DECISION

Fair Work Act 2009
s 394—Unfair dismissal

Dorine Torres-Carne
v
Darwin Aboriginal and Islander Women’s Shelter (DAIWS)
(U2019/13439)

Application for an unfair dismissal remedy – Domestic Violence Support Worker – applicant a regular and systematic casual employee – restructuring of organisation – greater focus on permanent employment – offers of permanent positions – applicant’s limited shift availability – applicant advised that no further shifts would be offered – decision taken at employer’s initiative – applicant dismissed – valid reason for dismissal but procedurally unfair – applicant not warned her casual employment at risk or given an opportunity to reconsider her limited shift availability – dismissal unreasonable – compensation ordered.

[1] Ms Dorine ‘Linny’ Torres-Carne was employed as a Domestic Violence Support Worker (‘DVSW’) by the Darwin Aboriginal and Islander Women’s Shelter (‘DAIWS’) on 8 December 2015, under the terms and conditions of the Social, Community, Home Care and Disability Services Industry Award 2010 (the ‘Award’). Her employment came to an end on 18 November 2019 as a result of a letter she received from the DAIWS General Manager, Ms Regina Bennett, on 1 November 2019 which reads:

‘Hi Lini,

Re: Casual Work

In a recent discussion with the Acting Operations Manager, Kathleen Bobongie, you advised that your personal circumstances have changed and that you would only be available for specific shifts. Unfortunately, DAIWS is unable to accommodate the limited shifts that you have recently nominated [and] therefore cannot offer any further casual work after the next roster ceases on the 18^th November 2019.

DAIWS thanks you for the valuable contribution that you have made within the organisation and wishes you all the best for the future. Thank you.

Regina Bennett’

[2] On 2 December 2019, Ms Torres-Carne (hereafter the ‘applicant’) filed a claim for unfair dismissal, pursuant to s 394 of the Fair Work Act 2009 (the ‘Act’). At the time, the applicant was represented by a paid agent, Mr Lucio Matarazzo. The respondent, DAIWS, filed an objection to the application asserting the applicant had been employed on a casual ad hoc basis and had otherwise not met the minimum employment period required by s 383 of the Act. I note that on 28 December 2019, Mr Matarazzo filed a notice of ceasing to act for the applicant.

[3] Regrettably, this matter has had a long and convoluted history. I set this history out in short form. After undergoing a jurisdictional triage process superintended by Vice President Catanzariti, the jurisdictional objection was abandoned by the respondent, and the matter remitted to Commissioner Spencer. On 13 February 2020, the Commissioner issued directions for a 2-day hearing of the substantive application in Darwin on 21 and 22 April 2020. The hearing dates were brought forward to 31 March and 1 April 2020 and the directions were amended accordingly.

[4] The applicant filed her evidence, two other witness statements and relevant documents on 3 March 2020. The Commissioner issued a statement on 18 March 2020 and advised, inter alia, that the matter had been reallocated to me for hearing in Darwin. This became impossible as a result of the COVID-19 pandemic, and the hearing scheduled on the same days, was conducted by telephone rather than in person.

[5] The proceedings on 31 March 2020 were abandoned when it became apparent the applicant had great difficulty in understanding the required procedures and was overwhelmed by the circumstances. She later obtained a medical certificate to that effect on 8 April 2020. The applicant also foreshadowed an application being that I recuse myself from further proceedings in her matter. In light of this, I adjourned the matter and issued directions for a hearing on the recusal application. However, on 14 April 2020, the applicant advised my Chambers as follows:

‘…

5. Based on these cases and other factors and other enlightenment, I now withdraw my objections that yourself Deputy President Sams recuse yourself from dealing with this Fair Work Commission matter - U2019/13439 - Torres-Carne, Dorine v Darwin Aboriginal and Islander Women’s Shelter.

6. As I now withdraw my objections, I now request that this application now be dealt with via the way forward as stated in this correspondence to you and the directions for myself to have submissions to your Chambers by 14 April 2020 now no longer apply.

The Way Forward

7. I attach by way of evidence my medical certificate dated 8 April 2020 that I am unable to self-represent myself in this matter due to significant anxiety and high stress and panic attacks I would endure and it would cause me to self-represent myself in this matter and articulate and advocate in this case. [See attached my Medical Certificate dated 8 April 2020.]

8. I also attached as evidence my attendance to counselling at Anglicare NT [See attached].

9. I suffered significant anxiety and high stress and a significant panic attack at the last Fair Work Commission hearing on Tuesday 31 March 2020 and I am concerned that in addition I also would suffer further significant health deterioration and significant panic attacks if I was to be cross examined by Mr Rob Perry and or required to self-represent myself in this Fair Work Commission matter

10. Regrettably myself and my husband are not in financial position and do not have the money required to get a lawyer and or a paid agent to represent myself to advocate and articulate my case in the Fair Work Commission.

11. The Northern Territory Working Womens Centre and the Darwin Community Legal Services have also stated that they are unable to represent me in this matter in the Fair Work Commission.

12. A way forward is that I give my consent for the Fair Work Commission to continue with these proceedings with this matter in my absence and without my further participation to finalisation and for there to be a decision handed down in this matter in my absence because of my health reasons and the financial reasons as stated. I give this consent now to the Fair Work Commission

13. I also state that there is also already significant primary evidence before the Fair Work Commission to assist in determining this matter namely and including

•  All material thus far lodged to the Fair Work Commission including and not limited to

•  My Form F 2 Application lodged with the Fair Work Commission on 26 November 2019.

•  The DAIWS letter dated 1 November 2019 that DAIWS the employer sent to me.

•  My email dated 8 November 2019 that I sent to DAIWS General Manager Ms Regina Bennett.

•  The DAIWS email of General Manager Ms Regina Bennett sent to me dated 15 November 2019.

•  Exhibit 4 is a DAIWS employment position advertised in the NT News Newspaper dated Saturday 30 November 2019 which proves that in Exhibit 1 where the employer claims to me that the employer “cannot offer (me) any further casual work after the next roster ceases on the 18th November 2019” is not true and is fictitious.

•  All other material and submissions I have subsequently lodged including the witness statements of witnesses Ms Judith Anne Carne and Ms Rosemary Therese Baird.’

[6] Despite this rather unusual turn of events, I agreed to the applicant’s proposed course of action and a hearing, without the presence of the applicant, was listed on 29 April 2020. No witness was required for cross examination. However, I determined that the applicant be provided with a copy of the transcript and directed both parties to file final submissions according to a further timetable.

THE EVIDENCE

[7] The following persons provided statements in the proceeding:

•  the applicant;

•  Ms Rosemary Therese Baird – former Senior Support Worker and employee;

•  Ms Judith Anne Carne – applicant’s sister in law and Community Support Worker Level 3;

•  Ms Margaret Rowe – DAIWS – Chair of the Board;

•  Ms Lesley Male – Case Worker;

•  Ms Nancy Chandler – Case Worker;

•  Ms Ngaire Bowditch – DAIWS Director;

•  Ms Regina Bennett – DAIWS General Manager; and

•  Ms Kathleen Bobongie – Acting Operations Manager.

[8] Notwithstanding the significant amount material filed in this matter, the gravamen of this case goes to the circumstances up to, and surrounding a discussion the applicant had with Ms Bobongie on 18 October 2019 and the letter from DAIWS of 1 November 2019 advising that it was unable to offer her further shifts based on her limited availability. There is no need to refer to the evidence about the nature of the applicant’s casual employment, as that objection is no longer pressed. A summary of the evidence is set out below:

For the respondent

Ms Kathleen Bobongie

[9] Ms Bobongie commenced employment with DAIWS on 5 June 2019. As Operations Manager, Ms Bobongie said she found DAIWS a very challenging place to work with a high level of gossiping amongst staff and daily complaints made by staff against one another. She attributed part of the problem to all DVSWs being casual employees, rather than permanent employees. When she first commenced work, Ms Bennett had told her that the Board was working on a restructure of the organisation to address the workplace profile.

[10] One of Ms Bobongie’s duties included preparing the fortnightly roster across three sites; being:

•  DAIWS Shelter;

•  Magdalene Safe House (‘MSH’); and

•  Transitional Housing Unit (THU).

There are 14 day shifts and 14 night shifts, and a weekend day shift at two of the sites. The night shifts require a sleepover. Ms Bobongie said that the applicant worked across the three sites averaging 20 hours a week. She was employed as a casual on an ‘as needs’ basis.

[11] Ms Bobongie said that the roster includes set shifts for part time Support Workers and full time DVSWs. All employees are required to advise in advance if they are unavailable for future shifts. It was Ms Bobongie’s evidence that she takes into account the personal requests of all casual employees, as to their inability to undertake particular shifts. She had received many complaints about some casuals getting more shifts than others, and complaints of imbalance in the allocation of higher paid shifts, such as on weekends or sleepovers.

[12] Ms Bobongie said that in July 2019, the applicant approached her to discuss her availability during July (including the school holidays). She gave her a post-it note which indicated:

•  16-21 July – available on any night/day;

•  22-29 July – THU; and

•  30 July – any shifts.

[13] Ms Bobongie understood these shifts corresponded to the applicant’s sister visiting her from Tonga and being available to assist in babysitting her children. Her sister usually stayed for three months at a time.

[14] In July 2019, two positions were upgraded and advertised for Senior DVSWs. After all staff were encouraged to apply, three of the casual employees did so. One casual was successful, and another was appointed to act in higher duties. During this period, management held staff meetings to advise of changes in the workplace and the effects on staffing levels and shift availability. At one meeting, the applicant asked specifically if casual staff could apply to become permanent part time employees. Ms Bennett advised that during the present transition, this could not be offered, but with other casuals being appointed as permanent employees, there might be shortages on night shifts. Staff were encouraged to seek other casual work, as casual employees could not be guaranteed more than four shifts in a roster cycle. Two further casual positions were advertised on 16 October 2019 and 13 December 2019.

[15] On 18 October 2019, the applicant approached Ms Bobongie to advise of her availability as follows:

•  No day shifts during the week.

•  No night shifts except THU.

•  Available Saturday night at MSH.

[16] Ms Bobongie noted this information in her diary and confirmed it again with the applicant. She told the applicant she would need to get back to her, after discussing the matter with Ms Bennett. The applicant was then offered three shifts in accordance with her preferences:

•  Tuesday 22/10 THU;

•  Tuesday 29/10 THU; and

•  Monday 4/11 THU.

[17] However, the applicant phoned her on the day of the first two shifts to advise of her unavailability, notwithstanding employees should do so (unless falling ill or in an emergency), prior to the roster being set. As a result, on 1 November 2019, Ms Bennett wrote to the applicant (see: [1] above).

[18] Ms Bobongie understood that the applicant replied to Ms Bennett on 8 November 2019 and claimed there had been a misunderstanding on 18 October 2019. Ms Bobongie maintained there was no misunderstanding, particularly as Ms Bennett had told her prior to 18 October 2019 that as the applicant’s sister was soon to return to Tonga, she could expect her to ask for a change of shifts (which she did).

[19] Ms Bobongie believed that with the filling of the three DVSW permanent positions, the roster had become more manageable and resulted in:

•  ‘30 day shifts (week days from Monday to Friday) being taken out of the equation (10 at MSH, 20 at DAIWS). There are 3 permanent workers that occupy the other 8 dayshifts on the weekend therefore all dayshifts are occupied by permanent workers. There are no more dayshifts available for casual employees.

•  There are 4 permanent employees that occupy 21 nightshifts out of 42 shifts. There are 2 casual staff that occupy up to 6 shifts each [totalling] 12 nightshifts. There are only 9 other nightshifts which are currently being taken up by 3 emergency workers. Some of the nightshifts involve sleepovers.

•  The roster as it currently stands is much easier to populate, more efficient and there is more consistency with shifts which results in less absenteeism. DAIWS has almost reached its reform goal in terms of transitioning from casual workers to a more stable and permanent workforce.’

[20] Ms Bobongie noted that the applicant was a good worker and there were no issues concerning her performance. The reality was that the number of casual shifts became limited after the staff changes. These changes were fully disclosed in staff meetings which the applicant had attended. She had not applied for, or expressed interest in the three permanent positions. Ms Bobongie said she was unaware of any attempt by the applicant to seek alternative employment during the second half of 2019 or since.

[21] In oral evidence, Ms Bobongie said she had a very clear recollection of the applicant’s shift request on 18 October 2019. She repeated back to her ‘you can’t do any day shifts during the week, you can only do night shifts at the THU, you can’t do sleepovers and possibly do Saturday nights’. The applicant confirmed these requests. Ms Bobongie said the applicant gave no timeframe for her availability beyond these limits. Ms Bobongie added that although three shifts were offered, she only attended one. Before the first shift, she rang to say she was going to the airport because her sister was going back to Tonga. Ms Bobongie believed that she must have known of this beforehand.

[22] Ms Bobongie said that the impact of trying to accommodate the applicant’s preferences would have resulted in having to move other staff. This would cause discontent and create instability. The only reason the applicant could not be offered any more shifts, was that the organisation could not cater for the specific shifts she wanted. Ms Bobongie acknowledged that prior to October, the applicant had been available for any shifts and was often asked, and accepted extra shifts. These included a variety of night and day shifts. Ms Bobongie clarified the current staff profile as 15 employees, only 2 of whom are casuals. The remainder are permanent full or part time employees.

Ms Regina Bennett

[23] Ms Bennett described the role of DAIWS, its management structure, funding sources, staffing levels and the change process in late 2019. Ms Bennett’s evidence largely corroborated Ms Bobongie’s evidence. She said that the shifts the applicant had requested were taken up by permanent part time employees. This was discussed at a number of staff meetings, in which casual staff were encouraged to apply for the new permanent positions and informed that casual shift opportunities were limited and could not be guaranteed. The applicant chose not to apply. This was no reflection on the applicant’s performance or conduct.

[24] Ms Bennett denied making a sarcastic comment about the applicant having a baby as the reason she did not apply for a permanent position; see: [30] below. She agreed there was a discussion in mid-2019 with the applicant’s sister in law (who also worked at DAIWS at the time), in which Ms Judy Carne was rude to her when she wanted to know why the applicant had not been offered a part time position. Ms Bennett noted that the applicant had two significant breaks in her employment (26 weeks in 2017 and 8 weeks in 2018). This was consistent with her casual employment arrangement.

[25] In oral evidence, Ms Bennett described the reasons why she wrote the letter to the applicant on 1 November 2019:

‘I wrote the letter following a meeting with my operations manager, Kathleen Bobongie, who Linny met with on, I think it was about 16 October, in regards to Linny not being able to do certain shifts, and she was - and she explained to my operations manager that - it was quite significant, the shifts that she couldn't do, and that was reported back to me that afternoon and I looked at that and, because of all the changes that we had been doing within the rosters with the casual workers, which was an instruction from the Board, as well as looking at an agreement that we signed up in December about the changes that we were about to do in the organisation in making all our casual workers eventually, you know, permanent part-time, and Linny stated that she was unable to do the flexible shifts that the others could do, so, I made that decision on that basis.’

[26] The other witnesses for the respondent, Ms Bowditch and Ms Roe as Director and Chair respectively of the Board, gave short evidence of the Board’s consideration and endorsement of the workplace changes to move towards more permanent employment in 2019. This evidence is not contested.

[27] Ms Chandler and Ms Male both gave short evidence as to their attendance at staff meetings held in 2019 to advise of the advertising for permanent positions. Staff were encouraged to apply as a result of the workplace changes. Similarly, this evidence is not contested.

For the applicant

[28] The applicant’s statement understandably focused on her primary contention that she worked regular and systematic shifts according to a set roster and had a reasonable expectation of being offered continuous work. She would often cover late shifts, or at short notice and had never received and warnings or criticisms of her performance. During her employment with DAIWS she had undertaken a Certificate IV in Community Services Training. This had been interrupted by her termination and she now feels shame and stigma when attending the course.

[29] Since her dismissal, the applicant claimed she had suffered great pain, suffering and emotional distress, and had been seeking medical assistance for depression, upset, rejection, sadness and anger. Her family is experiencing extreme financial hardship, which puts additional stress on her and her family.

[30] The applicant’s sister in law (Ms Carne) gave evidence which dealt with the nature of the applicant’s casual employment. She described a meeting (undated) with Ms Bennett in which she alleged Ms Bennett said the applicant was not offered part time employment because Lini (the applicant) ‘wants to be off having babies’. Perhaps not unexpectedly, Ms Carne said the applicant was a very hard worker dedicated to her job and clients. She was always willing to cover extra shifts when asked.

[31] Another former employee, Ms Baird, gave evidence about the regular and systematic casual employment of the applicant. Such evidence is no longer relevant.

SUBMISSIONS

For the respondent

[32] Mr R Perry from the Chamber of Commerce NT set out the role of DAIWS in assisting Aboriginal and Torres Strait Islander women and children facing domestic and family violence and personal trauma in regard to matters such as sexual assault/abuse and homelessness. Funding for its work is primarily from the Northern Territory and Commonwealth Governments. In 2019, the organisation’s Board recognised a need to reform its workplaces by transforming a largely casual workforce to a permanent one, in order to create efficiencies and improve service delivery and to ensure its funding base continued.

[33] Mr Perry submitted that the applicant had opportunities to apply for three permanent positions, but declined to do so, and although there were limited casual shifts available, the applicant’s limited availability could not be accommodated within the new structure. Her position was not redundant and the respondent did not initiate the termination of her employment; rather, it was her own actions which caused the decision to be made; s 386(1) of the Act. In effect, it was the applicant’s advice of her changed circumstances which forced the respondent to cease offering her further casual shifts, because it could not accommodate her limited availability; see: Khayam v Navitas English Pty Ltd t/a Navitas English [2017] FWCFB 5162. Mr Perry submitted that because the termination of the applicant’s employment was not at the employer’s initiative, there was no dismissal, and therefore she had no recourse to the Act’s unfair dismissal provisions.

[34] Mr Perry put that should the Commission not accept the respondent’s jurisdictional argument, the Commission would, in any event, consider the provisions of s 387 of the Act had been satisfied and her dismissal was neither harsh, unjust nor unreasonable. He put that:

(a) there was a valid reason for the dismissal of the applicant relating to her capacity to undertake work for the respondent, as and when required;

(b) the applicant was notified of the reason;

(c) the applicant responded to the reasons for termination in correspondence dated 8 November 2019;

(d) the circumstances of the matter did not require the need for a meeting in which a support person was required;

(e) performance was not a factor relevant to the ending of the applicant’s employment; and

(f) the respondent acted in a manner appropriate to the information it received from the applicant, which triggered the respondent’s action to cease providing her with casual shifts.

[35] Mr Perry addressed the applicant’s submissions that there was a misunderstanding between her and Ms Bobongie on 18 October 2019. He said that either her advice to Ms Bobongie as to her availability was false, or her retraction of this advice on 8 November 2019, was a fabrication. The respondent had acted on the information it had been given and confirmed by her. There were no allegations of poor performance or bad behaviour, and it is disingenuous for the applicant to argue she was not given an opportunity to respond to allegations, which were never raised as the reasons for the decision not to offer her any further shifts.

[36] Mr Perry said the respondent disputed a number of the applicant’s alleged background facts, such as:

(a) The applicant did not work continuously for DAIWS from 2016, as she had two significant breaks in employment of six months and two months respectively.

(b) Her claim that she rarely dropped an allocated shift was wrong, as she failed to attend two of her last three shifts.

(c) She was not continuously employed until 18 December 2019. Her last shift was 18 November 2019.

(d) It was misleading for the applicant to claim she was never offered a permanent position, as she had the opportunity to apply for three permanent positions, but declined to do so.

(e) She had never made a complaint about her treatment.

(f) There was no right for the applicant to meet the Board, as the decision not to offer her further shifts was an operational decision taken by the General Manager.

(g) The evidence of the applicant’s witnesses is irrelevant in these proceedings.

(h) None of the applicant’s submissions as to her regular and systematic employment are relevant as this objection is not pressed.

(i) The evidence as to other proceedings involving Ms Bennett was irrelevant and otherwise misleading.

(j) The claims of the applicant’s ‘emotional distress’, depression etc. caused by the respondent are not supported by any medical evidence. Further, EAP counsellors were available to all employees. The applicant never accessed these services. Further, such grounds are not permitted under s 392(4) of the Act.

For the applicant

[37] In accordance with the agreed arrangements; see: [5] above, the applicant provided closing submissions which I summarise below.

[38] The applicant sought to rely on the statements of Ms Baird and Ms Carne in their entirety, as the respondent did not seek to cross examine them. She further sought a formal finding that she was a regular and systematic casual employee (notwithstanding this objection was not pressed by the respondent) and relied on a number of Commission authorities on the subject.

[39] The applicant strongly denied that she had resigned from her employment on 18 October 2019. No express or implied words were ever used by her to indicate an intention to resign. The facts were that she was dismissed from the last time she worked on 18 November 2019. The applicant submitted that she had no opportunity to respond to any discussions between Ms Bobongie and Ms Bennett; no opportunity to discuss the intent of her initial request or whether she would be available for other shifts. Ms Bennett simply wrote the letter of 1 November 2019, without any consultation with her; see: Maher v AJ & MT Properties Pty Ltd t/a Belle Property South Brisbane [2013] FWC 7853 (‘Maher v MT Properties’).

[40] The applicant referred to the email exchange between herself and Ms Bennett on 8 November 2019 and 15 November 2019, to demonstrate that she had no intention of resigning and wished to continue working for DAIWS. The applicant claimed the respondent ‘fabricated and wilfully distorted and twisted the circumstances’ in order to take an opportunity to dismiss her, when all she did was to make an inquiry to do night shifts instead of day shifts. The applicant referred to Ms Bennett’s evidence; see: [25] above, to demonstrate that she took no steps to consult with her about the misunderstanding with Ms Bobongie. The applicant relied on an advertisement in the local paper on 30 November 2019, seeking new employees, to prove there were shifts that she could have been offered.

[41] The applicant submitted that Ms Bobongie’s evidence of their discussion on 18 October 2019 was untrue. She denied only turning up for one shift on 22 October, 29 October and 4 November 2019. She had worked two of these shifts and had a doctor’s certificate for the third.

[42] The applicant claimed the post-it note relied on by Ms Bobongie as to her available duties referred to dates in 2018 – not 2019. The applicant claimed Ms Bobongie’s evidence is not credible because she was not writing anything when she spoke to her and the date is wrong. Her claim of making notes of any discussions with staff is not credible, because no other notes of any other discussions are made in the diary entry for that day.

[43] The applicant sought 26 weeks’ pay as compensation for her unfair dismissal which was based on ‘falsehoods and the rewriting of history’. There was no valid reason for her dismissal. She had been treated ‘harshly, unjustly and unfairly’. Finally, the applicant acknowledged she had not obtained any other employment since her dismissal.

Respondent’s closing submissions

[44] Mr Perry submitted that the evidence of Ms Baird and Ms Carne was irrelevant to the issues to be determined in this case; namely, whether the applicant was ‘dismissed’ and if so, was the dismissal ‘harsh, unjust or unreasonable’.

[45] Mr Perry disputed the applicant’s purported facts demonstrated she had not resigned. Ms Bobongie gave clear evidence that the applicant had advised her of her availability for certain shifts. She and Ms Bennett believed that there was no reason to further discuss the matter, as she had made her position perfectly clear to Ms Bobongie on 18 October 2019. Mr Perry said the decision in Maher v MT Properties was not relevant as there had been no formal or informal notice, whereas in this case, the applicant had not merely ‘inquired’ as to whether she would be considered for limited shifts. Her instructions to Ms Bobongie were clear and confirmed.

[46] Mr Perry rejected the criticisms of the sworn evidence of Ms Bobongie and Ms Bennett and the Commission would accept their evidence. Mr Perry put that the respondent did not dispute it had advertised for a case worker on 30 November 2019. However, this was for a permanent full-time employee, not a casual employee. Further the applicant had expressed no interest in applying for any of the advertised permanent positions, despite being encouraged to do so.

[47] Mr Perry denied that Ms Bennett accepted the applicant’s resignation and there was no misunderstanding of what the applicant told Ms Bobongie on 18 October 2019. Her claim of working two of the three shifts in late October 2019 was plainly wrong, as Ms Bobongie’s evidence made clear. Mr Perry said that the applicant’s claim of Ms Bobongie’s post-it note being related to 2018 rather than 2019, was not admissible as it was new evidence the respondent was not able to respond to. At no time previously had the applicant sought to challenge Ms Bobongie’s evidence in this respect.

[48] Mr Perry noted the inconsistency in the applicant’s approach to adopt Ms Bennett’s evidence as to her good work performance, but then claimed she was not a credible witness.

[49] In summary, Mr Perry submitted that the facts of this matter are akin to an employee submitting a resignation and it being accepted by the employer, and the employer refusing to accept or withdraw that resignation, when the employer had made arrangements to replace the employee and hire new permanent employees in her place. There was no turning back, as it would cause detriment to the other casual and permanent employees.

[50] Mr Perry referred to Walker v Kunchaya Klindokput t/as Fenwick Realty [2019] FWC 2754 in which Vice President Hatcher heard an unfair dismissal in the absence of the applicant and with sworn evidence of the respondent. His Honour said, inter alia, at [5]:

‘… but I will give very significant weight to the fact that Ms Walker gave evidence on oath whereas for the respondent I only have the unsworn and untested witness statement of Mr Smith plus a number of miscellaneous documents.’ (footnote omitted)

Mr Perry put that the Commission would adopt the same approach here, where the applicant had not attended the hearing on medical grounds and requested her case be determined on the material filed by her.

[51] If the Commission was against him as to the applicant’s resignation, Mr Perry said that reinstatement would be inappropriate, as the profile of the organisation had changed from casual to permanent employment and no position exists to which the applicant could, or should be reinstated to.

[52] As to compensation, Mr Perry referred to s 392 of the Act and put:

(a) ‘The Respondent is a not for profit organisation tending to the needs of very vulnerable women and children in the community. They rely mostly on government funding and have no significant cash reserves. Any amount of compensation awarded would affect the Respondent’s ability to carry out its services to its clients, which would place clients at risk and which is not in the public interest;

(b) The Applicant has worked for the Respondent on and off for the past 4 years on a casual basis;

(c) The Applicant’s remuneration would have reduced gradually over the period from December 2019 to March 2020 when the Respondent transitioned to a mostly permanent workforce;

(d) The Applicant has not sought to mitigate her losses at all. She has stated that she had been left “traumatised” by the Respondent’s decision to cease to offer her casual shifts and that this has meant she was too unwell to seek alternative employment, however she has not provided any medical evidence whatsoever to confirm she has been unable to work from mid-November 2019 to the present;

(e) The Respondent is unaware of whether the Applicant has received any remuneration – including any social security benefits – due to her decision not to be available for questioning during the hearing;

(f) The Respondent does not know and cannot speculate on any remuneration the Applicant may earn in this regard;

(g) Other matters that the Deputy President may consider relevant are the public interest as set out above and the Applicant’s own actions that led to the Respondent ceasing to engage her as a casual employee.’

CONSIDERATION

[53] At the outset, let me say that there is often a tension between the statutory protections from unfair dismissal (s 384) afforded to a regular and systematic casual employee with the ordinary well-understood rights of a casual employee to refuse casual engagements, and alternatively, the employer’s right not to offer shifts to a casual employee. That is not to say that an employer cannot refuse to offer further shifts (effectively terminating the employment relationship) for poor performance, misconduct or other valid reasons; see: Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 (‘Selvachandran’). That said, each case will turn on its particular facts and circumstances.

[54] On the other hand, the statutory protections from unfair dismissal afforded to a regular and systematic casual employee must include the full gamut of the matters the Commission is required to take into account under s 387 of the Act, including affording the employee procedural fairness when the employer decides to no longer offer the employee further casual shifts.

[55] However, in this case, the respondent argued that the applicant’s advice to Ms Bobongie that she was only available for very limited casual shifts which, following a workplace restructure, had been filled by permanent employees, meant her actions constituted the initiation by her of the termination of the arrangement to offer her ongoing shifts, in effect an unforced resignation. This action meant the effective initiator of the termination of the employment relationship was not the employer and therefore there was no dismissal and axiomatically, no unfair dismissal. For the reasons which follow, I do not agree.

[56] The meaning of ‘dismissal’ in this context has been considered by the Commission and its predecessor entities over many years. The oft quoted authority as to the meaning of ‘termination at the initiative of the employer’ is that found in Mohazab v Dick Smith Electronics Pty Ltd [1995] IRCA 625; 62 IR 200, where the Full Court of the Industrial Relations Court of Australia said:

‘These definitions reflect the ordinary meaning of the word ‘initiative’. Viewed as a whole, the Convention is plainly intended to protect workers from termination by the employer unless there is a valid reason for termination. It addresses the termination of the employment relationship by the employer. It accords with the purpose of the Convention to treat the expression ‘termination at the initiative of the employer’ as a reference to a termination that is brought about by an employer and which is not agreed to by the employee. Consistent with the ordinary meaning of the expression in the Convention, a termination of employment at the initiative of the employer may be treated as a termination in which the action of the employer is the principal contributing factor which leads to the termination of the employment relationship. We proceed on the basis that the termination of the employment relationship is what is comprehended by the expression ‘termination of employment’: Siagian v Sanel [1994] IRCA 2; (1994) 1 IRCR 1 at 19; 54 IR 185 at 201. In many, if not most, situations the act of the employer that terminates the employment relationship is not only the act that puts in train the process leading to its termination but is, in substance, the entire process. An example would be a situation where the employer decided to dismiss an employee and did so orally or in writing with immediate effect. Other situations may be more complex as exemplified by the circumstances considered by Moore J in Grout v Gunnedah Shire Council (1994) 1 IRCR 143; 57 IR 243 where an employee had given written notice purporting to terminate the employment relationship. The notice was not reasonable but was accepted by the employer which later refused to allow the employee to withdraw the notice. A question arose as to whether that was a termination of the employment at the initiative of the employer and his Honour held it was. His Honour said at 160-161; 259:

‘I have already said that Div 3 concerns termination at the initiative of the employer. The respondent submits that “initiate” means “to begin, commence, enter upon; to introduce, set going, or initiate”: see Shorter Oxford English Dictionary. In this matter, it is submitted, it was the applicant and not the respondent that initiated the termination by writing the letter of 18 May. This, in my opinion, gives the expression “termination” in the Act, read in conjunction with Art 3 of the Convention which speaks of “termination ... at the initiative of the employer”, a narrow meaning that was not intended. A principal purpose, if not the sole purpose, of Div 3 is to provide an employee with a right to seek a remedy in circumstances where the employee did not voluntarily leave the employment. An employee may do some act which is the first in a chain of events that leads to termination. An example would be an employee who engaged in misconduct at work which ultimately led to the employer dismissing the employee. However, that situation and the present are not situations where the termination was at the initiative of the employee. In both instances the step or steps that effectively terminated the employment or purported to do so were taken by the employer.’

In these proceedings it is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer but plainly an important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship. This issue was addressed by Wilcox CJ in APESMA v David Graphics Pty Ltd (unreported, Industrial Relations Court of Australia, 12 July 1995, Wilcox CJ). His Honour, at p 3, referred to the situation of an employee who resigned because ‘he felt he had no other option’. His Honour described those circumstances as:

‘... a termination of employment at the instance [of] the employer rather than of the employee.’

And at p 5:

‘I agree with the proposition that termination may involve more than one action. But I think it is necessary to ask oneself what was the critical action, or what were the critical actions, that constituted a termination of the employment.’”

(my emphasis)

[57] In P O’Meara v Stanley Works Pty Ltd (2006) 58 AILR 100 (‘O’Meara’), a Full Bench of the AIRC said:

‘In our view the full statement of reasons in Mohazab which we have set out together with the further explanation by Moore J in Rheinberger and the decisions of Full Benches of this Commission in Pawel and ABB Engineering require that there to be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. It is not simply a question of whether “the act of the employer [resulted] directly or consequentially in the termination of the employment”. Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution as they may not give full weight to the decision in Mohazab. In determining whether a termination was at the initiative of the employer an objective analysis of the employer’s conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign.’

[58] It is well established that when an employer is considering dismissing an employee for capacity or conduct, it is incumbent on the employer to warn the employee that their future employment is at risk; see: Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport (2000) 98 IR 137 and Swain v Ramsey Food Packaging Pty Ltd [1999] IRComnA 1504. This serves to not only warn the employee of the seriousness of the matter, but provides the employee with an opportunity to properly prepare their explanation or defence as to why they should not be dismissed. This is a requirement under s 387(c) of the Act, and applies no less to a regular and systematic casual employee, who may not be offered any further shifts, and as I said earlier, effectively bringing the employment relationship to an end.

[59] In my view, the evidence established that Ms Bobongie and the applicant had a conversation, recorded by Ms Bobongie in her diary and a post-it note, as to the applicant’s limited availability. It is not materially relevant whether the meeting was 16 or 18 October 2019, as there is no doubt the meeting took place. Ms Bobongie conveyed this information to Ms Bennett and together they decided not to offer her any further shifts after 18 November 2019, stating in the 1 November 2019 letter:

‘… Unfortunately, DAIWS is unable to accommodate the limited shifts that you have recently nominated [and] therefore cannot offer any further casual work after the next roster ceases on the 18th November 2019.’

The letter concluded by thanking her for her contribution to DAIWS and ‘wishing her well for the future’.

[60] In my view, these words are an unequivocal indication of the employer’s intent to effect the termination of the employment relationship. More importantly, however, there was no attempt by Ms Bennett to discuss with the applicant the meeting with Ms Bobongie, or to warn her that her shift availability would lead to the end of her employment. That said, I do not accept that Ms Bobongie concocted her diary notes, or that there was some misunderstanding of the applicant’s intentions. I accept her evidence that she repeated the applicant’s advice back to her and she confirmed it. However, this is not the point. The applicant was not warned of the ramifications of her advice, or given an opportunity to reconsider the advice she gave to Ms Bobongie. I also accept the evidence that there was a business imperative to move to a more permanent cohort of employees replacing most of the casual employees, and that the applicant had at least three opportunities to apply for a permanent position, but declined to do so.

[61] On one view, the resultant circumstances might be said to have constituted a genuine redundancy, amounting to a valid reason for dismissal. However, even if viewed in this context, what actually occurred would not have ‘passed muster’ as to compliance with the consultation provisions under s 389 of the Act, thereby making the dismissal unfair. Nevertheless, I am satisfied that the applicant was dismissed at the initiative of the employer.

Preliminary findings

[62] In accordance with s 396 of the Act, the Commission is required to make findings on a number of preliminary matters. These are:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code; and

(d) whether the dismissal was a case of genuine redundancy.

[63] At this juncture, I determine that:

(a) The applicant was dismissed at the initiative of the employer (s 385);

(b) The applicant is a national system employee and the respondent is a national system employer (ss 13, 14, 380);

(c) The applicant’s unfair dismissal application was lodged within the 21-day statutory time limit prescribed by s 394(2)(a) of the Act (s 396(a));

(d) The applicant had completed the minimum employment period of 6 months, having been employed for nearly 4 years (ss 382(a) and 383);

(e) The employment of the applicant was governed by a Modern Award (s 382(b)(i)); and

(f) Neither of sub-sections (c) or (d) of s 396 the Act are relevant to this application.

[64] Section 385 of the Act defines an unfair dismissal based on four criteria which must be satisfied if a person, seeking a remedy for unfair dismissal, is to succeed. This section reads:

What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

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

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

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

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.

[65] It follows that there can be no argument that the applicant was a person protected from unfair dismissal. Consequently, the only question which falls for determination by the Commission is whether the applicant’s dismissal was ‘harsh, unjust or unreasonable’ (s 385(b)) within the meaning of s 387 of the Act and, if so, what remedy, if any, should be awarded by the Commission, pursuant to ss 391 and 392 of the Act. I turn then to s 387 of the Act, which requires the Commission to take into account the following:

(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.

[66] I shall come back to these matters shortly. However, I add at this juncture, that the meaning of the expression ‘harsh, unjust or unreasonable’ in the context of an unfair dismissal, was explained in the oft-quoted passage from Byrne and Frew v Australian Airlines Ltd (1995) 185 CLR 410 where McHugh and Gummow JJ said at para 128:

‘128. Clause 11(b) is aimed at the situation where the termination of employment brought about by the dismissal, rather than the steps leading up to the dismissal, or lack of them, is harsh, unjust or unreasonable. A dismissal with notice may be harsh, unjust or unreasonable because it is based on a ground defined as such by cl 11(b). This refers to such matters as termination "on the ground of" race, colour, sex and marital status. It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.’ (my emphasis)

[67] I turn now to consider whether the applicant’s conduct was a valid reason for her dismissal – a significant matter under s 387 of the Act.

[68] The meaning of ‘valid reason’ in s 387(a) is drawn from the judgement of North J in Selvachandran. This meaning has been considered and applied by members of the Commission and its predecessors for many years. For example, in Rode v Burwood Mitsubishi Print R4471, a Full Bench of the then Australian Industrial Relations Commission (‘AIRC’) discussed the meaning of valid reason in the context of the relevant provisions of the Workplace Relations Act 1996, and by citing Selvachandran. The following is an extract from the Full Bench’s decision at [17]-[19]:

‘[17] In relation to the meaning of “valid reason” the following remarks of Northrop J in Selvachandran v Peteron Plastics Pty Ltd are relevant:

“Section 170DE(1) refers to a ‘valid reason, or valid reasons’, but the Act does not give a meaning to those phrases or the adjective ‘valid’. A reference to dictionaries shows that the word ‘valid’ has a number of different meanings depending on the context in which it is used. In The Shorter Oxford Dictionary, the relevant meaning given is: ‘2. Of an argument, assertion, objection, etc; well founded and applicable, sound, defensible: Effective, having some force, pertinency, or value.’ In The Macquarie Dictionary the relevant meaning is ‘sound, just or wellfounded; a valid reason’.

In its context in s 170DE(1), the adjective ‘valid’ should be given the meaning of sound, defensible or wellfounded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must `be applied in a practical, commonsense way to ensure that’ the employer and employee are each treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd, when considering the construction and application of a s 170DC.”

[18] While Selvachandran was decided under the former statutory scheme the above observations remain relevant in the context of s.170CG(3)(a). A valid reason is one which is sound, defensible or well founded. A reason for termination which is capricious, fanciful, spiteful or prejudiced is not a valid reason for the purpose of s.170CG(3)(a).

[19] We agree with the appellant’s submission that in order to constitute a valid reason within the meaning of s.170CG(3)(a) the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts. It is not sufficient for an employer to simply show that he or she acted in the belief that the termination was for a valid reason.’

See also: Nettleford v Kym Smoker Pty Ltd (1996) 69 IR 370.

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) – s 387(a)

[69] There is ample evidence (largely not challenged by the applicant) that the DAIWS Board and management introduced new workplace staffing arrangements to address the casualisation of the organisation and its poor outcomes for staff morale and discontent by moving towards a more permanent workforce. In my view, this was a sensible and defensible decision, which on Ms Bobongie’s evidence has produced the desired outcomes; see: [19] above.

[70] Similarly, there is no doubt the applicant was aware of the changes, given her attendance at the various relevant staff meetings. Further, she had at least three opportunities to apply for permanent positions, which for reasons not immediately apparent to me, she chose not to do. It is safe to assume the applicant preferred the casual work and its flexibilities. However, this was not the direction DAIWS was heading. Given my acceptance of the evidence of Ms Bobongie as to the meeting with the applicant on 18 October 2019, it was inevitable that the two competing imperatives could not be reconciled. Accordingly, I am satisfied that the dismissal of the applicant was for a valid reason, in the sense the decision (albeit procedurally unfair) was sound, defensible, explicable and well-founded.

[71] A not dissimilar set of circumstances was recently considered by Commissioner McKinnon in Madden v Ultra Tune Australia Pty Ltd [2020] FWC 4036, in which the Commissioner found valid reasons for dismissal, but nevertheless found the dismissal procedurally unfair. At [18]-[21] and [26], the Commissioner said:

‘[18] I find that there were two reasons for dismissal – firstly, Mr Madden’s reluctance to engage directly with franchisees by training them in the use of the Salesmate for Windows program and secondly, his contribution as National Training Manager to the failed launch of the program. These were both valid reasons for dismissal related to Mr Madden’s capacity and conduct. They weigh against a finding of unfair dismissal.

Were the reasons notified to the employee?

[19] Mr Madden was not told the reasons for his dismissal. Mr Buckley told Mr Cott to finish him up and he followed the instruction straight away, despite feeling rattled about it. He told Mr Madden he had to “finish him up” as a “cost reduction measure.” This weighs in favour of a finding of unfair dismissal.

Was there an opportunity to respond to any capacity or conduct related reason, or any warnings?

[20] Mr Madden had discussed the importance of the success of the program with Mr Cott including that “heads could roll” if it failed. There was pressure on them both to get the program working correctly. Mr Cott spoke to Mr Madden a few times after the launch about the need to “get this done because there are so many issues”, saying things like “all our jobs are on the line here mate”. This weighs against a finding of unfair dismissal.

[21] However, Mr Madden was never given any actual counselling or warnings about his performance in the role of National Training Manager. No allegations were formally put to him and there was no discussion or opportunity to respond to the allegations before the dismissal took effect. This weighs in favour of a finding of unfair dismissal.

…

[26] On balance, I am satisfied that even though there were valid reasons for his dismissal, the process adopted by Ultra Tune rendered the dismissal of Mr Madden unreasonable in the circumstances. It was an unfair dismissal.’

Further matters to be considered under s 387 of the Act

[72] Subsections (b)-(e) of s 387 are generally grouped under the rubric of ‘procedural fairness’ or ‘natural justice’ issues. To highlight the importance of procedural fairness issues, I cite three authorities on the subject in unfair dismissal cases. In Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport (2000) 98 IR 137 a Full Bench of the AIRC said at [73]:

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

[73] In Wadey v YMCA Canberra [1996] IRCA 568, Moore J made clear that an employer cannot merely pay ‘lip service’ to giving an employee an opportunity to respond to allegations concerning an employee’s conduct. His Honour said:

‘In my opinion the obligation imposed on an employer by that section has, for present purposes, two relevant aspects. The first is that the employee must be made aware of allegations concerning the employee's conduct so as to be able to respond to them. The second is that the employee must be given an opportunity to defend himself or herself. The second aspect, the opportunity to defend, implies an opportunity that might result in the employer deciding not to terminate the employment if the defence is of substance. An employer may simply go through the motions of giving the employee an opportunity to deal with allegations concerning conduct when, in substance, a firm decision to terminate had already been made which would be adhered to irrespective of anything the employee might say in his or her defence. That, in my opinion, does not constitute an opportunity to defend.’

[74] Nevertheless, procedural fairness steps should be applied in a common-sense and practical way. In Gibson v Bosmac Pty Ltd (1995) 60 IR 1, Wilcox CJ said at [7]:

‘Ordinarily, before being dismissed for reasons related to conduct or performance, an employee must be made aware of the particular matters that are putting his or her job at risk and given an adequate opportunity of defence. However, I also pointed out that the section does not require any particular formality. It is intended to be applied in a practical, commonsense way so as to ensure that the affected employee is treated fairly. Where the employee is aware of the precise nature of the employer's concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements of the section.’

Whether the person was notified of that reason – s 387(b)

[75] The applicant was notified of her dismissal on 1 November 2019, which took effect after the last shift she worked on 18 November 2019. This is a neutral factor in this case.

Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person – s 387(c)

[76] For the reasons expressed earlier, I am not satisfied that the applicant was provided with a reasonable opportunity to respond to the dismissal and given an opportunity to reconsider her limited shift availability. In my view, it was incumbent on Ms Bennett, particularly after the applicant’s reply on 8 November 2019, to at least confirm the nature of the applicant’s conversation with Ms Bobongie, but more importantly, give her an opportunity to reconsider her position in light of its dire ramifications.

[77] While such an opportunity might not have made any difference, that is not the point or what is required by s 387(c) of the Act. It is also relevant that the applicant worked a number of shifts after the letter of 1 November 2019, where it would have been open for Ms Bennett to meet with her during work time. It was seem the organisation was content with the applicant working after being told she was no longer required, but took no steps to meet with her, when it was clearly convenient to do so.

[78] This factor tells in favour of a finding of procedural unfairness.

Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal – s 387(d)

[79] As there was no meeting with Ms Bennett, there was obviously no unreasonable refusal by the employer to allow the applicant to have a support person present at any discussions relating to her dismissal. This is a neutral factor in this case.

If the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal – s 387(e)

[80] There was no evidence that the applicant had a poor performance record; indeed, the contrary was true. Both Ms Bennett and Ms Bobongie gave evidence that the applicant was a good worker, who had no performance or behavioural issues. This criterion is not relevant.

The degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal – s 387(f); and 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 – s 387(g)

[81] Although the respondent is not a small business, it is not a large employer, with 30 employees at the time (now 15). It is obvious the respondent does not have dedicated human resource management specialists. The respondent was represented by the Chamber of Commerce NT in the proceedings. However, it was not apparent to me whether the respondent sought advice from the Chamber at the relevant time from 18 October 2019 to 18 November 2019. That said, I would be surprised if an experienced employer organisation would not have recommended Ms Bennett at least have a meeting with the applicant to discuss the ramifications of her shift availability.

Any other matters that the FWC considers relevant – s 387(h)

[82] The applicant worked for DAIWS for nearly four years, albeit with two lengthy periods when she was not available. There was no evidence that the applicant has sought alternative employment and although I accept she has experienced much distress and hurt, perhaps arising from her dismissal, I have no detailed medical evidence of her psychological condition or prognosis.

[83] I have taken into account the applicant’s period of service which was neither short nor lengthy. It is trite that the present COVID-19 pandemic has limited many opportunities for obtaining alternative employment. However, there was no evidence that the applicant had been applying for work, either as a support worker, or in some other role, or that she had attended any interviews. These matters tell against a finding of unfairness.

[84] For the aforementioned reasons, and in weighing all of the matters the Commission is required to take into account under s 387 of the Act, I am satisfied, albeit on a fine balance, that the applicant’s dismissal was ‘unreasonable’, on the grounds of a denial of procedural fairness, and was therefore unfair.

Appropriate remedy

[85] The remedies for an unfair dismissal are set out at s 391 of the Act as follows:

391 Remedy—reinstatement etc.

Reinstatement

(1) An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:

(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or

(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

(1A) If:

(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and

(b) that position, or an equivalent position, is a position with an associated entity of the employer;

the order under subsection (1) may be an order to the associated entity to:

(c) appoint the person to the position in which the person was employed immediately before the dismissal; or

(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

Order to maintain continuity

(2) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to maintain the following:

(a) the continuity of the person’s employment;

(b) the period of the person’s continuous service with the employer, or (if subsection (1A) applies) the associated entity.

Order to restore lost pay

(3) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.

(4) In determining an amount for the purposes of an order under subsection (3), the FWC must take into account:

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

(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.”

[86] I am not satisfied that reinstatement of the applicant is appropriate, given the changed profile of the respondent’s workforce, and she now does not seek it. I turn to whether any compensation should be ordered. The methodology for determining the amount of compensation is set out at s 392 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.”

[87] The above methodology was discussed in Sprigg v Paul’s Licensed Festival Supermarket (1998) 88 IR 21 and has since been described in shorthand as the Sprigg Formula. I will make findings as to the components of s 392 as follows.

The effect of the order on the viability of the employer’s enterprise – s 392(a)

[88] There is no evidence of any deleterious effect on the viability of the respondent’s enterprise. Given the order I intend to make, I do not consider there would be such an effect on the employer’s viability.

The length of the person’s service with the employer – s 392(b)

[89] As mentioned earlier, the applicant’s period of service was neither short nor lengthy. It was a reasonable period of service.

The remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed – s 392(c)

[90] Given the restructuring of the respondent’s workforce, I am satisfied that the applicant would have only worked limited casual shifts for a further five weeks over the Christmas/New Year period when it was likely more shifts may have been available when other employees took leave over this popular leave period.

The efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal – s 392(d)

[91] Although there was no evidence of deliberate efforts of the applicant to mitigate the loss she suffered because of her dismissal, I am prepared to treat this as a neutral consideration.

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 – s 392(e); and 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 – s 392(f)

[92] I accept the applicant has not received any remuneration from employment, or other work since her dismissal. Subsection (f) is not relevant.

Any other matter that the FWC considers relevant – s 392(g)

[93] There are no other matters I consider relevant.

CONCLUSION

[94] Having taken into account all of the relevant matters in s 392 of the Act, I am satisfied that an order of compensation of five weeks’ pay should be made in this case. There is an obvious difficulty in assessing the weekly rate of pay of the applicant, given her casual status. I have decided to adopt an average of her fortnightly pay in the six months prior to 18 November 2019. This can be assessed by reference to the applicant’s payslips, helpfully tendered in her case. In doing so, I arrive at an average figure of 42.5 hours a fortnight x $33.66 an hour = $1,430.55 a fortnight or $715.275 a week. Therefore, the order will be:

$715.275 x 5 weeks = $3,576.38

[95] There is no consideration in this amount by way of shock, distress, humiliation or other analogous hurt (s 392(4)).

[96] The compensation cap is plainly not exceeded in this case. Subsections 5 and 6 of s 392 are therefore satisfied.

[97] For the abovementioned reasons, I am satisfied the applicant’s dismissal was ‘unreasonable’, being procedurally unfair and an order for the payment of compensation equivalent to five weeks’ pay should be made. Accordingly, I propose to order an amount of $3,576.38 be paid to the applicant by the respondent.

[98] Finally, s 381(2) of the Act is a significant overarching object of Part 3-2 – Unfair Dismissal of the Act. It reads:

(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a "fair go all round" is accorded to both the employer and employee concerned.

[99] The outcome I have determined in this case is consistent with the object of Part 3-2 of the Act of providing a ‘fair go all round’ to both the applicant and the employer.

[100] This matter is now concluded. An order for compensation of $3,576.38 will be published contemporaneously with this decision.

DEPUTY PRESIDENT

Appearances:

The applicant appeared for herself on 31 March 2020. No appearance for the applicant on 29 April 2020.

Mr R Perry, Senior Workplace Relations Advisor, Chamber of Commerce NT, for the respondent.

Hearing details:

2020.

Sydney/Darwin (by Telephone):

31 March and 29 April.

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