:36am on 19 November 2019, Mr Steve Burdett, on behalf of the Respondent, then wrote to me as follows:

To: [Associate]

Speaking with our lawyers on the way this whole process has evolved I personally will not hold any discussions or meetings with WFC till we have had full discussions with the Complaints department of FWC.

I have sent them several email with no response, I assume they are overwhelmed with complaints and it will only be a matter of time before they can respond to our emails.

This matter must be put on hold till the complaints process is completed so we can all move forward.

As previously pointed out several times: We have carried out the correct procedure required by the Fair Work Ombudsman.

https://www.fairwork.gov.au

Thank you.
Steve.”

[42] This was clearly not acceptable. A matter cannot be held up because of a complaint. Through my associate, I then wrote to Mr Steve Burdett of Respondent as follows at 11:34am on 19 November 2019 as follows:

“Dear Mr S. Burdett

The Deputy President is in receipt of your most recent correspondence in which you advise that you have made complaints to the Fair Work Commission. The Commission may continue to deal with a matter regardless of whether a complaint is made and intends to do so.

If an application is made to the Commission, the Commission must determine the matter according to law and conduct proceedings in a matter that is expeditious and fair.

To date, a number of opportunities to be heard have been extended to the Respondent.

The Deputy President’s view is that a final opportunity will be granted to the Respondent to be heard. As previously indicated, the Deputy President intends to list the application for hearing and proposes to do so on either 6 December, 9 December 2019 or 13 December.

If the Respondent wishes to indicate a preference of these dates the Respondent may do so by close of business today. In the absence of any preference, the Deputy President will list the matter on one of these dates.

If the Respondent wishes to take up the opportunity to be heard it may do so by attending the hearing.

Any witnesses in which the Respondent intends to rely on should also be made available to give their evidence before the Commission and be available for cross-examination.

Following the hearing, the Deputy President intends to determine the application on the basis of the material properly before the Commission at that time, which may involve determining the matter in the absence of submissions or evidence from the Respondent.

Regards”

[43] At 12:15pm on 19 November 2019, Mr Steve Burdett then responded to me as such:

“To: [Associate]

Chaz yesterday set out clear reasons as to why leading up to the Xmas Holiday period he is not available until the dates he suggested.

You are being very one sided in your decision on meeting dates that you are aware cannot be met by us and not acceptable to our heavy daily work schedule in the private sector.

All your previous dates were thrown upon us at the last minute in your emails as you are very much aware. (Yesterday being a clear example).

Chaz is having email discussions with the Complaints Department as we speak and I’m yet to be contacted.

We have tried very hard to work with you on your aggressive approach, while supplying all completed documentation you required on all occasions filling out the same or similar forms repeatable times showing we have complied with Fair Work Ombudsman website as required for Small Business. (Which you have totally ignored).

We all know you can really work with Chaz’s dates if you so choose.

It looks to me you just want to cut this matter short, just to wind it up before the end of year, we want this matter dealt with correctly if you intend to pursue not just half-heartedly, this matter is extremely important to us as it should have never been carried forward to this point as you would be fully aware.

Regards,”

[44] Given the Respondent did not indicate a preference at any time (emphasis added) on either 6 December 2019, 13 December 2019, by close of business on 19 November 2019, I then listed, on 20 November 2019, as I put the Respondent on notice that I would, a hearing for 12:00pm on 6 December 2019.

[45] Following this notice of listing being sent to the parties, at 9:38am on 22 November 2019, Mr Chaz Burdett sent an email of objection to this listing time and re-stated his unavailability to attend.

[46] On 5 December 2019, the day before the scheduled hearing on 6 December 2019, Mr Chaz Burdett included my chambers in a long email thread of correspondence that he was having with the chambers of President Ross, complaining about me and my associate. In that correspondence, by way of an email at 12:02pm on 5 December 2019, Mr Burdett asked me a series of questions as follows:

“…

To Whom This May Concern/Lake

Following the distribution of the attached emails dated 18 November 2019 & 22 November 2019, no response from your office has been received regarding my availability to attend a hearing.

As per the attached emails, due to my work commitments, preschedule meetings and booked annual leave, the earliest available dates I can attend are; either, Thursday 27 February 2020 or Friday 28 February 2020, during business hours.

This is my third attempt to communicate my availability and I await a response.

Lastly, considering my availability and time spent completing the submitted papers, why can’t I sign a statutory declaration to swear in the papers, therefore enabling the matter determined on the papers?

Regards”

[47] At 11:47pm on 5 December 2019, through my associate, I responded to Mr Burdett outlining a chronology of the correspondence to date and putting him on notice (again) that should he not attend the hearing on the following day (6 December 2019) his evidence will not be sworn in the consideration, and that due weight will be put on the evidence given it would not be sworn. I said as follows:

“Dear Mr Burdett

Deputy President Lake confirms that there is a hearing listed for tomorrow (commencing 10am on 6 December 2019) for you to swear in your evidence and this hearing will proceed.

This opportunity has been provided to you on the basis that the Deputy President wanted to afford you procedural fairness to have your evidence sworn in, given your non-attendance at the hearing listed on 4 November 2019.

Your request for the hearing to be delayed until 27 or 28 February 2020 was refused by the Deputy President. The reasons for this refusal have already been provided to you in my email to you on 19 November 2019 where I stated, on behalf of the Deputy President, that:

“With respect to the dates that Mr Chaz Burdett has provided [27 or 28 February 2020] these are too far out to hold the matter over for. The matter must be listed and heard in 2019. This is consistent with s. 381(1)(b) of the Fair Work Act 2009, which outline the objects of the unfair dismissal framework which prescribes that the matter must be dealt with expeditiously.”

On behalf of the Deputy President, in that same email of 19 November 2019, I then advised you of 3 days that the Deputy President was available to hear your evidence, at any time. I advised you as follows:

“I advise availability for the Deputy President to hear the Respondent’s evidence on 6 December 2019, 9 December 2019 or 13 December 2019 at any time. Please advise your availability for any of these dates.”

Your father, Mr Steve Burdett, then responded as such on 19 November 2019:

“Dear [associate]

I have sent them several email with no response, I assume they are overwhelmed with complaints and it will only be a matter of time before they can respond to our emails.

This matter must be put on hold till the complaints process is completed so we can all move forward.

As previously pointed out several times: We have carried out the correct procedure required by the Fair Work Ombudsman.

https://www.fairwork.gov.au

Thank you.

Steve.”

Later on the 19 November 2019, [my associate] responded to your father as such:

“Dear Mr S. Burdett

If an application is made to the Commission, the Commission must determine the matter according to law and conduct proceedings in a matter that is expeditious and fair.

To date, a number of opportunities to be heard have been extended to the Respondent.

If the Respondent wishes to indicate a preference of these dates the Respondent may do so by close of business today. In the absence of any preference, the Deputy President will list the matter on one of these dates.

If the Respondent wishes to take up the opportunity to be heard it may do so by attending the hearing.

Any witnesses in which the Respondent intends to rely on should also be made available to give their evidence before the Commission and be available for cross-examination.

Later still on 19 November 2019, your father responded to me as such:

“To: [Associate].

Chaz yesterday set out clear reasons as to why leading up to the Xmas Holiday period he is not available until the dates he suggested.

You are being very one sided in your decision on meeting dates that you are aware cannot be met by us and not acceptable to our heavy daily work schedule in the private sector.

All your previous dates were thrown upon us at the last minute in your emails as you are very much aware. (Yesterday being a clear example).

Chaz is having email discussions with the Complaints Department as we speak and I’m yet to be contacted.

We all know you can really work with Chaz’s dates if you so choose.

Given that you or your father did not respond to the request of the Deputy President to advise your availability on either 6, 9 or 13 of December 2019, at any time, to afford you an opportunity to have your evidence heard, the Deputy President, as he put you on notice he would, decided to list the matter, without a consideration of your preference, on 6 December 2019.

Please be put on notice for the final time that should you not attend this hearing, then your evidence will not be sworn evidence. After tomorrow’s hearing the Deputy President will reserve his decision. The Deputy President puts you on notice that, should you not attend the hearing and swear in your evidence, due weight will be put on your evidence in any decision that he writes, given it will not be sworn evidence.

Regards”

[emphasis added]

[48] Mr Chaz Burdett then wrote back to me at 12:53pm on 5 December 2019 as follows:

“Hi [Associate]

Once again as per the attached emails, due to my work commitments, preschedule meetings and booked annual leave, the earliest available dates I can attend are; either, Thursday 27 February 2020 or Friday 28 February 2020, during business hours.

This is my fourth attempt to communicate my availability.

Regards”

[49] At 1:13pm on 5 December 2019, through my associate, I wrote back to Mr Chaz Burdett as follows:

“Dear Mr Burdett

As you have already been advised, the hearing will proceed tomorrow and a decision will be reserved after the conclusion of the hearing.

Regarding why the matter cannot be determined on the papers, these reasons have already been provided to you.

Regards”

[50] At 1:27pm on 5 December 2019, Mr Chaz Burdett responded to me as follows:

“Hi [Associate]

This is an unfair decision and your office has refused to take into account my availability.

This is my fifth attempt to communicate my availability.

[51] My associate then, in an email sent to the parties at 1:45pm on 5 December 2019 clarified that the hearing would commence at 12:00pm and not 10:00am as he had had stated in a previous email to parties on my behalf. Mr Chaz Burdett then stated again in an email to me at 1:47pm on 5 December 2019 as follows:

“Hi [Associate]

This is an unfair decision and your office has refused to take into account my availability.

This is my sixth attempt to communicate my availability.

Regards”

[52] I instucted my associate to not respond to this email given that I had already addressed the points made by Mr Chaz Burdett and he was aware that the hearing would be proceeding at 12:00pm on 6 December 2019.

The hearing on 6 December 2019

[53] The hearing proceeded as listed on 6 December 2019. The Applicant attended. The Respondent did not attend. The following is the full transcript of the hearing on 6 December 2019:

THE DEPUTY PRESIDENT: Thank you. It's a very quiet room, isn't it?

MS WARNES: Yes. Sorry I was late.

THE DEPUTY PRESIDENT: That's okay. I'll take appearances first, which is yourself, so just state for the record who you are.

MS C WARNES: Crystal Warnes.

THE DEPUTY PRESIDENT: Thank you very much. I note that we don't have the respondent here.

The purpose of today's hearing is to afford procedural fairness to the respondent, and that is to enable Chas Burdett to swear in his evidence and testimony. Unfortunately he's not here, and he didn't attend the hearing on 4 November. Despite being directed to do so and on several occasions reminded to be here, he hasn't attended.

Correspondence has gone back and forth between the respondent and the Fair Work Commission and his father, who are both directors of the same company, and Chas (sic) Burdett indicated that his earliest availability was 27 and 28 February.

He was advised that the Fair Work Commission intends to hear this matter in 2019 in accordance with section 381(b), which establishes the object of the unfair dismissal is that there be quick and expeditious outcomes, and also bearing in mind section 381(2), which is to ensure a fair go all round to both parties.

It appears that he hasn't attended despite being requested a number of times to do so and so I'll now have to determine the matter on the materials that I've been provided, so I'll do so.

So the matter is now adjourned. Thank you very much.

MS WARNES: Thank you.

The Respondent’s conduct

[54] Before going to the material before me, I wish to make some brief remarks about the Respondent’s conduct in this matter.

[55] In previous decisions, I have been critical of applicants who have failed to prosecute their claims. 1 It is only fair therefore that I am equally critical of recalcitrant respondents.

[56] Mr Chaz Burdett and Mr Steve Burdett, the Directors of the Respondent, in their approach to this handling claim, have sought to obfuscate the process at every turn. Rather than facing the allegations made head on by the Applicant, they have sought to duck, weave and hide.

[57] They did not adhere to my procedural decisions that the matter would be determined by hearing. They did not turn up to the hearings. Instead of turning up they complained to every department they could. Rather than spending all that time complaining, they should have been defending Ms Warnes’ application.

[58] As can be seen in the extensive correspondence, I put both Mr Chaz Burdett and Mr Steve Burdett on notice on several occasions that if they did not turn up to a hearing and swear in their evidence, I could only consider the matter on the material before me (i.e. the Applicant’s). My associate also advised them of this. My associate and I advised them that this would likely be adverse to their interests. I even listed a second hearing just for them to swear in their evidence (to be abundantly fair to the Respondent), but they did not attend. Ultimately, they did not heed my advice. The result is that they have no sworn evidence in this matter. The Respondent did not elect to contest or cross-examine the evidence of Ms Warnes.

[59] The Commission is a place to be taken seriously. When allegations are brought against an employer Respondent, they must take those matters earnestly. To not comply is an act of foolishness and is utterly contemptuous of this institution which, through its many iterations, has managed the relationships between Australian employees and employers for over 100 years.

The material before me

[60] Without the Respondent fronting up on either 4 November 2019 or 6 December 2019 to swear to (and answer questions as to) their evidence, I am left with the following material in which to consider whether the Applicant has been unfairly dismissed:

• the Applicant’s sworn oral testimony at the hearing of 4 November 2019;

• the Applicant’s statement of evidence;

• the termination letter dated 24 June 2019;

• the Applicant’s employment agreement;

• the letters of praise provided to the Applicant by Chaz Burdett. 2

[61] This, I have determined as the evidence for me to make my consideration, as they are the documents that the Applicant presented swore in as evidence following the Applicant being affirmed at the Commission. 3

[62] I wish to explicitly make it clear that the Respondent’s evidence was not sworn, but that I did make note that the Respondent would enter their evidence, but that for the purposes of the hearing we would note [that the Respondent had filed evidence]. 4 This ultimate swearing in of the Respondent’s evidence did not occur as can be seen from the chronology which I have outlined.

[63] Ultimately, therefore, the evidence of the Applicant is unchallenged and is therefore taken as fact.

The Applicant’s evidence

[64] As outlined in the Applicant’s statement of evidence, the Applicant’s version of events is as follows:

“I will be giving evidence that (not in chronological order):

• On 10 April 2017 I began my employment at Australasian Body Corporate Management as a repairs and maintenance officer and receptionist.

• I was employed on a full-time basis, working Monday to Friday, 8:30am to 5:00pm.

• My salary whilst employed in this role was $45,000.00 plus superannuation.

• I was trained in this role by a previous employee, Laura Butcher.

• Throughout my employment I was praised regularly by both Chaz and Steve Burdett and was provided with multiple letters of praise throughout my employment (see attachments, letters dated 21 November 2017, 20 March 2018, 11 June 2018, 31 August 2018).

• Throughout my employment I received a number of promotions and corresponding pay rises. My annual salary at the end of my employment was $65,000.00 plus superannuation.

• I note also that throughout my employment there was a high turnover in staff members. Staff members who either resigned or were terminated throughout my employment include, but are not limited to:

• Laura Butcher

• Maddison Lapworth

• Melanie Doyle

• Sandi Eisentrager

• Zoran Pavlovski

• Courtney McKee

• Destiny Peroumal

• Roger Steinke

• Jonathan De La Cruz

• Janine Brandon

• Alina Stefirta

• Aleena Burdett

• Countless numbers of staff members employed as receptionists

• In late 2018, Chaz Burdett began conducting weekly training sessions with myself and other team members. These training sessions were designed to assist in improving performance issued Chaz had identified with other employees (Zoran Pavlovski, Courtney McKee). I know for a fact that these two employees were underperforming, and this was the reason why Chaz began the training sessions - Chaz often had conversations with me advising he was not happy with their performance. All three (3) Body Corporate Managers (Zoran, Courtney and I) were required to produce a 'PowerPoint' slideshow each week, which we then presented to the other staff members. Some PowerPoint slideshows created by me provided training to other staff members on the processes involved in insurance claims and renewals and filling a casual vacancy. I do believe there was one more slideshow created by me however do not recall which one this was. No corrections were ever made by Chaz to my presentations, proving my knowledge of these topics met Chaz's expectations.

• It is my recollection that the 'performance issues' identified by Chaz were first discussed with me in March 2019. Up until this point, Chaz had no issues with my performance at work and ability to conduct various tasks, including producing general correspondence, formulating meeting agendas and minutes, completing insurance renewals and claims, chairing meetings, etc.

• At no point during my employment did Chaz provide specific advice on how I could improve. When I queried how I could improve, Chaz simply said to me I needed to ‘try harder’. When I told Chaz I was already trying my best, he repeated himself and told me to ‘try harder’.

• During a conversation with Chaz (date unknown) regarding my performance, I stated that I was confused as I was completing all tasks and overall completing my job exactly the same as I had when I first became a Body Corporate Manager, and that Chaz had no issues with my performance up until now. Chaz’s response to this was that my performance was good enough back then, but it is not anymore.

• In the termination letter dated 24 June 2019, Chaz Burdett claims that on 5 March 2019 I was spoken to regarding:

• Mobile phone usage;

• Non-communication;

• Lack of consistency;

• Internet surfing;

• Communication;

• Staff Feedback; and

• Lack of consistency (included twice).

I note that this claim is false and therefore Chaz has lied in his termination letter and subsequent formal documents.

• I confirm that Chaz Burdett spoke with me regarding the operation of my mobile phone during work hours; this feedback was taken on board and my phone was then placed within my handbag as instructed by Chaz.

• Chaz claims that I was spoken to regarding non-communication and claims I was advised that feedback had been received from staff that I do not acknowledge them when they say hello each morning or good-bye each evening. This conversation did not occur and at no point during my employment did Chaz raise this issue with me. This statement is a lie. Had this have been raised with me, I would have made a conscious effort to improve.

• I confirm Chaz Burdett spoke with me regarding the preparation of documents. Chaz has provided an example of this, being the Merrimac Heights Committee Meeting minutes, whereby a number of errors were identified. I note that this example is extreme and the volume of errors made in other documents produced by me are not equivalent to the number of errors made in this particular document. Merrimac Heights is a large and very complicated scheme, with Committee Meetings which ran for two to three hours in length, requiring very specific Minutes. Throughout my employment, countless numbers of documents were provided to Chaz for review prior to distribution, with most of them requiring minimal, or no, changes. I believe that using this example as a reflection of my work performance is unfair on that basis.

• Chaz claims that I was spoken to regarding communication and again claims I was advised that feedback had been received from staff that I do not acknowledge them when they say hello each morning or good-bye each evening. This conversation did not occur and at no point during my employment did Chaz raise this issue with me. This statement is a lie. Had this have been raised with me, I would have made a conscious effort to improve.

• Chaz claims that I was spoken to and advised that staff members have told Chaz it is uncomfortable to be around me. . This conversation did not occur and at no point during my employment did Chaz raise this issue with me. This statement is a lie. As outlined in my initial application, I consider myself to have had great working and personal relationships with various staff members. Had this have been raised with me, I would have made a conscious effort to improve.

• Chaz claims that I was spoken to regarding the production of various documents and items of correspondence and claims that all items of correspondence submitted for review between January and June 2019 all contained a high volume of errors. I do not consider this claim to be accurate. As aforementioned, throughout my employment, countless numbers of documents were provided to Chaz for review prior to distribution, with most of them requiring minimal, or no, changes. I recall three (3) AGM agendas which were provided to Chaz for review in June 2019, which required minimal changes before they were approved for distribution to clients.

• In the termination letter dated 24 June 2019, Chaz Burdett claims that on 13 June 2019 I was spoken to regarding:

• Mobile phone usage;

• Internet surfing;

• Communication; and

• Lack of consistency.

I note that this claim is false and therefore Chaz has lied in his termination letter and subsequent formal documents.

• I confirm that Chaz Burdett spoke with me previously regarding the operation of my mobile phone during work hours; this feedback was taken on board and my phone was then placed within my handbag as instructed by Chaz. I do not recall this conversation occurring again in June.

• Chaz claims that I was spoken to regarding internet surfing and claims I was advised that I had been observed using my office PC to surf the internet. This conversation did not occur and at no point during my employment did Chaz raise this issue with me. This statement is a lie. Had this have been raised with me, I would have made a conscious effort to improve. Chaz further states "...following prior written and verbal instructions.". I reiterate that no verbal instructions were ever communicated to me and further confirm that at no point during my employment did Chaz provide this to me in writing. This statement therefore is also a lie.

• Chaz claims that I was spoken to regarding communication again. This conversation did not occur and at no point during my employment did Chaz raise this issue with me. This statement is a lie. Had this have been raised with me, I would have made a conscious effort to improve. Chaz further states "...following prior written and verbal instructions.". I reiterate that no verbal instructions were ever communicated to me and further confirm that at no point during my employment did Chaz provide this to me in writing. This statement therefore is also a lie.

• Chaz Burdett advises he spoke with me regarding the preparation of documents. Chaz has provided an example of this, being the Merrimac Heights Committee Meeting minutes, whereby a number of errors were identified. I reiterate that this example is extreme and the volume of errors made in other documents produced by me are not equivalent to the number of errors made in this particular document. Merrimac Heights is a large and very complicated scheme, with Committee Meetings which ran for two to three hours in length, requiring very specific Minutes. Throughout my employment, countless numbers of documents were provided to Chaz for review prior to distribution, with most of them requiring minimal, or no, changes. I believe that using this example as a reflection of my work performance is unfair on that basis.

• In the termination letter dated 24 June 2019, Chaz Burdett claims that on 17 June 2019 I was spoken to regarding:

• Mobile phone usage;

• Internet surfing;

• Communication;

• Staff feedback; and

• Lack of consistency.

I note that this claim is false and therefore Chaz has lied in his termination letter and subsequent formal documents.

• Chaz claims that I was spoken to regarding internet surfing (again) and claims I was advised that I had been observed using my office PC to surf the internet. This conversation did not occur and at no point during my employment did Chaz raise this issue with me. This statement is a lie. Had this have been raised with me, I would have made a conscious effort to improve. Chaz further states "...following prior written and verbal instructions.". I reiterate that no verbal instructions were ever communicated to me and further confirm that at no point during my employment did Chaz provide this to me in writing. This statement therefore is also a lie.

• Chaz advises on 17 June 2019, after the abovementioned conversation was held, "The applicant (the employee) immediately walked out of my office and left the office altogether.". I confirm that on this day, Chaz had called me into his office at 5.00 pm and advised I was not permitted to leave until two (2) emails left in my inbox had been dealt with. I explained to Chaz that I was unable to stay late today, as I had a scheduled doctor’s appointment which staying past 5.00pm would make me late for. Chaz was unhappy with this and got angry at me, advising I was not allowed to leave until these emails had been dealt with. These emails were not urgent, and in my opinion could have waited and have been dealt with the following day. This created an argument with Chaz. Chaz then advised me to 'just go', so I left the office to attend my appointment.

• On 17 June 2019 I attended an appointment with my doctor and obtained a medical certificate, which was emailed to Chaz on the same day, advising I was unwell, and my doctor had recommended I stay home for the remainder of the week to rest. This was sick leave that I was entitled to and was taken due to a deterioration in my mental health throughout the weeks prior, directly related to stress endured at work. I did not return to work until 24 June 2019.

• On 24 June 2019, I arrived at the office at approximately 8:30 am, and began to walk up the stairs to my desk with a colleague of mine. Chaz stopped me at the top of the stairs and asked me to follow him. I was led into the board room where Chaz sat me down and advised he and Steve Burdett (CEO) had agreed to terminate my employment. At no point during this conversation did Chaz confirm the reasons behind my termination. Chaz however claims that he went into detail and listed the reasons behind my termination. Chaz aslo did not give me an opportunity to query these reasons. I was unaware I had the opportunity to query this, and believe it is the responsibility of the employer to make me aware of these rights. I confirm I did say to Chaz "that's fine, I saw it coming". I asked Chaz if I could go upstairs and collect my personal belongings, to which Chaz advised he had already collated them. I was taken to the Minute book room, collected my belongings, and left the office.

• It is implied on page 6 of the Form F3 that Chaz introduced a checking system solely based on my 'inability' to produce satisfactory items of correspondence. I confirm that throughout my entire employment with this firm, all Body Corporate Managers were required to provide Chaz with draft copies of their agendas, minutes, and other documents. It is unfair that Chaz would imply this system was implemented solely because of me.

• Chaz further advises on page 6 of the Form F3 that the employer was required to prepare and distribute 27 letters to various Owners and Committee Members at Merrimac Heights. This statement is a lie. The 27 letters addressed to various Owners and Committee Members at Merrimac Heights were all created by me. They were not distributed by me, however, as the Minutes of the meeting had been sent to the Committee Chairperson for approval. Once approved, these documents would be distributed to the lot Owners and Committee Members. I was not in the office following the approval of the documents by the Committee Chairperson and therefore could not distribute them.

• A copy of the Roseinga Lodge EGM Notice has been provided. I have no recollection of these errors being made and believe this document has been forged by Chaz Burdett.

• Chaz claims that I have spread misinformation and malicious rumours regarding the organisation and claims he has spoken to me regarding this. This conversation did not occur and at no point during my employment did Chaz raise this issue with me. This statement is a lie. No examples of these rumours have been provided at I do not recall at any point during my employment spreading misinformation or malicious rumours regarding the organisation.

• Chaz has provided one example of my 'inability' to follow processes regarding insurance renewals. This example relates to the insurance renewal of Merrimac Heights. Merrimac Heights is a complex which has regular Committee Meetings. At no point during my employment, or training, did Chaz advise insurance renewals were to be placed upon the Committee Meeting agenda and therefore I did not know this was the process for this particular building.

• On 28 August 2019, a Conciliation was scheduled to take place between myself, Chaz Burdett, and the Conciliator (Michael Purvis). Chaz Burdett was phoned on the day and advised the Conciliator that he was unavailable. In an attempt to resolve the matter internally, I provided the Conciliator with a phone number for Steve Burdett. Steve Burdett was contacted and advised the Conciliator he did not wish to take part in the Conciliation. As such, the Conciliation did not take place despite my efforts to participate, and the matter was referred to Arbitration.”

[emphasis retained from the Applicant’s statement of evidence]

[65] To be abundantly clear: I accept the Applicant’s unchallenged evidence as provided in her statement of evidence as the facts in this matter. The Applicant further attested to her written material by way of oral testimony at the hearing of 4 November 2019. I considered the Applicant to be an honest witness. Her oral testimony was consistent with her written statement of evidence.

Has the Applicant been dismissed?

[66] Whether the Applicant has been dismissed is a threshold issue to be determined.

[67] I am satisfied, having reviewed the Applicant’s termination letter dated 24 June 2019, that the Applicant’s employment with the Respondent has been terminated on the Respondent’s initiative (s. 386(1)(a) of the Act). I am therefore satisfied that the Applicant has been dismissed within the meaning of s. 385 of the Act.

Other preliminary matters

[68] Turning to the matters in s. 396 of the Act, I am satisfied that the Applicant made her application within 21 days following her dismissal (s. 396(a) of the Act); that she was a person protected from unfair dismissal as she was covered by a modern award (s. 396(b) of the Act); that the Small Business Fair Dismissal Code is not relevant in these proceedings (s. 396(c) of the Act) and that this is not a case of a genuine redundancy (s. 396(d) of the Act).

[69] Therefore, having considered these preliminary matters, I am now required to consider the merits of the Applicant’s application.

Was the dismissal harsh, unjust or unreasonable?

[70] Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission 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.

[71] I am required to consider each of these criteria to the extent they are relevant to the factual circumstances before me.

[72] I will now consider each of these criteria.

Was there a valid reason for the Applicant’s dismissal related to their capacity or conduct?

[73] The Commission must consider whether there was a valid reason for the dismissal of the Applicant and it is well established that it need not be the reason given to the Applicant at the time of the dismissal. 5 To be a valid reason, the reason should be “sound, defensible and well founded”6 and should not be “capricious, fanciful, spiteful or prejudiced.”7

[74] Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination. 8

“The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.” 9

[75] On the evidence before me, I cannot be satisfied that there was a valid reason for the Applicant’s dismissal. I find that there was no, or very little, opportunity for the Applicant to correct the deficiencies the Respondent identified in her conduct or performance which were ultimately the reasons the Respondent gave the Applicant for her dismissal in her termination letter. On the evidence before me, I find that many of the alleged conversations that the Respondent said happened between Mr Burdett and the Applicant about her performance and conduct simply did not occur as the Respondent outlined in its termination letter to the Applicant.

[76] On the evidence before me, I accept that a conversation took place on 5 March 2019 between Mr Burdett and the Applicant relating to the Applicant’s mobile phone use, which, according to the Applicant she took on board and was rectifying. I accept that no further conversation was had about this issue until the Applicant was dismissed. I accept also that the Respondent went through a document or documents, including the Merrimac Heights Committee Meeting minutes’, wherein the Applicant had made a number of errors. This was perhaps brought up again, but there were no specific instructions provided to the Applicant on how to improve or the offer of further training or assistance in performing her work. It is therefore not open to me to find that there was a valid reason for the Applicant’s dismissal.

[77] Ultimately, I have determined that there was not a valid reason for the Applicant’s dismissal relating to her capacity or conduct. A finding to this effect weighs heavily in the Applicant’s favour in assessing whether she was unfairly dismissed.

Was the Applicant notified of the valid reason?

[78] Given that I have determined that there was not a valid reason relating to the Applicant’s dismissal, this is not a relevant criterion in my consideration of whether the Applicant was unfairly dismissed. 10

Was the Applicant given an opportunity to respond to any valid reason related to their capacity or conduct?

[79] Again, as I have determined that there was not a valid reason relating to the Applicant’s dismissal, this is not relevant criterion in my consideration of whether the Applicant was unfairly dismissed. 11

Did the Respondent unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal?

[80] The Applicant did not press submissions or lead evidence on this criterion. This is a neutral consideration in the circumstances.

Was the Applicant warned about unsatisfactory performance before the dismissal?

[81] On the evidence before me, it is clear that the Applicant was warned about her mobile phone use at work in a meeting with Mr Chaz Burdett of the Respondent on 5 March 2019. However, I cannot find that this issue was ever raised again until the date of her termination. I also find that at the same meeting the Applicant was warned about the preparation of a document or documents, including ‘the Merrimac Heights Committee Meeting minutes’ wherein the Applicant had made several errors. This document may have been brought up again between 5 March 2019 and the Applicant’s ultimate dismissal date, however, on the evidence, I cannot determine that the Applicant was warned about any other unsatisfactory performance issues. This weighs against a finding that the Applicant was afforded procedural fairness.

To what degree would the absence of dedicated human resource management specialists or expertise in the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal?

[82] The Respondent is a small business and does not have a dedicated human resources function. On this basis, this weighs slightly in the Respondent’s favour given that it was the directors, Mr Chaz Burdett and Mr Steve Burdett who ostensbily are responsible for the Human Resources function. This perhaps mitigates the poor process that was ultimately followed by the Respondent in dismissing the Applicant without a valid reason.

What other matters are relevant?

[83] The Applicant alleged a number of other matters about the conduct of the Mr Burdett throughout her employment. I will not detail these allegations in this Decision. However, it is worth noting that should these allegations be true and correct, this would be an appalling way for a young woman who is just entering the job market and starting career to be treated.

[84] It is clear that for a period of at least two years, the Applicant was receiving commendations for her work. Ms Warnes received job promotions and pay rises commensurate with this praise. In or about March 2019, everything changed. She was then subject to, it would seem, treatment that was inconsitent with how she had previously been commended. Without the Respondent fronting up and providing evidence about what happened from in or about March 2019 and subsequent it is too difficult to join the dots to understand and draw conclusions as to what occurred. Ultimately, on the evidence before me, it seems as though the Respondent just wanted the Applicant gone from the business and then shoddily organised this to happen without going through the correct processes. This was clearly unfair.

Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust or unreasonable?

[85] I am not satisfied that there was a valid reason for the Applicant's dismissal. I am also satisfied that the process followed by the employer did not afford the Applicant procedural fairness. It is mitigated slightly given the size of the Respondent’s business and their lack of a human resources function, but only slightly.

[86] Therefore, having considered each of the matters outlined in s. 387 of the Act, I am satisfied that the Applicant’s dismissal was harsh, unjust and unreasonable.

The Applicant was unfairly dismissed

[87] Given my findings above, I am satisfied that the Applicant was unfairly dismissed within the meaning of s. 385 of the Act.

Remedy

[88] Having found that the Applicant was unfairly dismissed, I am required to now turn my attention to remedy.

[89] At the hearing on 4 November 2019, the Applicant made oral submissions regarding remedy. Being in receipt of the transcript, the Respondent was or ought to have been aware of these submissions. No response was received in relation to these submissions in writing and, as I have previously extensively documented, the Respondent also elected, on its own volition, not to turn up to the hearing that I listed on 6 December 2019 to provide submissions on this point (or indeed any other point) and swear in its evidence. I am therefore left with only the Applicant’s submissions on remedy.

Compensation

[90] In her submission on remedy, the Applicant did not seek the remedy of reinstatement. In any event, I would think it inappropriate to order the reinstatement of the Applicant to the Respondent given the circumstances. The Applicant seeks the remedy of compensation and, as such, I now need to consider whether this is an appropriate remedy.

[91] Section 392(2) of the Act requires all of the circumstances of the case to be taken into account when determining an amount to be paid as compensation to the Applicant in lieu of reinstatement including:

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

(b) the length of the Applicant’s service;

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

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

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

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

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

[92] I consider all the circumstances of the matter below.

Effect of the order on the viability of the Respondent’s enterprise

[93] The Respondent is a relatively small business. However, no evidence was adduced from Respondent about any particular amount of compensation and what effect (if any) it would have on the viability of the Respondent’s business.

[94] No adjustment will be made on this account.

Length of the Applicant’s service

[95] The Applicant was employed with the Respondent for just over two years with the Respondent.

[96] I consider that the Applicant’s length of service does not support reducing or increasing the amount of compensation ordered.

Remuneration that the Applicant would have received, or would have been likely to receive, if the Applicant had not been dismissed

[97] As stated by a majority of the Full Court of the Federal Court, “[i]n determining the remuneration that the Applicant would have received, or would have been likely to receive… the Commission must address itself to the question whether, if the actual termination had not occurred, the employment would have been likely to continue, or would have been terminated at some time by another means. It is necessary for the Commission to make a finding of fact as to the likelihood of a further termination, in order to be able to assess the amount of remuneration the employee would have received, or would have been likely to receive, if there had not been the actual termination.” 12

[98] On this point, the Applicant made the following oral submission 13:

THE DEPUTY PRESIDENT: And how long would have thought you’d continue working for your original employer?

MS WARNES: I loved that job. I loved it so much. I would’ve just stayed there for as long as I possibly could. Yes, it was – my clients were amazing. I got along with everyone really well, so I had absolutely no intention to leave.

[99] I find that the Applicant’s employment would have likely continued for a period of at least twenty-four (24) weeks. I find that the Applicant would have received remuneration during this time of approximately $30,000.00 plus superannuation.

Efforts of the Applicant to mitigate the loss suffered by the Applicant because of the dismissal

[100] The Applicant must provide evidence that they have taken reasonable steps to minimise the impact of the dismissal. 14 What is reasonable depends on the circumstances of the case.15

[101] The Applicant submitted that the Applicant had taken reasonable steps to minimise the impact of the dismissal by finding alternatively work. 16 I am satisfied that the Applicant had secured other employment, albeit less hours, and that she was about to start a weekend job to make up this difference. This amounts to the Applicant mitigating her loss.

Amount of remuneration earned by the Applicant from employment or other work during the period between the dismissal and the making of the order for compensation

[102] From 1 July 2019 until the date of the hearing of 4 November 2019, the Applicant had earned $9,324.00. This amounts to approximately $580 per week. I am satisfied that the amount of remuneration earned by the Applicant from employment during the date of her dismissal as at the date of the hearing on is $9,324.00. I consider that since the date of the hearing, the Applicant may have earned an additional $3,000.00. This gives a total of $12,324.00. However, I will deduct an amount for this, given that the Respondent did not attend the hearing on 6 December 2019, and as such, the date in which an order would have been made would have been earlier by a period of 4 weeks (4 x $580 = 2,320.00). Therefore, I estimate that the Applicant would have earned $11,644.00 between the period of the dismissal and the making of the order for compensation.

Amount of income reasonably likely to be so earned by the Applicant during the period between the making of the order for compensation and the actual compensation

[103] I am satisfied that the amount of income reasonably likely to be earned by the Applicant between the making of the order for compensation and the payment of compensation is approximately $1,160.00 (being 2 x $580).

Compensation – how is the amount to be calculated?

[104] As noted by the Full Bench, “[t]he well-established approach to the assessment of compensation under s.392 of the FW Act… is to apply the “Sprigg formula” derived from the Australian Industrial Relations Commission Full Bench decision in Sprigg v Paul’s Licensed Festival Supermarket (Sprigg). 17 This approach was articulated in the context of the FW Act in Bowden v Ottrey Homes Cobram and District Retirement Villages18.”19

[105] The approach in Sprigg is as follows:

Step 1: Estimate the remuneration the Applicant would have received, or have been likely to have received, if the employer had not terminated the employment (remuneration lost).

Step 2: Deduct monies earned since termination.

Step 3: Discount the remaining amount for contingencies.

Step 4: Calculate the impact of taxation to ensure that the employee receives the actual amount he or she would have received if they had continued in their employment.

Step 1

[106] I have estimated the remuneration the Applicant would have received, or would have been likely to have received, if the Respondent had not terminated the employment to be $30,000.00 on the basis of my finding that the Applicant would likely have remained in employment for a further period of 24 weeks. This estimate of how long the Applicant would have remained in employment is the “anticipated period of employment”. 20

Step 2

[107] I have found that the amount of remuneration earned by the Applicant from the date of dismissal was $11,644.00 and that the amount of income reasonably likely to be earned by the Applicant between the making of the order for compensation and the payment of compensation is $1,160.00

[108] Only monies earned since termination for the anticipated period of employment are to be deducted. 21 I therefore deduct the sum of $12,804.00 from $30,000.00. This gives a total of $17,196.00.

Step 3

[109] I now need to consider the impact of contingencies on the amounts likely to be earned by the Applicant for the remainder of the anticipated period of employment. 22 There being no contingencies, there is to be no discount in the amount ordered.

Step 4

[110] I have considered the impact of taxation but have elected to settle a gross amount of $17,196.00 and leave taxation for determination.

[111] Having applied the formula in Sprigg, I am satisfied that the amount of compensation that I have determined above takes into account all the circumstances of the case as required by s.392(2) of the Act.

Misconduct

[112] If I am satisfied that misconduct of the Applicant contributed to the employer’s decision to dismiss, I am obliged by section 392(3) of the Act to reduce the amount I would otherwise order by an appropriate amount on account of the misconduct.

[113] I am satisfied that misconduct of the Applicant did not contribute to the employer’s decision to dismiss. Therefore, the amount in the order for compensation is not to be reduced on account of misconduct.

Shock, distress or humiliation, or other analogous hurt

[114] I note that in accordance with s. 392(4) of the Act, the amount of compensation calculated does not include a component for shock, humiliation or distress.

Compensation Cap

[115] The amount of $17,196.00 is less than half the amount of the high-income threshold. There is therefore no basis to reduce this amount by reason of s. 392(5) of the Act.

Instalments

[116] No application was made by the Respondent for any amount of compensation to be paid in the form of instalments.

Conclusion on compensation

[117] In my view, the application of the Sprigg formula does not, in this case, calculate an amount that is clearly excessive or clearly inadequate. Therefore, there is no basis for me to reassess the assumptions in reaching an amount of compensation of $17,196.00.

[118] For the reasons I have given, I am satisfied that a remedy of compensation in the sum of $17,196.00 plus superannuation (less taxation as required by law) in favour of Ms Warnes is appropriate in the circumstances of this case. An Order to this effect will be issued with this Decision.

[119] Given the Respondent’s conduct in this matter, I would anticipate adherence to the Order for compensation may not be forthcoming. The Applicant may face an arduous task in recovering the compensation I have awarded her. Should this be the case, I would encourage the Applicant to enforce the Order accompanying this Decision in an appropriate Court.

tle: Lake DP - Description: Seal of the Fair Work Commission with member's signature

DEPUTY PRESIDENT

Appearances:

Mr Crystal Warnes (for the Applicant)

No appearance (for the Respondent)

Hearing details:

4 November 2019; and

6 December 2019

Printed by authority of the Commonwealth Government Printer

1 See for example Lynch v BHP Coal [2020] FWC 44 ; Ms Fiona v Wilson v Mickala Services [2019] FWC 7918.

2 PN75.

3 PN76.

4 PN79.

5 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-378.

6 Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371, 373.

7 Ibid.

8 Edwards v Justice Giudice [1999] FCA 1836, [7].

9 King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24].

10 Chubb Security Australia Pty Ltd v Thomas Print S2679 (AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 2000), [41]; Read v Cordon Square Child Care Centre [2013] FWCFB 762, [46]-[49].

11 Ibid.

12 He v Lewin [2004] FCAFC 161, [58].

13 PN232.

14 Biviano v Suji Kim Collection PR915963 (AIRCFB, Ross VP, O’Callaghan SDP, Foggo C, 28 March 2002), [34] citing Lockwood Security Products Pty Ltd v Sulocki and Ors PR908053 (AIRCFB, Giudice J, Lacy SDP, Blair C, 23 August 2001), [45].

15 Biviano v Suji Kim Collection PR915963 (AIRCFB, Ross VP, O’Callaghan SDP, Foggo C, 28 March 2002), [34] citing Payzu Ltd v Saunders [1919] 2 KB 581.

16 PN211 – PN231.

17 (1998) 88 IR 21.

18 [2013] FWCFB 431.

19 Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries [2016] FWCFB 7206, [16].

20 Ellawala v Australian Postal Corporation Print S5109 (AIRCFB, Ross VP, Williams SDP, Gay C, 17 April 2000), [34].

21 Ibid.

22 Enhance Systems Pty Ltd v Cox PR910779 (AIRCFB, Williams SDP, Acton SDP, Gay C, 31 October 2001), [39].