Alexis King v D.C Lee & L.J Lyons

[2016] FWC 1664

[2016] FWC 1664

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Alexis King
v
D.C Lee & L.J Lyons
(U2015/12294)

COMMISSIONER JOHNS MELBOURNE, 16 MARCH 2016

Application for Relief of Unfair Dismissal – valid reason – duty to employer – extenuating personal circumstances – termination harsh – compensation appropriate – deduction for contribution by reason of the conduct of the employee.

Introduction

[1] On 15 October 2015 Alexis King (Applicant) made an application to the Fair Work Commission (Commission) pursuant to section 394 of the Fair Work Act 2009 (FW Act) for a remedy in respect of her dismissal by her employer, a law firm the partners of which were D.C Lee and L.J Lyons (Employer/Respondent).

[2] On 4 November 2015 the Employer filed a response to the unfair dismissal application. It denied that the termination of the applicant’s employment was unfair.

[3] The unfair dismissal application was the subject of attempts at conciliation in the Commission, but it remained unresolved. Consequently the matter was listed for hearing on 29 February 2016.

Permission to be represented

[4] At a Directions Hearing on 23 February 2016, the Commission sought submissions from the respondent about whether the Commission should grant permission for it to be represented by a lawyer. A determination of this issue was necessary to ensure that the manner in which any hearing was conducted was fair and just, Warrell v FWC. 1

[5] Mr A Barwick for the respondent submitted that section 596(2)(a) of the FW Act was relevant. Having regard to the materials which had been filed in relation to the matter the Commission as presently constituted, was satisfied that, taking into account the complexity of the matter, it would be assisted in the efficient conduct of the hearing if the respondent was granted permission to be represented by a lawyer. Permission was granted.

[6] At the commencement of the substantive hearing on 29 February 2016 the applicant sought permission to be represented by Ms U Okereke-Fisher. Having previously given permission to the respondent to be represented by a lawyer the Commission, as presently constituted, granted the applicant permission to be represented by a lawyer pursuant to section 596(2)(c) of the FW Act. It would have been unfair not to allow the applicant to be represented taking into account fairness between her and the respondent.

Conference or Hearing

[7] At the Directions Hearing, the Commission also sought submissions from the parties about whether the Commission should conduct either a conference (section 398) or a hearing (section 399) in relation to the matter Taking account:

a) any differences in the circumstances; and

b) the wishes;

of the parties to the matter, and considering whether a hearing would be the most effective and efficient way to resolve to the matter, the Commission, as presently constituted, decided to conduct a determinative conference. This was principally because, at the Directions Hearing, it seemed that the applicant would be self-represented. However, having granted the applicant permission to be represented at the substantive hearing on 29 February 2016 the matter proceeded by way of a hearing rather than a determinative conference.

The hearing

[8] At the hearing Ms Okereke-Fisher called the applicant to give evidence on her own behalf. Ms King had previously filed a witness statement in relation to the matter (Exhibit “A1”). Ms King was cross-examined.

[9] At the hearing Mr Barwick called the two principals of the respondent to give evidence. Mr Lee had previously filed a witness statement in relation to the matter (Exhibit “R1”) as had Ms Lyons (Exhibit “R2”). Both Mr Lee and Ms Lyons were cross-examined. The respondent did not call the former Human Resources Manager, Leslie Owen.

Background

[10] The following matters were either agreed between the parties or not otherwise substantially contested:

a) The respondent is a law firm that provides legal advice and services in several different fields.

b) The applicant commenced employment with the respondent on 15 December 2014.

c) The applicant commenced employment in the role of Associate within the Liability Team.

d) The contract of employment, dated 1 December 2014, included the following terms:

i. “Your responsible Partner will be Lucinda Lyons and you will also report to Dominic Flannery, Special Counsel.”

ii. “Your annual Remuneration Package is … $140,000” 2

iii. “Your employment is subject to a six-month probationary period…”

iv. “Our normal business hours are 9.00am – 5.00pm weekdays.”

v. “You are required to work 38 hours per week plus reasonable additional hours as may be required to properly perform your duties…”

vi. “You are personally responsible for informing your responsible Partner or Human Resources … if you have concerns with your workload. This will enable us to assess the situation and take appropriate action, if necessary.”

vii. “You are entitled to leave in accordance with the Fair Work Act (Cth) 2009.”

viii. “Applications for leave must be made in accordance with our policies as varied from time to time stop.”

ix. “After the successful completion of your probation period, your employment may be terminated by either party giving to the other 4 weeks’ notice in writing.”

x. “As an employee of Lee and Lyons, you have the following obligations;

A. to use your best efforts to promote the development, profitability and interests of Lee and Lyons;

B. to show the utmost good faith and devote the whole of your working time attention to our business; and
C. too honestly, faithfully and diligently perform all reasonable and lawful directions and instructions and all duties which time to time maybe assigned to you.”

e) On 19 December 2014 the applicant was a victim of domestic violence perpetrated by her ex-partner (Domestic Violence Incident).

f) On 23 December 2014 the applicant advised Ms Owen about the Domestic Violence Incident. Mr Flannery was also informed. The applicant never advised Mr Lee or Ms Lyons about the Domestic Violence Incident.

g) In April 2015 a dispute arose between the applicant, her former partner and the purchaser of the property that they once owned together and had sold in February 2015. This necessitated the applicant having to attend to this personal matter during working hours. She says she ordinarily advised her administrative assistant about her whereabouts.

h) On 29 April 2015 the applicant was required to attend a hearing of criminal charges against her former partner arising out of the Domestic Violence Incident. The applicant informed Mr Flannery of her need to attend court.

i) On 28 May 2015 the applicant attended a meeting with Mr Lee where the issue of her timekeeping was raised. It seems uncontested that the applicant’s timekeeping practices improved after this date

j) On 5 June 2015 settlement occurred in relation to the former home that the applicant owned with her former partner. It is evident that the matter had been a major distraction for the applicant, but now the issue of the settlement was at an end.

k) On 10 June 2015 the applicant participated in a performance review meeting with Ms Lyons and Mr Flannery. It was confirmed that there were no issues about the applicant’s technical ability as a lawyer but there were concerns about her ability to meet deadlines. There was also a concern expressed about the need for her to increase her “Face time”.

l) The applicant’s probation period ended on 15 June 2015. The applicant successfully completed her probationary period of employment.

m) On 9 July 2015 the applicant returned to work after a period of sick leave (on 5 and 7 July 2015 in respect of which she provided a Medical Certificate) and had a further meeting with Ms Owen about her attendance in the office. As a consequence the applicant was moved to an office closer to that of Ms Lyons to ensure closer monitoring of her attendance.

n) On 14 July 2015 Ms Owen sent the applicant an email reminding her of the firm’s “open door policy”.

o) On 22 July 2015 the applicant was required to attend the District Court the matters arising out of the Domestic Violence Incident. Because Mr Flannery was on annual leave the applicant sent an email to her assistant explaining her whereabouts. The matter was ultimately adjourned and relisted for 23 September 2015.

p) On 23 July 2015 the applicant met with Ms Lyons about her whereabouts the previous day. Ms Lyons told the applicant that if Mr Flannery was away she must let her know in future about her whereabouts. There is some dispute between Ms Lyons and the applicant about whether the applicant said that the personal matter was at an end. It is unlikely that the applicant would have made that statement in circumstances where it had been adjourned and relisted for 23 September 2015 the previous day. However, I accept from Ms Lyons’ perspective she thought that the applicant had told her that the personal matter was at an end. It explains Ms Lyons’ frustration with the applicant and the action she took against the applicant on 23 September 2015.

q) On 15 September 2015 Mr Lee became concerned about the whereabouts of the applicant. He was concerned that she had left the office at around 3:30pm. It is apparent that the applicant was still working (she was sending emails) after this time, but is not clear whether the applicant was working remotely.

r) On 17 September 2015 the applicant met with Ms Owen about her apparently leaving the office early on 15 September 2015. The applicant was told that Mr Lee was not pleased with her. Ms Owen reminded the applicant that she needed to be present in the office between 9.00 am – 5.00 pm and if she was going out of the office that she needed to let someone know where she was going.

s) On 23 September 2015 the applicant’s former partner was scheduled to have a hearing at the District Court in relation to the Domestic Violence Incident.

t) At 4:56 pm on 22 September 2015 the applicant informed Mr Flannery that she was required to attend the District Court in relation to the Domestic Violence Incident “at 9:30 am (likely to finish at about 11am)” the following day. She wrote “this will be the last time (thankfully) as it should all be resolved tomorrow.”

u) Mr Flannery advised the applicant to “make sure you let HR know.”

v) At 5:05 pm on 22 September 2015 the applicant informed Ms Owen about the Court attendance.

w) The respondent concedes that the applicant was granted an indulgence to attend the District Court the personal reasons on the basis that she would return to the office of the respondent by 11.00 am.

x) It must be that between 5.05 pm and 5.11 pm on 22 September 2015 the applicant was informed by the solicitors acting for her former partner that the District Court matter was unlikely to be heard until 12 noon.

y) At 5:11 pm on 22 September 2015 one of the other lawyers at the firm asked the applicant if she was able to “attend court for a notice of motion for [a partner, David Amentas] tomorrow” (i.e. also on 23 September 2015). The applicant agreed to do so.

z) At 8.45 am on 23 September 2015 the applicant attended for work to prepare for the matter she had taken on for Mr Amentas. At 10.00 am she attended the Supreme Court Equity list in relation to the matter allocated to her by Mr Amentas. Following the conclusion of that matter the applicant attended the District Court in respect of the Domestic Violence Incident matter. That matter concluded at 12:45 pm. The applicant then went to lunch and returned to the office at 2:15 pm.

aa) The applicant did not inform Mr Lee, Ms Lyons, Ms Owen or Mr Flannery about the delay in the District Court matter. None of them were made aware that the applicant would not be returning to the office of the respondent by 11.00am.

bb) As stated above the applicant returned to the office at about 2.15 pm on 23 September 2015, she was summoned to the boardroom where Mr Lee, Ms Lyons and Ms Owen were waiting for her. Mr Lee then informed the applicant that he and Ms Lyons had decided to terminate her employment effective immediately.

cc) At 6.36 pm on 24 September 2015 the applicant sent an email to Mr Lee and Ms Lyons setting out in detail the events of 22 and 23 September 2015. The applicant urged them to reconsider their decision to terminate her employment (to no avail).

[11] The applicant submits she was unfairly dismissed and seeks an Order that she be compensated.

Protection from Unfair Dismissal

[12] An order for reinstatement or compensation may only be issued where the Commission is satisfied the applicant was protected from unfair dismissal at the time of the dismissal.

[13] Section 382 sets out the circumstances that must exist for the applicant to be protected from unfair dismissal. In the present matter the respondent concedes that the applicant had completed a period of employment with it of at least the minimum employment period and that her annual rate of earnings was less than the higher income threshold. In short, the respondent concedes that the applicant was protected from unfair dismissed. 3

[14] There being no dispute about the matter the Commission, as presently constituted, is satisfied the applicant was protected from unfair dismissal.

[15] I will now consider if the dismissal of the applicant by the respondent was unfair within the meaning of the FW Act.

Was the dismissal unfair?

[16] A dismissal is unfair if the Commission is satisfied, on the evidence before it, that all of the circumstances set out at s.385 of the FW Act existed. Section 385 provides the following:

“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.”

Was the applicant dismissed?

[17] A person has been unfairly dismissed if the termination of their employment comes within the definition of “dismissed” for purposes of Part 3–2 of the FW Act. Section 386 of the FW Act provides a definition of the meaning of “dismissed”.

[18] In the present matter the respondent concedes 4 that he terminated the employment of the applicant. Consequently, the commission, as presently constituted, finds of the applicant was terminated at the initiative of the employer within the meaning of s.386 of FW Act.

Was the dismissal consistent with the Small Business Fair Dismissal Code?

[19] A person has not been unfairly dismissed where the dismissal is consistent with the Small Business Fair Dismissal Code (Code). In the present matter the respondent employed around 85 people when it dismissed the applicant. It was not a small business. It does not seek to rely upon the Code. 5

Was the dismissal a genuine redundancy?

[20] The Respondent does not submit that I should dismiss the application because the dismissal was a case of genuine redundancy. 6 Consequently, section 389 of the FW Act is not relevant for present purposes.

Harsh, unjust or unreasonable

[21] Having been satisfied of each of s.385(a),(c)-(d) of the FW Act, the Commission must consider whether it is satisfied the dismissal was harsh, unjust or unreasonable. The criteria the Commission must take into account when assessing whether the dismissal was harsh, unjust or unreasonable are set out at s.387 of the FW Act:

“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.”

[22] The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 at 465 by McHugh and Gummow JJ as follows:

.... 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.

[23] I am under a duty to consider each of these criteria in reaching my conclusion. 7

[24] The applicant submits the dismissal was harsh, unjust or unreasonable because:

a) At no stage was she informed that her performance relevant to meeting deadlines and adhering to client service standards were of a significant enough issue to warrant a dismissal. 8

b) Despite conceding concerns were raised in regards to her lack of attendance during the ordinary business hours of operation; the applicant submits that at no time in raising these concerns did the respondent notify the applicant that her employment was vulnerable to dismissal from the concerns raised. 9

c) The respondent was put on notice of her disadvantageous personal circumstances, which led to issues with her attendance at work. The applicant claimed she made an effort to recover any lost hours by making early starts or staying back late. The respondent’s reliance upon lack of attendance is harsh, unjust and unreasonable as, they were aware of her unfavourable circumstances and there was no warning to the applicant that any future absence would result in a dismissal. 10

d) Despite conceding that on 23 September 2015, between the hours of 11am and 1pm, she was not rendering her service to her employer.  11 The applicant further submits, there was an approval for her to attend personal matters between 9.30am and 11:30am, allowing her 2 hours of pre-approved leave. The rescheduling of the approved leave does not constitute a valid reason for dismissal, notwithstanding the fact that the conduct did occur. 12

e) The applicant was not provided with an opportunity to explain her circumstances. The applicant submits that if this opportunity was provided the respondent may not have arrived at the decision it did. 13

[25] The Respondent submits the dismissal was not harsh, unjust or unreasonable because:

a) There was a valid reason for the termination of the applicant’s employment. 14

b) The applicant’s performance while employed was poor in the respect of; time recording her billable hours, failure to provide updates as to her client management and unexplained absences. 15

c) The applicant, on the 17 of September was given directions to inform someone if she was going to be absent from the office, and on the 23 of September, she neither sought permission or informed her employer. The respondent further submitted, that there is a duty of an employee, namely a solicitor, and the applicant breached this duty by not being in her office, and not devoting the whole of her time and attention to her employer’s business in that period. 16

d) The applicant’s actions in not informing her employer of the rescheduling of her approved hours of leave, is unreasonable in the ordinary sense let alone in the circumstances where the applicant was aware through past conversations and counselling this was an issue she had to address. 17

e) That the conduct of the applicant on the 23 of September 2015 was ‘wilful disobedient and amounted to serious misconduct that justified summary dismissal’ given that 6 days prior she was counselled about notifying the respondent when she was leaving the office 18.

f) Despite the respondent not allowing the applicant an opportunity to speak to the allegations prior to the dismissal, the applicant’s email outlining a hypothetical response had she been given the opportunity, did not satisfactorily address the reasons as to why she did not inform the respondent of her rescheduling as opposed to why she had to reschedule, in particular her failure to notify the respondent of her absence on the 23 September 2015. 19

[26] I will now consider each of the criteria at s.387 of the FW Act separately.

Valid reason - s.387(a)

[27] The Respondent must have a valid reason for the dismissal of the applicant, although it need not be the reason given to the applicant at the time of the dismissal. 20 The reasons should be “sound, defensible and well founded”21 and should not be “capricious, fanciful, spiteful or prejudiced.”22

[28] The letter of termination provided to the applicant stated that the reason for termination was that,

As discussed, despite being advised on numerous occasions that your performance, particularly your lack of adherence to deadlines resulting in breaches of client service standards, time recording and general attendance in the office, was not acceptable and that improvement was required, we have not seen a significant enough improvement over the last few months.

[29] Notwithstanding the paragraph extracted above from the letter of termination the substance of the evidence that was led before the Commission at the substantive hearing was such that the real reason for the dismissal were the events of 23 September 2015.

[30] In answer to questions from the Commission, the applicant gave the following evidence about the events of 23 September 2015 23:

The Commissioner: Ms King, am I right in understanding that thinking about the events of the 23 September whilst you had indicated to Dominic Flannery that your matter was likely to finish at about 11.00 am, that you neither informed him, nor Lesley Owen, nor anyone else in the partnership that the matter was unlikely to be heard until 12.00 pm and that you were going to return to the office, at or about 2.15 pm?

Ms King: That's correct.

The Commissioner: And am I right in understanding that on the 17 September you had a conversation with I think it's - bear with me - with Lesley Owen where she told you that you needed to present in the office between 9.00 and 5.00 pm?

Ms King: I don't think - I don't believe those terms were used.  No.

The Commissioner: Well, she said to you, didn't she, that you needed to be present in the office between 9.00 and 5.00 pm and if you were going to be out of the office that you needed to let someone know where you were going?

Ms King: Yes.  Yes, she did.  She did that.  So that's should be yes.

The Commissioner: And between 11.00 and 2.15 pm on 23 September no one knew where you were did they?

Ms King: My administrative assistant knew where I was.

The Commissioner: Well, when did you tell her?

Ms King: I told her that morning when I was preparing for court for David Onitis.

The Commissioner: Well, you knew that your partners would need to know where you were didn't you?

Ms King: I did, yes.

The Commissioner: And you failed to tell your partners where you were going to be between 11.00 am and 2.15 pm, didn't you?

Ms King: I did, yes.

The Commissioner: And you'd accept that's a very serious breach by a solicitor not telling their partners where they are, don't you?

Ms King: Well, I don't know if I'd accept it's a serious breach.

The Commissioner: You don't think it's serious that your partners should know where you are when you're working for them?

Ms King: Well, I was - I was where I said I was going to be just at a different time.

The Commissioner: Well, you'd been put on notice that your employer wanted to know where you were during office hours hadn't you?

Ms King: Yes.  Yes.

The Commissioner: And you failed to tell them, didn't you?

Ms King: Okay, yes.

The Commissioner: And you accept that that's serious don't you?

Ms King: Put that way, yes.

[31] Noting the evidence of the applicant and the largely uncontested facts referred to above, including:

a) the contractual obligations that the applicant owed to the respondent;

b) that the applicant was on notice about concerns that Mr Lee and Ms Lyons had about her attendance in the office; and

c) the applicant’s failure to notify anyone in authority that she was not returning to the office by 11.00 am on 23 September 2015,

the Commission, as presently constituted, is satisfied that the applicant breached the obligations that she owed to her employer.

[32] As a question of fact the Commission, as presently constituted, finds that the conduct complained of (i.e. the applicant’s failure to notify anyone in authority that she was not returning to the office by 11.00 am on 23 September 2015) occurred. In answer to questions from Mr Barwick the applicant essentially contended that because she had received permission to be away between 9.30 am and 11.00 am (2 � hours in the early part of the morning), it was not important that those 2 � hours were switched to the later part of the morning/early afternoon. 24 I disagree. It was misconduct on behalf of the applicant.

[33] The Commission, as presently constituted, further finds that the misconduct provided a valid reason for the termination of her employment that was sound, defensible and well-founded.

Notification of the valid reason - s.387(b)

[34] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made, 25 in explicit terms26 and in plain and clear terms.27 In Crozier v Palazzo Corporation Pty Ltd28 a Full Bench of the Australian Industrial Relations Commission dealing with similar provision of the Workplace Relations FW Act 1996 stated the following:

“[73] As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.” 29

Consideration

[35] In the present matter the applicant was notified of the reason for her dismissal in the meeting of 23 September 2015 and the letter of termination dated 23 September 2015.

[36] In its submissions the respondent conceded that the applicant was not given an opportunity to respond to the allegations prior to the decision being made to dismiss her. The respondent submitted that this was “a regrettable lack of procedural fairness.” 30

[37] Consequently, the Commission, as presently constituted, finds the applicant was not notified of the reason for the dismissal.

Opportunity to respond - s.387(c)

[38] An employee protected from unfair dismissal must be provided with an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the person. This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality. 31

[39] In the present matter the respondent concedes that it did not provide the applicant with an opportunity to respond to the reason for dismissal.

[40] In his evidence 32 before the Commission Mr Lee conceded that on 23 September 2015, on being informed that the applicant was not in the office he automatically assumed that she was in breach of her obligations to the firm. His evidence was that he made no enquiries of:

a) Mr Flannery;

b) the HR Manager;

c) the applicant’s PA; or

d) Mr Amentas,

about the whereabouts of the applicant. He conceded that the only opportunity provided to the applicant was after the termination of her employment had occurred. He accepted that “prima facie” that was an unfair way to treat an employee. 33 It was an appropriate concession to make.

[41] Consequently, the Commission, as presently constituted, finds the applicant was not given an opportunity to respond to the reason for the dismissal.

Unreasonable refusal by the employer to allow a support person - s.387(d)

[42] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, the employer should not unreasonably refuse that person being present. In the present matter the applicant was not provided with an opportunity to bring a support person (there being no obligation to offer that opportunity to an employee) and as such the issue of an unreasonable refusal does not arise. It is not a relevant consideration.

Warnings regarding unsatisfactory performance - s.387(e)

[43] Where an employee protected from unfair dismissal is dismissed for the reason of unsatisfactory performance, the employer should warn the employer about the unsatisfactory performance before the dismissal. Unsatisfactory performance is more likely to relate to an employee’s capacity than their conduct. 34

[44] The principal complaint made against the applicant (the applicant’s failure to notify anyone in authority that she was not returning to the office by 11.00 am on 23 September 2015) was a conduct issue rather than an issue relating to her capacity.

[45] It is common ground between the parties that the applicant was not participating in a formal performance management program nor was she issued with formal oral or written warnings in relation to her performance. Further, at no stage did Mr Lee or Ms Lyons expressly tell the applicant that her job was in jeopardy.

[46] However, the facts set out above establish that, over the relatively short period of her employment, there were on-going concerns that Mr Lee and Ms Lyons had about the performance of the applicant and that, from time to time, they raise them with her.

[47] The two most formal meetings were those that occurred immediately prior to the expiration of the probation period on 10 June 2015 and the meeting that occurred on 23 July 2015. During both of those meetings the issue of the applicant’s whereabouts was raised. During the meeting on 23 July 2015 Ms Lyons says that she said to the applicant “This is your last chance Alexis. I’m spending far too much time monitoring you and this is unacceptable.” 35 The applicant denies that Ms Lyons made this statement to her.

[48] Neither Ms Lyons nor the applicant took a file note of the conversation on 23 July 2015. However Ms Lyons presented as a witness of truth and as a forthright employer. It is apparent that, by this time in the employment relationship, Ms Lyons was becoming increasingly frustrated with what she perceived to be the absences of the applicant. Consequently I find that, on the balance of probabilities, it is more likely than not, that Ms Lyons said the words to the effect set out above. However, this was not a clear and unambiguous warning about the applicant’s performance nor a clear statement that the applicant’s job was in jeopardy.
[49] Consequently, the Commission, as presently constituted, finds the respondent did not warn the applicant about her unsatisfactory performance before the dismissal.

Impact of the size of the respondent on procedures followed - s.387(f)

[50] The size of the respondent’s enterprise may have impacted on the procedures followed by the respondent in effecting the dismissal. In the present matter the respondent was a medium-size law firm employing about 85 people.

[51] The Commission, as presently constituted, finds the size of the employer’s enterprise did not impact on the procedures followed in effecting the dismissal.

[52] This is a neutral consideration in determining whether the termination of the applicant’s employment was harsh unjust or unreasonable.

Absence of dedicated human resources management specialist/expertise on procedures followed - s.387(g)

[53] The absence of dedicated human resource management or expertise in the respondent’s enterprise may have impacted on the procedures followed by the respondent in effecting the dismissal. In the present matter the respondent did have a Human Resources Manager, Ms Leslie Owen, available to it at all relevant times. Ms Owen was not called to give evidence and one can only assume that as a human resources professional she must have been horrified at the summary way in which the applicant’s employment was terminated.

[54] The Commission, as presently constituted, finds the absence of any such management or expertise (because there was no such absence) did not impact on the procedures followed by the respondent in effecting the dismissal.

[55] Mr Lee and Ms Lyons either did not seek advice from Ms Owen or, if they did receive advice from her, they must have ignored it. This factor weighs in favour of finding that the termination of the applicant’s employment was harsh unjust or unreasonable.

Other relevant matters - s.387(h)

[56] Section 387(h) provides the Commission with a broad scope to consider any other matters it considers relevant. I consider the following matters to be relevant to the determination of whether the dismissal of the applicant was harsh, unjust or unreasonable:

a) the Domestic Violence Incident: “Family violence is a crime. It is a violation of human rights. A woman … [has] the right to be safe and to be free from abuse. Family violence can happen to anyone but in 95% of reported incidents, it is mainly committed by men against women, children and other vulnerable people. It is endemic in the community and affects people of all walks of life regardless of age, culture, sexual identity, ability, ethnicity, religion or socio-economic status.” 36

In the present matter the applicant was a victim of a crime perpetrated by her former partner during their relationship. It resulted in the deterioration of that personal relationship, the sale of the family home which they had established together, and the requirement to attend court on a number of occasions in relation to the Domestic Violence Incident.

Is it apparent that, as an educated professional woman, the applicant felt a sense of shame and embarrassment about the domestic situation in which she found herself. As a result, she had confided in only a small number of people within the office about the personal matters which were distracting her from her work. She was encouraged to tell the partners but she chose not to.

In terms of the applicant’s failure to tell anyone in authority that she was moving the 2 � hour time slot she had been given permission to take off from 9.30 am to around noon, the applicant did not think it was a significant event. As stated above, I think the applicant’s assessment in this regard was in error. However, it can readily be accepted that, in the words of the applicant, “[she] had a lot going on in terms of that morning [of 23 September 2015].” 37 It provides an explanation for her failure to properly communicate her whereabouts after 11.00 am on 23 September 2015. The Domestic Violence Incident having been adjourned to the early afternoon, the applicant voluntarily took on work for another partner; she did her best to juggle the demands of her employment and the requirement that she attend court in relation to a private matter. The shame experienced by the applicant and her continuing preparedness to juggle the demands of work supports a finding that the termination of the applicant’s employment was harsh, unjust or unreasonable.

Although it has not influenced my decision in relation to this matter one is left to wonder whether events might have been different if the respondent had had a policy in relation to paid domestic and family violence leave. It is not common for employers to have such a policy and I make no criticism of the respondent for not having one, but the existence of such a policy would have sent a very clear message to the respondent’s employees that it attaches no stigma to the victims of domestic and family violence and that it would support them to recover, attend court and medical appointments, seek legal advice and make alternative living arrangements without the repercussion of adverse action being taken in relation to their employment. Increasingly, employers are turning their mind to policies in relation to paid domestic and family violence leave or the inclusion of such an entitlement in enterprise agreements. This is to be encouraged.

b) Impact on the applicant: the uncontested evidence of the applicant is that,

The termination has had a significant effect on my career progression and ability to obtain work in the marketplace. I’ve been told by recruiters that there are now? So the my abilities. After applying to 5 insurance law firms and 3 in-house roles, I’ve been invited to just one interview. I received no form of income since my termination until taking a 2 month contract role as a document reviewer at Allens Linklaters on 1 February 2016 earning $30.59 an hour. The contract is due to cease on 1 April 2016.

It has also compounded the emotional and financial stressors in my personal life. I’ve become withdrawn and reluctant to socialise or talk to friends and family due to feelings of shame regarding the collapse of my relationship and career.

This relevant matter supports a finding that the termination of the applicant’s employment was harsh, unjust or unreasonable.

The applicant’s work history: prior to her employment with the respondent the applicant was employed by the firm Wotton & Kearney. The evidence before the Commission was that that employment relationship was the subject of a performance management plan relating to the applicant’s billings and also her unexplained absences from the office. The applicant was on notice from her previous employer and from the respondent that knowledge of her whereabouts was an important duty she owed to each firm as a solicitor. Having experienced difficulties in her employment relationship with her previous employer over these issues it is apparent that the applicant continued the same pattern of behaviour with the respondent. This relevant matter supports a finding that the termination of the applicant’s employment was not harsh, unjust or unreasonable.

Conclusion

[57] Having considered each of the matters specified in s.387, the Commission, as presently constituted, is satisfied the dismissal of the applicant was harsh. Although the applicant breached her obligations to her employer by not telling them that she would not be returning to the office by 11.00 am on 23 September 2015, the consequences for her (the loss of her employment), was harsh and disproportionate to the gravity of the misconduct in respect of which the respondent acted.

[58] Accordingly, the Commission, as presently constituted, finds that the applicant’s dismissal was unfair.

Remedy

[59] Section 390 of the FW Act sets out the circumstances in which I may make an order for reinstatement or compensation:

“390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) The Commission may make the order only if the person has made an application under section 394.

(3) The Commission must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and

(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.

Note: Division 5 deals with procedural matters such as applications for remedies.”

[60] I have already dealt with the issues at s.390(1)(a)–(b) above. The Commission, as presently constituted, is satisfied the applicant was protected from unfair dismissal pursuant to s.382 of the FW Act and the applicant was dismissed unfairly. Accordingly, the Commission is required to determine whether to order the reinstatement of the applicant or, in circumstances where reinstatement is inappropriate, an order for compensation if it is satisfied such an order is appropriate in all the circumstances.

Reinstatement

[61] The applicant seeks compensation as the primary remedy. Both parties agreed that reinstatement would not be an appropriate remedy in the circumstances of this matter. Regardless of the remedy sought by the applicant and the views of the respondent, s.390 of the FW Act requires that I first determine whether reinstatement is appropriate before I may consider an order for compensation.

[62] The Respondent submitted that reinstatement would be inappropriate because:

”The applicant was dismissed for loss of trust and confidence. Furthermore, the respondent is no longer a trading entity, adding further to the remedy of reinstatement being inappropriate.” 38

[63] The applicant agreed with the respondent’s submissions. 39

Consideration

[64] In Regional Express Holdings Ltd T/A Rex Airlines 40 a Full Bench of Fair Work Australia considered what factors may be taken into account when considering if reinstatement is inappropriate under s.390(3)(a) of the FW Act:

“[26] Whenever an employer dismisses an employee for misconduct, assuming the employer is acting honestly, there is an implied loss of trust and confidence in the employee. If it is subsequently found that the termination was harsh, unjust or unreasonable it is appropriate to consider whether the relationship can be restored if the employee is reinstated. That question cannot be answered solely by reference to the views of management witnesses. All of the circumstances should be taken into account. In this case there are a number of relevant matters. They include the fact that not all of the conduct alleged against the respondent has been proven, the respondent’s apparently unblemished record in the performance of his flying duties over a period of 14 years, the fact that the misconduct is not directly related to the performance of the respondent’s professional duties as a first officer and Rex’s failure to pursue any substantial disciplinary action against another pilot who, it is alleged, has been guilty of misconduct at least as serious as that of which the respondent was accused. The significance of the last consideration is that the pilot in question is still carrying out the full range of his duties, despite allegations of conduct of a kind which, in the respondent’s case, is said to have led to an irrevocable loss of trust and confidence. Assuming a positive approach on both sides we find there is a reasonable chance that the employment relationship can be restored with the necessary level of mutual trust.” 41

[65] Applying the decision in Regional Express, I accept that, in the factual circumstances of this matter, including the instruction given to the applicant to let all senior people know her whereabouts, and her failure to do so in the late morning of 23 September 2015, the respondent has good reason to claim that there has irrevocably been a loss of trust and confidence. Further, the fact that the law firm which employed the applicant is no longer trading, lends greater weight to a finding that reinstatement is inappropriate.

[66] In the circumstances the Commission, as presently constituted, is satisfied that it should order reinstatement is inappropriate.

Compensation

[67] Section 390(3)(b) provides the Commission may only issue an order for compensation to the applicant if it is appropriate in all the circumstances.

[68] The applicant submitted that an order for compensation is appropriate in all the circumstances of this case because the applicant would have continued employment beyond the date she was dismissed. The applicant was seeking a promotion to a more senior position within six to twelve months of her undertaking her position. The applicant further submitted that the personal circumstances which had distracted her from work finished on 23 September 2015 (as the hearing on that day was the last hearing in respect of the Domestic Violence Incident) thus enabling her to again focus on her work and have a long term relationship with the respondent. 42 Compensation is sought on the basis that the applicant would have continued her employment with the respondent had she not been unfairly dismissed.

[69] The respondent submitted that an order for compensation is not appropriate in all the circumstances of this case because:

the respondent’s trading entity ceased on the 31 January 2016, and the business is not generating income; 43 and

it was the applicant’s actions that resulted in her dismissal. 44

[70] It does not automatically follow that a finding that the termination of an applicant’s employment was unfair will result in a remedy. However, the Commission, as presently constituted, is satisfied that an order for compensation is appropriate in all the circumstances of this case. The disproportionate impact on the applicant arising out of her misconduct is the basis for that satisfaction.

[71] Section 392 of the FW Act sets out the circumstances that must be taken into consideration when determining an amount of compensation, the effect of any findings of misconduct on that compensation amount and the upper limit of compensation that may be ordered:

“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.

Note: subsection 392(5) indexed to $61,650 from 1 July 2012

(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

(c) 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.”

[72] The method for calculating compensation under s.392 of the FW Act was dealt with by a Full Bench of the Commission in Bowden, G v Ottrey Homes Cobram and District Retirement Villages Inc. T/A Ottrey Lodge 45 (Bowden). In that decision the Full Bench set out the order in which the criteria and other factors should be applied, taking into account authority under the Workplace Relations FW Act 1996 in Sprigg v Paul’s Licensed Festival Supermarket46 and Ellawala v Australian Postal Corporation47. I have adopted the methodology utilised in Bowden in determining the amount of a payment of compensation.

[73] I will now consider each of the criteria in s.392 of the FW Act.

Remuneration that would have been received: s.392(2)(c)

[74] The applicant’s remuneration with the respondent was $140,000 (including superannuation); or $127,853.88 (not including superannuation).

[75] I should now determine the period of time the applicant would have remained employed by the respondent, or would have likely remained employed with the respondent, had she not been dismissed.

[76] The applicant submitted that the applicant would have remained in the employ of the respondent for three to four years or longer, because the Domestic Violence Incident had come to an end 48, which would have allowed her to prioritise her employment with respondent and seek a possible promotion49. The applicant further submitted her previous employment although across two entities, was for a single employer over a period of four and half years.50

[77] The respondent submitted that the applicant’s employment with the respondent would not have gone beyond 31 January 2016, as this was the date the respondent (D.C Lee & L.J Lyons) ceased to trade. The respondent’s submissions outlined that upon transfer to Clyde & Co, not all employees of the respondent were employed by Clyde & Co. The respondent submitted it would have taken the same action with the applicant (that is, she would not have received an offer from Clyde & Co) because she would not have been likely to satisfy the requirements expected by Clyde & Co and of its employees. 51

[78] Noting that the applicant has a consistent work history of remaining with an employer for around 4 years, the Commission, as presently constituted, finds that, but for the dismissal on 23 September 2015, the applicant would have continued to be employed by the respondent for a similar period of time.

[79] However, because the respondent ceased to trade on 31 January 2016, the Commission, as presently constituted, is not satisfied that the applicant would have been employed by Clyde & Co and that therefore, it is more likely than not that her employment would have ended on 31 January 2016.

[80] That is a period of 14 weeks that the applicant would have remained employed had she not been dismissed on 23 September 2015.

[81] The amount the applicant would have received between 23 September 2015 and 31 January 2016 is $34,422.20. 52

Remuneration earned: s.392(2)(e)

[82] The evidence is that the applicant was paid 4 weeks’ notice on termination, but that (other than that amount) she did not earn income in the immediate period after the termination of her employment.

[83] I find the applicant earned $9,834.91 in remuneration for employment or other work during the period since the dismissal and deduct this amount from the compensation to be ordered. This leaves an amount of compensation in the amount of $24,587.29.

Income likely to be earned: s.392(2)(f)

[84] Because the period between the date of termination of the applicant’s employment and the date I have determined her employment would otherwise have ended (but for the termination) has already passed an assessment of what the applicant would likely have earned during that period is not relevant.

Other matters: s.392(2)(g)

[85] No submissions were made about what other contingencies should be applied in the present matter. Consequently, the Commission, as presently constituted, finds it is not appropriate in the circumstances that a contingency should be applied.

Viability: s.392(2)(a)

[86] The evidence of Mr Lee and Ms Lyons was that Lee and Lyons Lawyers ceased trading on 31 January 2016 because it transitioned to Clyde & Co. However, the Lee and Lyons entity is still active as file arrangements are still taking place to close it completely.

[87] Mr Barwick for the respondent declined to make a submission that an award of compensation in favour of the applicant would cause some harsh financial outcome upon the respondents 53.

[88] The Commission, as presently constituted, finds an order for compensation in the amount proposed will not affect the viability of the respondent’s enterprise.

Length of service: section (s.392(2)(b))

[89] I find that the applicant’s relatively short period of service with the respondent, being 9 months and 1 week, should affect the amount of compensation to be ordered.

[90] I will reduce the amount of compensation to be ordered by 10% to take into account the length of the applicant’s period of service with the respondent. This leaves an amount of compensation in the amount of $22,128.56.

Mitigating efforts: s.392(2)(b)

[91] In considering whether the applicant has taken steps to mitigate the loss suffered as a result of the dismissal I should take into account whether the applicant acted reasonably in the circumstances. 54

[92] Based on the uncontested evidence of the applicant, the Commission, as presently constituted, finds that the applicant did make efforts to mitigate her loss suffered as a result of the dismissal.

[93] Consequently, I will not reduce the amount of compensation any further under this sub-clause of s.392(2).

Misconduct: s.392(3)

[94] Earlier in this decision I found that misconduct of the applicant contributed to the dismissal. Section 392(3) requires the amount of compensation that would have been ordered under s.392(1) be reduced by an appropriate amount on account of the misconduct.

[95] The applicant submitted that the applicant’s contribution be limited to 5%-10% as the circumstances which arose on the day of the dismissal were out of her control, “if she had to be in court, she had to be in court. She couldn’t change the time.” 55

[96] The respondent submitted that the applicant contributed more than 50% as it was the applicant’s own conduct on the 23 September 2015 that led to her dismissal. The respondent submitted that it was not its duty to track her whereabouts and ensure that the applicant was adhering to her duty as an employee and inform her employer if she was to leave the office. The respondent relied upon the trust of the applicant, to attain their permission to be absent during work hours, which she breached. 56

[97] I have stated above that the pressing nature of the hearing in relation to the Domestic Violence Incident provides an explanation for applicant’s failure to properly communicate her whereabouts after 11.00 am on 23 September 2015. However, that does not fully excuse her behaviour.

[98] The applicant was on notice that Mr Lee and Ms Lyons had serious concerns about her whereabouts from time to time. A week prior to 23 September 2015 (on 17 September 2015) Ms Owen had reiterated the concerns of the partnership about attendance in the office. In this context the failure of the applicant to communicate constituted misconduct and provided a valid reason for the termination of her employment.

[99] It would have taken no effort at all to email or call Mr Lee, Ms Lyons, Ms Owen or Mr Flannery to let them know about the change in the time for the court hearing in relation to the Domestic Violence Incident. The applicant must bear some responsibility for her failure to do so.

[100] Consequently, having considered all that has been submitted in relation to the matter and the requirement to apply a “fair go all round” the Commission as presently constituted, has decided to reduce the amount of compensation to be awarded by 50%.

[101] This leaves an amount of compensation in the amount of $11,064.28.

[102] This amount is effectively a further payment of 4.5 weeks’ pay (on top of the 4 weeks’ notice the applicant was paid on termination) and constitutes a total payment of 8.5 weeks in respect of an employee who was employed for a relatively short period of time of 9 months and 1 week.

Shock, Distress: s.392(4)

[103] I note that the amount of compensation calculated does not include a component for shock, humiliation or distress.

Compensation cap: s.392(5)

[104] I must reduce the amount of compensation to be ordered if it exceeds the lesser of the total amount of remuneration received by the applicant, or to which the applicant was entitled, for any period of employment with the employer during the 26 weeks immediately before the dismissal, or the high income threshold immediately prior to the dismissal.

[105] The high income threshold immediately prior to the dismissal was $136,700. The applicant earned less than the high income threshold.

[106] The amount the applicant would have earned, or to which the applicant was entitled, for the 26 week period immediately prior to the dismissal was $63,926.94.

[107] The amount of compensation the Commission will order does not exceed the compensation cap.

Payment by instalments: s.393

[108] No commission was made that it would be necessary for the respondent to pay the amount of compensation by way of instalments. Consequently, the respondent is to pay the amount of compensation within 21 days of the date of this decision.

Conclusion

[109] The Commission, as presently constituted, is satisfied that the applicant was protected from unfair dismissal, that the dismissal was unfair and a remedy of compensation in the amount of $11,064.28 is appropriate.

[110]An order will be issued with this decision.

COMMISSIONER

Appearances:

Ms U Okereke-Fisher for the applicant

Mr A Barwick for the respondent

Hearing Details:

Sydney,

2016

February 29

 1   [2013] FCA 291.

 2   The applicant's Total Remuneration Package included employer contributions to superannuation in the amount of $12,146.12. Compulsory superannuation contributions are not included in the calculation of an employee’s earnings for the purpose of determining whether they fall below the high income threshold. The applicant’s earnings therefore were $127,853.88.

 3   Transcript PN66-67

 4   Transcript PN338

 5   Transcript PN68-69

 6   Transcript PN 70-71.

 7   Sayer v Melsteel[2011] FWAFB 7498.

 8   Unfair Dismissal Application, Form F2 – Q3.2.

 9   Ibid

 10   Transcript PN718

 11   Transcript PN660-667

 12   Transcript PN 679-680 & 688-689

 13   Transcript PN706

 14   Respondents Submissions at Para 21

 15   Respondents Submissions at Para 29

 16   Transcript PN771

 17   Transcript PN773

 18   Respondent’s Submissions at Para 22.

 19   Respondent’s Submissions at Para 24-25 & Transcript PN780.

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

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

 22   Id.

 23   Transcript PN147-158.

 24   Transcript PN265.

 25   Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41].

 26   Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.

 27   Previsic v Australian Quarantine Inspection Services Print Q3730.

 28 (2000) 98 IR 137.

 29   Ibid at 151.

 30   Respondent’s Submissions at Para 24

 31   RMIT v Asher (2010) 194 IR 1, 14-15.

 32   Transcript PN325-349.

 33   Transcript PN342.

 34   Annetta v Ansett Australia Ltd (2000) 98 IR 233, 237.

 35   Exhibit “R2”, para 18.

 36     Transcript PN269.

 38   Respondent’s Submissions at Para 39

 39   Transcript PN98

 40   [2010] FWAFB 8753.

 41 Ibid at [26].

 42   Transcript PN729 - 732

 43   Transcript PN795

 44   Respondents Submissions at Para 43

 45   [2013] FWCFB 431.

 46 (1998) 88 IR 21.

 47   Print S5109.

 48   Transcript PN747-749.

 49   Transcript PN729.

 50   Transcript PN747-749.

 51   Transcript PN782-789.

 52   That being annual earnings of 127,853.88 divided by 52 weeks and multiplied by 14 weeks.

 53   Transcript PN795.

 54   Biviano v Suji Kim Collection PR915963 at [34].

 55   Transcript PN750-753

 56   Transcript PN791-793

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