[2022] FWC 2398
The attached document replaces the document previously issued with the above code on 9 September 2022.
Respondent’s name has been amended.
Associate to Deputy President Boyce
Dated 12 September 2022
| [2022] FWC 2398 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Aadeela Natasha Raffie
v
Allied Express Transport Pty Ltd
(U2022/983)
DEPUTY PRESIDENT BOYCE |
SYDNEY, 9 SEPTEMBER 2022 |
Application for an unfair dismissal remedy — Applicant summarily dismissed via text message for alleged desertion of employment – Applicant’s salary unilaterally reduced by $20,000 per annum shortly prior to her dismissal - Applicant did not desert her employment – no valid reason for dismissal – no procedural fairness - dismissal harsh, unjust and unreasonable – reinstatement inappropriate – award of compensation appropriate remedy - matter to be relisted prior to determination of compensation amount to be awarded.
[1] Ms Aadeela Natasha Raffie (Applicant) has filed a Form F2 application (Application) for an unfair dismissal remedy with the Fair Work Commission (Commission) alleging that she was unfairly dismissed (within the meaning of s.385 of the Fair Work Act 2009 (Act)) by her former employer, Allied Express Transport Pty Ltd (Respondent).
[2] By way of its Form F3 Employer Response, the Respondent says that the Applicant was summarily dismissed for “serious misconduct”, and otherwise denies that the Applicant was unfairly dismissed.
[3] At the hearing, the Applicant appeared for herself, and Ms Renae Kumar, of Counsel, instructed by Ms Brook Pendlebury, Principal Solicitor, Pendlebury Workplace Law, appeared with permission on behalf of the Respondent.
[4] The Applicant relies upon her witness statement dated 20 April 2022, 1 and the documents attached to her Application.
[5] The Respondent relies upon the:
(a) Affidavit of Ms Michelle McDowell, Managing Director, sworn 9 May 2022; 2
(b) Witness Statement of Mr Colin McDowell, Chief Executive Officer, undated; 3
(c) Witness Statement of Ms Mellissa Landon, National Call Centre Manager, dated 9 May 2022; 4 and
(d) Witness Statement of Ms Betty Zhang, General Manager - Distribution. 5
[6] The Respondent also relies upon a bundle of documents, 6 and its submissions dated 9 May 2022.
[7] Based upon the evidence relied upon by both parties at the hearing, I make the findings of fact set out in the paragraphs that follow.
[8] The Applicant commenced employment with the Respondent on 26 November 2007. 7
[9] The Applicant signed (entered into) a written contract of employment with the Respondent dated 19 January 2017 (executed 6 March 2017) (Employment Contract). 8 I note that the Respondent has also filed a further unsigned employment contract dated 18 July 2017, which is not materially different to the terms contained in the Employment Contract.9
[10] On or about 18 July 2017, the Applicant was appointed to the role of NSW Call Centre or Customer Service Manager in Sydney (CCM role). 10 The CCM role essentially encompassed being in-charge of the Respondent’s call centre.11
[11] On 24 December 2021, the Applicant did not attend for work at her usual commencement time, nor did she give notice of her non-attendance. Mr McDowell’s evidence is that after attempts were made to contact the Applicant by telephone without success, Ms Jacqueline Hamad (who did not give evidence in the proceedings), National Customer Service Manager, telephoned the Applicant’s mother (as an emergency contact) to ascertain the Applicant’s whereabouts and circumstances. Unable to make contact with the Applicant herself, the Applicant’s mother then asked her son (the Applicant’s brother) to physically check-in upon the Applicant at her home. In doing so, the Applicant’s brother discovered that the Applicant was asleep. 12
[12] At around 10.00am on 24 December 2021, the Applicant telephoned Ms Hamad and advised her that she had a sore back and had taken two Endone (opioid) tablets for the pain the evening prior, causing her to sleep in. She advised Ms Hamad that she would attend for work later in the day, but would be slow, and could not rush due to her on-going back pain. In a further telephone conversation at around 12.30pm, the Applicant advised Ms Hamad that she would not be coming to work that day as she could not move due to back pain. 13 During yet a further telephone conversation, Ms Hamad telephoned the Applicant and advised her that she was being demoted from the CCM role to an Investigator role, and that her salary was to be reduced from $85,000 per annum to $65,000 per annum. Despite the Applicant’s protestations over the telephone to Ms Hamad, she was advised by Ms Hamad that the demoted role and reduced salary would apply.14
[13] Between 4.30pm and 5.00pm on 24 December 2021, a courier arrived at the Applicant’s home with a letter (in duplicate) from the Respondent (Demotion Letter). The courier requested that the Applicant keep one copy of the Demotion Letter, and sign the other copy of the Demotion Letter (for return to the Respondent). The letter reads:
“Dear Natasha Raffie
As per our discussion this morning, this letter is to confirm that you have been demoted to Investigator Position in the call centre effective immediately.
On your return from annual leave, you will be placed into AOE Investigations ie: Tuesday 4th January 2022.
Your new package will be $65,000.
Regards
Jacqueline Hamad
National Customer Service Manager
Please sign to acknowledge” 15
[14] The Applicant refused to sign the Demotion Letter, on the basis that she (in her lay opinion) considered her demotion and salary reduction illegal, and the courier left the Applicant’s home (without a copy of the Demotion Letter signed by the Applicant).
[15] Prior to receipt of the Demotion Letter, the Applicant was on a salary of $85,000 per annum (including superannuation). 16 In other words, the Demotion Letter, reducing the Applicant’s annual salary to $65,000, represented a unilateral reduction (or downward variation) of the Applicant’s salary (and the entitlements calculated pursuant to same) of $20,000 per annum (or -23.5 percent). The Demotion Letter also had the practical effect of unilaterally varying the Applicant’s role, duties, responsibilities and job title.
[16] Given that the Applicant was on leave until 4 January 2022, the Applicant considered that the Demotion Letter (received by her on 24 December 2021) might simply be an angry flourish or emotional brain-snap by the Respondent’s management, and determined to “stay sensible” and see what she would be paid upon her return to work. Indeed, her pay for her annual leave (for the period up until 4 January 2022), 17 remained at her normal $85,000 per annum rate of pay.18
[17] The Applicant returned to work on 4 January 2022.
[18] On 5 January 2022, the Applicant requested that she be permitted to withdraw $450 from her Christmas Club Savings (CCS) on the basis that her partner was unemployed due to the COVID-19 pandemic, and that they were both surviving on the Applicant’s single income. The Respondent provides employees with a CCS arrangement whereby employees can agree to put some of their salary aside (held by the Respondent) to be withdrawn at Christmas each year. Mr McDowell refused the Applicant’s CCS withdrawal request, but offered the Applicant the opportunity to cash-out 66 hours of her annual leave accruals, which she agreed. 19 I am not in a position to determine (and it is not my role to determine) whether or not this annual leave cash-out occurred in compliance with the applicable modern award and/or s.92 of the Act, nor am I in a position to determine whether the Respondent’s CCS arrangements comply with s.542 and/or Division 2 of Part 2-9 of the Act (concerning the payment of wages and authorised deductions). It is, however, agreed that the annual leave hours that were cashed out to the Applicant were only paid to her at her reduced (or demoted) rate of $65,000 per annum,20 and it is apparent from the Applicant’s termination payslip that the Applicant had very limited annual leave accruals at the time the annual leave cash-out arrangement was effected.
[19] On 6 January 2022, Mr McDowell requested that Ms Landon offer the Applicant the AOE First Call Resolution role (AEOFCR role) on a salary package of $65,000, with a potential to earn up to $75,000 per annum based upon attendance and performance. 21 At best, the AOEFCR role was $10,000 or (-11.8 percent) less than what the Applicant had been paid in the CCM role (before her demotion). The Applicant’s response to the offer was that she did not know whether she wished to take up the AOEFCR role. After being made aware of this, Mr McDowell approached the Applicant and stated “this is not a discussion, but a yes or no answer, Natasha”.22 The Applicant was given around ten minutes to decide if she would accept the AEOFCR role.23 Shortly after this, the Applicant went to the bathroom. She then approached Ms Landon, crying and upset, and stated, “I am going to the doctors”, and left the workplace.24
[20] Ms Landon left a message with the “PA” [personal assistant] (to Mr and/or Ms McDowell) advising that the Applicant had left the workplace because she was going to the doctors. 25
[21] Immediately subsequent to leaving the building, Ms McDowell and the Applicant engaged in the following telephone text message exchange:
Ms McDowell: “You have walked out and deserted your employment. After many warning letters on your file. You have now been dismissed.”
Applicant: “I was yelled at on the floor, and humiliated in front of all radio room staff. I was forced to make decision on the spot. I suffered a massive panic attack after the way I was treated. I went to the bathroom feeling sick. I vomited whilst in tears. I advised my immediate manager I am unwell and going to the doctors.”
Ms McDowell: “We dispute you were yelled at. We were only trying to help your financial position, as you had asked us for money yesterday”. 26
[22] The Applicant was not provided with, or paid, any notice of termination. Her termination pay was paid at the annual salary rate of $65,000 (not $85,000), 27 and $2,000 was deducted from the Applicant’s pay without her authorisation. The Respondent says that the $2,000 deduction reflects a bonus that was previously paid to the Applicant, that the Respondent no longer considered the Applicant was worthy of or entitled to, so the Respondent took it back from the Applicant’s termination pay28. I am not in a position to determine (and it is not my role to determine in these proceedings) whether the actions of the Respondent, in respect of the Applicant’s termination pay, comply with the applicable modern award, the NES (in relation to annual leave termination and notice of termination payments), s.542 and/or Division 2 of Part 2-9 of the Act (concerning the payment of wages and authorised deductions).
[23] Section 385 of the Act qualifies a claim for unfair dismissal:
“385 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”.
[24] The parties are not in dispute as to the following:
(a) The unfair dismissal application was made within the period required by s.394(2) of the Act.
(b) The Applicant is a person protected from unfair dismissal within the meaning of s.382 of the Act.
(c) The Applicant was “dismissed” by the Respondent within the meaning of s.386 of the Act.
(d) The Small Business Fair Dismissal Code (as provided for in s.388 of the Act) does not apply.
(e) The Applicant’s dismissal was not a case of genuine redundancy within the meaning of s.389 of the Act.
[25] I accept and make findings consistent with the foregoing position of the parties.
[26] Section 387 of the Act provides what matters must be taken into account in determining whether a dismissal was harsh, unjust or unreasonable.
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant”.
[27] The terms “harsh”, unjust” and “unreasonable” are to be given their ordinary meaning.
[28] An employer bears the persuasive onus of establishing that there was a valid reason for an employee’s dismissal. 29
[29] In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”, and should not be “capricious, fanciful, spiteful or prejudiced”. 30 Further, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.31
[30] Where the dismissal relates to conduct, the reason for dismissal may be valid because the conduct occurred and justified dismissal. However, the reason may not be valid because the conduct did not occur, or it did occur but did not justify dismissal. 32 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.33 The onus of proof in relation to misconduct rests with an employer, and the standard of proof is based upon the balance of probabilities (the more serious an allegation, the higher the burden upon an employer to prove that allegation).34
[31] Where a dismissal relates to capacity (i.e. where the reason is associated or connected with the ability of the employee to do the job), 35 and there is a dispute as to an employee’s requisite capacity, it is for the Commission to resolve that dispute as a matter of fact.36
[32] The Respondent submits that there was a valid (conduct) reason for the Applicant’s dismissal. In this regard, the Respondent submits:
(a) The Applicant walked out of the Respondent’s workplace on 6 January 2022 and “did not provide any details [to the Respondent or its relevant employees] of her being unwell, did not seek permission to leave the workplace, and did not advise [anyone] when she would return [to work]” (Desertion Reason). The Respondent says that the Desertion Reason is a valid reason for the Applicant’s dismissal. The Respondent further submitted that the focus is not upon whether the “reason given” by the Respondent, at the time or after the Applicant’s dismissal occurred, was a valid reason, but whether or not (in all of the circumstances of the case) there existed a valid reason for the Applicant’s dismissal on the evidence before the Commission. 37 In other words, irrespective of what the Respondent (through Mr and/or Ms McDowell) may have previously (including erroneously) expressed as being the reason for the Applicant’s dismissal, the Commission should find (on the basis of the evidence before the Commission) that the Desertion Reason is a ‘valid reason’ for the Applicant’s dismissal.38
(b) The Desertion Reason constituted “serious misconduct, particularly in the context of [the Applicant’s] previous absenteeism and performance issues”. 39
(c) The Applicant’s claims that she needed to remove herself from the workplace on 6 January 2022, because Mr McDowell was yelling or screaming at her are not sustained on the evidence. Relevantly, the Applicant’s justification for leaving the workplace on 6 January 2022 (on the basis that she was being yelled or screamed at) is not a basis upon which the Desertion Reason is to be undermined, or otherwise found to be an invalid reason for the Applicant’s dismissal, because the evidence is that the Applicant was not yelled or screamed at on 6 January 2022. 40
[33] I reject the Respondent’s core contention that the Applicant deserted her employment on 6 January 2022. In doing so, I equally reject that the Desertion Reason was a valid reason for the Applicant’s dismissal. Having regard to all of the relevant facts and circumstances, I make the following findings and conclusions:
(a) The Applicant was unilaterally demoted from the CCM role to the AOE role on 24 December 2021. As part of the demotion, the Applicant’s annual salary was unilaterally reduced from $85,000 to $65,000.
(b) On any view, the Demotion Letter represented a substantial change to the terms and conditions of the Applicant’s employment with the Respondent, being a substantial change that the Applicant neither authorised, nor agreed to (as evidenced by the Applicant’s refusal to sign the Demotion Letter when presented with it by the Respondent’s courier on 24 December 2021).
(c) Based upon the evidence tendered in these proceedings, including the terms of the Employment Contract, there is no foundation to the Respondent’s contention that it had a right, express or implied, to unilaterally demote the Applicant and/or reduce her salary by $20,000 per annum. 41 Whatever be the conduct of the Applicant on 24 December 2021, such conduct in no way entitled the Respondent to unilaterally demote the Applicant, or reduce her annual salary. That said, the evidence of the Applicant is that she slept in on 24 December 2021 as a result of the effect of Endone tablets taken for the back pain that she had been experiencing. This evidence was not challenged by the Respondent in cross-examination. Nor was it submitted by the Respondent that it was in fact “practicable” (in all the circumstances) for the Applicant to have notified it of her absence on 24 December 2021, prior to the start of her normal working time that day (i.e. the Applicant had slept in on 24 December 2021, apparently, at least in part, due to back pain and the effects of the medication (Endone) she had taken for same).42
(d) At no time did the Applicant accept the demotion, or the reduction in her annual salary. More specifically, I reject the Respondent’s contentions that the Applicant, by her actions or conduct, somehow accepted the demotion and/or salary reduction (whether that be by reference to the Applicant returning to work from annual leave on 4 January 2022, sitting or not sitting in a particular chair, starting work at 7.30am as opposed to 8.30am, questioning or not questioning her annual leave cash-out payment, and/or in doing whatever work she was assigned by the Respondent to do at the workplace from 4 January 2022). 43 I accept the Applicant’s evidence that she did not consider herself to be in a position to openly dispute her demotion or salary reduction prior to or post her returning to work on 4 January 2022 (i.e. beyond her actions in verbally disputing same with Ms Hamad over the telephone on 24 December 2021, and in refusing to sign the Demotion Letter for return to the Respondent by its courier on 24 December 2021). I also take into account the Applicant’s evidence that she did not consider herself to have actually been demoted (legally, or practically),44 however, became aware that the Respondent was implementing its unilateral demotion of her when she went to sit down at her desk on 4 January 2022 (and found Ms Landon sitting in her office chair, presumably having been directed to do so by Mr or Ms McDowell).45
(e) The Respondent’s demotion of the Applicant, and its reduction of her salary, were substantial and serious breaches of the Employment Contract, which the Applicant was not obliged to accept. Rather, in my view, the Applicant had every right to insist that the terms of the Employment Contract be maintained (i.e. as in place immediately before the Respondent’s purported demotion and salary reduction on 24 December 2021).
(f) I accept the evidence of the Applicant that she was confused and uncertain about accepting the AEOFCR role, as offered to her on 6 January 2022, and that she harboured a concern (or fear) that in accepting the AEOFCR role, she may prejudice her ability to subsequently challenge the demotion and salary reduction that was unilaterally imposed upon her on 24 December 2021. 46 I equally accept the Applicant’s evidence that requiring her to give a yes or no answer to the AEOFCR role, in the space of only around ten minutes, absent any ability for her to obtain advice about such a decision, gave rise to a level of anxiety and panic on her part, culminating in her being upset, crying, attending upon the toilet to be physically ill, and thereafter advising Ms Landon that she did not consider herself to be in a state to remain at the workplace, and was leaving work immediately to go to the doctor.47
(g) I reject that the Applicant leaving work on 6 January 2022, after advising Ms Landon that she was going to the doctor, 48 gave rise to a valid reason for dismissal because the Applicant “did not provide any details [to the Respondent or its relevant employees] of her being unwell, did not seek permission to leave the workplace, and did not advise [anyone] when she would return [to work]”. In my view, in the facts and circumstances of this case, these matters do not provide a sound, defensible or well-founded reason for the Applicant’s dismissal. Rather, in all of the circumstances, such matters are more appropriately classified as attempting to ground a capricious and spiteful reason for the Applicant’s dismissal.49
(h) Whilst the evidence supports the Respondent’s contention that Mr McDowell did not scream, yell or raise his voice in his interactions with the Applicant on 6 January 2022, the matter is of little moment. It in no way alters the position that the Applicant had been placed in on 6 January 2022, whereby she had to decide (within the space of around ten minutes) whether or not she wished to accept the AEOFCR role (having come to realisation that the Respondent was indeed carrying through on its promise to unilaterally demote and reduce her salary). Whether or not there was yelling and screaming, the undisputed evidence is that the Applicant was upset and crying as a result of the predicament she had been placed in, and decided that it would be in her best interest to remove herself from the workplace and attend upon her doctor. 50
[34] I find that there was no valid reason to dismiss the Applicant from her employment. This leans toward a finding that the Applicant’s dismissal was harsh, unjust and unreasonable.
[35] Proper consideration of s.387(b) of the Act requires a finding to be made as to whether the Applicant “was notified of that reason” and given an opportunity to respond to same.
[36] Contextually, the reference to “that reason” is the valid reason found to exist under s.387(a) of the Act. 51 Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment, and in explicit, plain and clear terms.52
[37] In order to be given an opportunity to respond for the purposes of s.387(c), the employee must be made aware of allegations concerning the employee’s conduct so as to enable them to respond to the allegations and must be given an opportunity to defend themselves. As Justice Moore has stated in Wadey v YMCA Canberra 53:
“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… does not constitute an opportunity to defend.” 54
[38] Given my finding that the reason relied upon by the Respondent to dismiss the Applicant is not a valid reason, I treat the criteria under ss.387(b) and (c) of the Act as neutral considerations in determining whether the Applicant’s dismissal was harsh, unjust or unreasonable.
[39] I note that even if it were to be accepted by me that the Desertion Reason relied upon by the Respondent to dismiss the Applicant from her employment was a valid reason for her dismissal for the purposes of s.387(a) of the Act, given that Ms McDowell summarily dismissed the Applicant via text message immediately after she left the workplace on 6 January 2022, I would find that the Respondent has not complied (at all) with ss.387(b) and (c) of the Act. These being findings that would weigh in favour of an ultimate conclusion that the Applicant’s dismissal was harsh, unjust and unreasonable.
[40] As noted by a Full Bench of this Commission, “[t]he subsection is not concerned with whether or not the employee was informed that he or she could have a support person present”. 55
[41] There were no submissions made by either party regarding s.387(d) of the Act. I therefore consider this criterion as a neutral consideration in determining whether the Applicant’s dismissal was harsh, unjust or unreasonable.
[42] A warning for the purposes of s.387(e) of the Act must clearly identify:
• the areas of deficiency in the employee’s performance;
• the assistance or training that might be provided;
• the standards required; and
• a reasonable timeframe within which the employee is required to meet such standards. 56
[43] In addition, the warning must “make it clear that the employee’s employment is at risk unless the performance issue identified is addressed.” 57 In order to constitute a warning for the purposes of s.387(e), it is not sufficient for the employer merely to exhort their employee to improve their performance.58
[44] As the Applicant’s dismissal did not relate to unsatisfactory performance (i.e. it concerned her ‘conduct’ on 6 January 2022), this factor is not relevant to the present circumstances.
[45] The Respondent employs some 300 employees. There is no evidence to suggest that the size of the Respondent’s enterprise likely impacted upon the procedures it followed in effecting the Applicant’s dismissal.
[46] The absence of a dedicated human resource management specialist does not relieve an employer of extending an appropriate degree of courtesy to its employees “even when implementing something as difficult and unpleasant as the termination of a person’s employment”. 59
[47] Neither party put forward substantive or relevant submissions that go directly to either of the criterion under ss.387(f) and (g) of the Act. I treat both of these criterion as neutral considerations in this case.
[48] Procedural fairness is one factor that the Commission may take into consideration under s.387(h) of the Act when deciding if a dismissal has been harsh, unjust or unreasonable. It concerns the decision-making process followed or steps taken by a decision maker, rather than the actual decision itself. 60 Ordinarily, procedural fairness requires that an allegation be put to a person and that they be given an opportunity to answer it before a decision is made.61 Further, although s.387(d) of the Act does not require an employer to inform an employee that they may have a support person present, that matter may be relevant in all the circumstances and taken into account under s.387(h).62
[49] In this case there has been a total absence of procedural fairness afforded to the Applicant in effecting her summary dismissal via text message. This weighs towards a finding that the Applicant’s dismissal was unjust and unreasonable.
[50] I have found that not only was there no valid reason for the Applicant’s dismissal, but that the Applicant did not engage in any misconduct when she left the workplace on 6 January 2022. The Respondent’s erroneous assertion that the Applicant engaged in serious misconduct on 6 January 2022, and its failure to provide or pay the Applicant any notice of termination, weighs towards her dismissal being harsh.
[51] It has long been established that the effects of dismissal on the personal or economic situation of the dismissed employee may be taken into consideration under s.387(h) of the Act. 63 The unchallenged evidence is that the Applicant was experiencing financial difficulties at the time of her dismissal, which Ms McDowell (as decision-maker in dismissing the Applicant) was acutely aware of. This weighs towards a finding that the Applicant’s dismissal was harsh.
[52] During cross-examination, Ms McDowell set out various matters that impacted upon her decision to dismiss the Applicant, 64 including the time of year, crucial business decisions that needed to be made, and organising staffing and rosters. Whilst these matters may well explain, from the point of view of the business and Ms McDowell, the decision to dismiss the Applicant, they are not matters, in my view, that weigh towards altering the harsh, unjust and unreasonable dismissal that has been visited upon the Applicant in all of the circumstances of this case.
[53] One of the contentions that the Respondent has made in these proceedings is that the Desertion Reason constituted “serious misconduct, particularly in the context of [the Applicant’s] previous absenteeism and performance issues”. 65 In my view, there are various reasons as to why the Respondent’s evidence as to the Applicant’s alleged absenteeism and performance issues do not weigh against the unfairness of her dismissal, as follows:
(a) Firstly, I have found that the Applicant’s conduct on 6 January 2022 did not amount to misconduct, let alone serious misconduct.
(b) Secondly, it became apparent during the hearing that the warning letter dated 24 December 2021, purportedly relied upon by the Respondent when dismissing the Applicant on 6 January 2022, was never issued to the Applicant. 66
(c) Thirdly, the Applicant was not cross-examined as to the substance behind the two warning letters, and one performance letter, issued by the Respondent to the Applicant in 2021 67 (note also the performance letter dated 23 December 2021).68 In other words, all that was established during cross-examination was that the Applicant received and signed these letters, and did not otherwise object to them. However, the Applicant also gave evidence that she was not in a position to dispute such warning letters.69
(d) Fourthly, the remainder of the warning and performance letters relied upon by the Respondent go back many years (2011, 2013 and 2014), and there is no readily apparent connection between them and the Applicant’s dismissal on 6 January 2022.
(e) Fifthly, the records as to the Applicant’s absenteeism travel no further than identifying that the Applicant had various days off during her period of 15 years employment with the Respondent. In and of themselves, they identify no foundation upon which any findings could be made for the purposes of these proceedings.
[54] I have made findings in relation to each of the criterion specified under s.387 of the Act (as relevant). I have also considered and given due weight to each of the criterion as a fundamental element in determining whether the Applicant’s dismissal was harsh, unjust or unreasonable. 70
[55] In relation to the criterion set out under s.387 of the Act, I have found that:
(a) various criterion weigh in favour of a finding that the Applicant’s dismissal was harsh, unjust and unreasonable; and
(b) other relevant criterion are neutral considerations.
[56] In view of the findings and conclusions set out in this decision, I find that the Applicant’s dismissal was unfair (i.e. harsh, unjust and unreasonable within the ordinary meaning of those terms).
[57] The Applicant does not seek reinstatement, nor do I consider it appropriate given the total breakdown in the employment relationship. The issue of remedy therefore turns to whether compensation should be awarded and, if so, its quantum.
[58] In the facts and circumstances of this case, I consider that an award of compensation to the Applicant to be an appropriate remedy for her unfair dismissal.
[59] 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:
“392 Remedy—compensation
…
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”.
[60] Section 392(6) of the Act sets out the method for calculating the total amount of compensation. It reads:
“(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.”
Calculation of compensation
[61] Evidence was not tendered during the hearing by the Applicant in relation to the matters specified under s.392(d) and (e) of the Act. Nor do I have evidence from the Respondent in relation to the total amount of remuneration specified by s.392(6) of the Act. The matter will therefore be relisted for mention/directions (via separate notice of listing) to enable the parties the opportunity to engage with these matters prior to any order for compensation being made.
DEPUTY PRESIDENT
Appearances:
Ms Aadeela Natasha Raffie (Applicant), appeared for herself.
Ms Renae Kumar, of Counsel, instructed by Ms Brook Pendlebury, Principal Solicitor, Pendlebury Workplace Law, appeared with permission on behalf of the Respondent.
Printed by authority of the Commonwealth Government Printer
<PR745641>
1 Exhibit A1.
2 Exhibit R1.
3 Exhibit R2
4 Exhibit R3.
5 Ms Zhang was not cross-examined during the hearing. Her unsigned witness statement (provided at the hearing) was later supplied, as signed by Ms Zhang, post the conclusion of the hearing.
6 Transcript, PN92-PN96, and Electronic Court Book.
7 Form F3, Item 3.1, at [1].
8 Employment contract supplied by the Respondent on 21 June 2022 (with leave, post the conclusion of the hearing).
9 Ibid.
10 Exhibit R1, at [23].
11 Exhibit R3, at [6].
12 Exhibit R3, at [7]-[9].
13 Exhibit R1, at [49]; Exhibit R3, at [27].
14 Transcript, PN71-PN76, PN160 (Not challenged about back pain).
15 Ibid.
16 Exhibit R3, at [5].
17 Received by the Applicant into her bank account on 30 December 2021.
18 Note Exhibit R1, at [52]; Exhibit R2, at [32].
19 Transcript, PN286-PN288.
20 It appears that the Applicant only became aware that her annual leave was being paid at the reduced rate of $65,000 per annum when she subsequently received her payslip (i.e. not at the time she received the annual leave cash-out payment into her bank account).
21 Transcript, PN309-PN311.
22 Exhibit R2, at [21] and [37]. See also Exhibit R1, at [38]. Transcript, PN491. Exhibit R1, at [38] and [58].
23 As accepted by the Respondent’s Counsel: Transcript, PN684-PN686. See also Transcript PN81, PN340, PN345, PN516,
24 Exhibit R3, at [40]. Transcript, PN79-PN83, PN520-PN521, PN525-PN528, PN536, and PN539.
25 Ibid.
26 Transcript, PN83.
27 Exhibit R2, at [35].
28 Exhibit R1, at [55] and [60]; Exhibit R2, at [39].
29 Allied Express Transport Pty Ltd v Anderson (1998) 81 IR 410, at 412; Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201, at 204.
30 Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333; (2000) IR 371, at 373.
31 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, at 685.
32 Edwards v Justice Giudice (1999) 94 FCR 561; (1999) 169 ALR 89; [1999] FCA 1836, at [7]; Gelagotis v Esso Australia Pty Ltd [2018] FWCFB 6092, at [117]; Titan Plant Hire Pty Ltd v Van Malsen [2016] FWCFB 5520, 263 IR 1, at [28].
33 King v Freshmore (Vic) Pty Ltd Print S4213 [2000] AIRC 1019, at [23] to [24].
34 Briginshaw v Briginshaw (1938) 60 CLR 336; Evidence Act 1995 (Cth), s.140.
35 Crozier v AIRC (2000) 50 AILR 4-488; [2001] FCA 1031, at [14].
36 See more broadly: Jetstar Airways Ltd v Neeteson-Lemkes [2013] FWCFB 9075; CSL Limited v Chris Papaioannou [2018] FWCFB 1005.
37 See also Transcript, PN705, PN731, PN764, PN770-PN772, and PN804.
38 Respondent’s Submissions, 9 May 2022, at [16]-[17]. See also Transcript, PN483 (Mr McDowell says no one knew the Applicant had left the workplace on 6 January 2022), PN587, PN592, PN601, PN603, PN616-PN620 (Ms McDowell explains the reason/s she dismissed the Applicant), PN654-PN657, PN691, PN694, PN705-PN706, PN730-PN731, PN733. Exhibit R1, at [42]; Exhibit R2, at [25] per Mr McDowell: “[the Applicant] then stormed out of the workplace without advising anyone”. I note that Counsel for the Respondent abandoned any suggestion that the Applicant was dismissed for abandonment of employment (or that the Respondent was relying upon abandonment of employment as a reason (or valid reason) for the Applicant’s dismissal): see Transcript, PN706.
39 Respondent’s Submissions, 9 May 2022, at [16]-[17]. See also Transcript, PN648-PN649, PN693, PN733, PN738, PN785, PN789, and PN812-PN815. For the purposes of s.387(a) of the Act, I do not need to deal with the Respondent’s contention that the Applicant’s conduct on 6 January 2022 amounted to “serious misconduct”: see Sharp v BCS Infrastructure Support Pty Ltd [2015] FWCFB 1033, at [33] to [34].
40 Transcript, PN650-PN653, and PN694.
41 Note the express terms of the Employment Contract under the headings “Remuneration”, “Duties”, “Termination”, and “Re-Assignment”, none of which entitle the Respondent to unilaterally reduce an employee’s annual salary. The Respondent’s counsel did not elaborate upon how the demotion and salary reduction would be an implied term of the contractual arrangements between the parties, other than via a fleeting reference to “BC Refinery” (Transcript, PN679), which I understand to be a reference to the case of BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266.
42 See s.107(2)(a) of the Fair Work Act 2009.
43 Transcript, PN224-PN275. See also Exhibits R1 and R2 to the same effect.
44 Transcript, PN251-PN253, and PN267.
45 Transcript, PN272.
46 It appears that the Applicant’s concerns were real, see, for example, evidence of Ms McDowell: Exhibit R1, at [59].
47 The Applicant was not cross-examined as to whether or not she attended her doctor on 6 January 2022.
48 Transcript, PN525-PN528, PN536, and PN539.
49 Note, for example, Transcript, PN361.
50 Transcript, PN338-PN340, PN345
51 Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429, at [19]; Reseigh v Stegbar Pty Ltd [2020] FWCFB 533, at [55]; Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, at 151.
52 Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998). See also Chubb Security Australia Pty Ltd v Thomas Print S2679 (AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 2000), at [41]; Read v Gordon Square Child Care Centre Inc [2013] FWCFB 762 (Acton DP, Deegan C and Gregory C), at [46] to [49].
53 [1996] IRCA 568.
54 Ibid.
55 Jurisic v ABB Australia Pty Ltd [2014] FWCFB 5835, at [84].
56 McCarron v Commercial Facilities Management Pty Ltd t/a CFM Air Conditioning Pty Ltd [2013] FWC 3034, at [32].
57 Fastidia Pty Ltd v Goodwin, Print S9280 (AIRCFB, Ross VP, Williams SDP, Blair C, 21 August 2000), at [43] to [44].
58 Ibid.
59 Sykes v Heatly Pty Ltd t/a Heatly Sports PR914149 (AIRC, Grainger C), at [21].
60 Telstra Corporation v Streeter [2008] AIRCFB 15, at [27].
61 Kioa v West [1985] HCA 81, at [22] (per Wilson J). See also at [11] per Gibbs CJ.
62 Jurisic v ABB Australia Pty Ltd [2014] FWCFB 5835, at [84].
63 Ricegrowers Co-operative v Schliebs PR908351 (AIRCFB, Duncan SDP, Cartwright SDP, Larkin C, 31 August 2001), at [26].
64 Transcript, PN616-PN619.
65 See paragraph [32](b) of this decision and the footnote references thereto.
66 Transcript, PN213-PN219. Zhang Statement, Annexure “BZ-2”. Compare, Exhibit R2, at [12] to [13].
67 Transcript, PN107-PN151. Exhibit R3, Annexures “ML-1”, “ML-2”, and “Ml-4”. Zhang Statement, Annexure “BZ-1”.
68 Zhang Statement, Annexure “BZ-1”.
69 Transcript, PN120-PN122, and PN147.
70 ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, at [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), at [92]; Edwards v Justice Giudice [1999] FCA 1836, at [6] to [7].