Alison Mulhallen v Roy Morgan Interviewing Services Pty Ltd

[2017] FWC 1942

[2017] FWC 1942

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Alison Mulhallen
v
Roy Morgan Interviewing Services Pty Ltd
(U2017/177)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 6 APRIL 2017

Application for an unfair dismissal remedy.

[1] Ms Alison Mulhallen was employed by Roy Morgan Interviewing Services Pty Ltd from 1 November 2007. In her application, Ms Mulhallen alleged that she was dismissed in December 2016 when Roy Morgan stopped offering her shifts. Roy Morgan denied dismissing Ms Mulhallen and said she remained employed.

[2] Roy Morgan’s objection to Ms Mulhallen’s application was listed for hearing on 3 March 2016.

[3] At the commencement of the hearing, I sought clarification from Roy Morgan as to which objections it pressed as it had advised that it objected to Ms Mulhallen’s application on two additional grounds, namely if she was dismissed then her application was not lodged within 21 days of the date of the dismissal and further, she was not protected from unfair dismissal because as a casual employee she was not employed on a regular and systematic basis. Mr James Yeatman, Group General Counsel and Head of Human Resources, who appeared for Roy Morgan, advised that it was not pressing these objections.

[4] The matter was listed to deal only with the objections. Having clarified the matters in dispute, I asked Mr Yeatman if Roy Morgan accepted that if I found that there was a dismissal then that dismissal was unfair and the only issue that would need to be determined was remedy. Mr Yeatman accepted that proposition but wanted it noted that if I found the dismissal was unfair then it was prepared to reinstate Ms Mulhallen and wanted regard to be had to that in any consideration of remedy. The parties agreed that I should hear and determine the application not just the objection.

[5] After hearing from the parties I determined that the matter would proceed by way of a conference.¹

Ms Mulhallen’s evidence

[6] Ms Mulhallen said that when she commenced employment she was advised that she must be available for a minimum of four shifts per week.

[7] She said that since 2014, Mr Euan Wilson, the Call Centre Manager, had issues with her.

[8] Ms Mulhallen who worked on the NZ BP project had her shift on 30 November 2016 cancelled on short notice which also occurred on 1 December 2016. She said she attended the office and was told by Mr Wilson that there was an issue arising from the CBA survey that he would discuss with her the following week. The meeting in fact occurred that afternoon and Ms Mulhallen was told that she had been ‘somewhat abrupt” during the interview but the recording of the call was not played to Ms Mulhallen. Ms Mulhallen worked the next day on the NZ BP project.

[9] Ms Mulhallen said she had not been offered any shifts since 9 December 2016. On that occasion her shift was cancelled with less than four hours’ notice.

[10] Ms Mulhallen was told by Mr Wilson that the NZ BP project had finished for the year and that she was not allowed to do CBA work. She gave evidence that she discovered on 19 December 2016 that there had been further NZ BP shifts on 16, 17, 18 and 19 December 2016 which were not offered to her.

[11] Ms Mulhallen said that she texted her supervisor on 14 December 2016 and left voice messages for him on 16, 20 and 21 December 2016 and sent a further text message on 31 December 2016 but he did not respond. She attended the office on 3 January 2017 and met with Mr Wilson who advised her that he did not receive the texts or messages. She asked Mr Wilson why she had not got shifts when “new NZ BP shifts had been offered to interviewers from 3/1/17, which then ran for 13 days straight.” Mr Wilson told Ms Mulhallen that she would not be getting any of them because “I was not where I needed to be”. Mr Wilson told her that shift allocation was done on three criteria: (1) attendance and punctuality, (2) IPR and (3) attitude and performance. Ms Mulhallen responded by saying that she had only ever cancelled two shifts in nine years of employment and she had only been late about twice a year. Further, she said her IPR was above average and she had never been accused of having an attitude problem in the seven years she had worked on the NZ BP project. Mr Wilson told her that there would be no shifts for her. She said she used to work seven days a week every week on NZ BP but two years ago this was reduced to 13-15 days per month. She said she would have worked this job for 98% of her shifts. Mr Wilson told her that they had several interviewers now for this job. Ms Mulhallen said this was only because Mr Wilson had briefed more on it over the last few months. She said that shift numbers for NZ BP are usually 8 to 22 interviewers but even when there had only been 8-9 on a shift she had always been one of them.

[12] At the hearing Ms Mulhallen said that Mr Wilson told her that she would not be getting anymore work.

[13] Ms Mulhallen was not questioned on this evidence.

Roy Morgan’s evidence

[14] Mr Wilson had provided a statement but he no longer worked for Roy Morgan. He was not present at the hearing to be cross examined, so I have not had regard to his statement.

[15] Mr Yeatman, who was obliged to sign off on any dismissal, gave evidence that he had not authorised the dismissal of Ms Mulhallen. He said that Ms Mulhallen had not been offered work as there was not sufficient work for everyone. He said that people worked on projects and they are given preference for work on that project over others who had not worked on the project. Given that, Mr Yeatman was not able to explain why Ms Mulhallen was not offered work on the project she normally worked on 16, 17, 18 and 19 December 2016. In response to Ms Mulhallen’s proposition that the project had continued in 2017 and some employees were offered every shift Mr Yeatman said that in December there had been 70 interviewers on this project and in January there were only 40 interviews. He could not however explain why Ms Mulhallen was not offered any shifts. He said that she was not offered shifts did not mean she would not be offered shifts into the future.

Roy Morgan’s submissions

[16] Mr Yeatman said this was not a dismissal, there was simply no work for Ms Mulhallen to do. She was not able to work on the CBA project because there had been a complaint. He said therefore she could only work on the NZ job and there was insufficient work for all the interviewers. He said that making this application was a tactic by Ms Mulhallen to compel Roy Morgan to give her preference for work. He said that there was new work starting this month.

Ms Mulhallen’s submission

[17] Ms Mulhallen said this was a dismissal because there was work in December and every fortnight since 3 January 2016 and she was not offered any work. Further she submitted that Roy Morgan had employed new interviewers and she was able to do that work. Ms Mulhallen rejected the proposition that she could not work on the CBA job because of the complaint. She acknowledged that she had been told there had been a complaint but as she had not been able to listen to the interview, she had been denied an opportunity to respond to the complaint.

Roy Morgan in reply

[18] Roy Morgan disputed that it had engaged interviewers to replace Ms Mulhallen. It said that it had employed, on fixed term contracts, interviewers for a particular project but that was because they could not meet their contractual obligations with their existing pool of interviewers. That job has come to an end.

Consideration

[19] I am satisfied that Ms Mulhallen was dismissed by Roy Morgan on 3 January 2017 when Mr Wilson told her that she would not be offered any more shifts. While I accept, that there had been a reduction in the shifts available, that did not explain why Ms Mulhallen who had worked on regular and systematic basis for seven years was not offered any shifts at all. I am satisfied that despite Mr Wilson not following the Roy Morgan procedure in dismissing Ms Mulhallen that did not change what happened. There was no suggestion that he did not have the authority to refuse to offer Ms Mulhallen shifts and she was entitled to treat his advice to her as dismissal from her employment.

Was the termination of employment harsh, unjust or unreasonable?

[20] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Fair Work Commission must take into account the following:

s387(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);

[21] Mr Yeatman accepted that there was not a valid reason for the dismissal and this concession was properly made. I am satisfied on the evidence before me that there was no valid reason for the dismissal.

s387(b) whether Ms Mulhallen was notified of that reason;

[22] Mr Yeatman accepted that Ms Mulhallen was not notified of the reason before the decision was made and that is consistent with the evidence before me.

s387(c) whether Ms Mulhallen was given an opportunity to respond to any reason related to the capacity or conduct of the person;

[23] Mr Yeatman accepted that Ms Mulhallen was not given an opportunity to respond to any reason for the dismissal.

s387(d) any unreasonable refusal by the employer to allow Ms Mulhallen to have a support person present to assist at any discussions relating to dismissal;

[24] There was no refusal to allow Ms Mulhallen a support person.

s387(e) if the dismissal related to unsatisfactory performance by the person—whether Ms Mulhallen had been warned about that unsatisfactory performance before the dismissal;

[25] The dismissal did not relate to unsatisfactory performance.

s387(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;

[26] There was no evidence or any submissions on this criterion.

s387(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;

[27] There was no evidence or any submissions on this criterion.

s387(h) any other matters that the Fair Work Commission considers relevant.

[28] Ms Mulhallen was a long standing employee. She made repeated attempts to find out why she was not offered work. The only reason the meeting with Mr Wilson took place was because she went to work to meet him. Even then he provided her with no reasonable explanation as to why such a long standing employee was not receiving any work.

Conclusion

[29] I am satisfied that the dismissal was harsh and unjust and unreasonable and so much was conceded by Mr Yeatman.

Remedy

[30] Ms Mulhallen is not seeking reinstatement of her employment despite Mr Yeatman offering to reinstate her. Mr Yeatman’s offer did not come with any guarantee of work. He said she would be treated as other casual employees. Ms Mulhallen submitted that she did not have any confidence in returning. I am satisfied therefore that reinstatement would not be an appropriate remedy.

[31] In assessing any amount in lieu of reinstatement, the Fair Work Commission is required to have regard to the following:

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

[32] Mr Yeatman submitted that the maximum order for compensation would not affect the viability of the business.

(b) the length of the person’s service with the employer;

[33] Ms Mulhallen was a long serving employee.

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

[34] Ms Mulhallen said that she worked 5-7 shifts per week. Mr Yeatman said that this practice would not continue and that the maximum number of shifts that would be worked would be five shifts per week. I am a satisfied that Ms Mulhallen would have remained in employment with Roy Morgan for at least another two years. While I accept that her shifts may fluctuate there was no evidence that her income would be less than she had been earning.

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

[35] Ms Mulhallen gave evidence of her attempts to find alternative work. I see no reason to reduce the amount of compensation to be paid as I am satisfied that she has made reasonable attempts to mitigate any loss suffered.

(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;

[36] Ms Mulhallen had another job at the same time as she worked for Roy Morgan. She took this position because she was concerned about her job security at Roy Morgan. This job did not conflict with her availability for work with Roy Morgan. I therefore do not have regard to it in making an order for compensation. She has not had any other employment in this period.

(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;

[37] I do not anticipate that Ms Mulhallen will earn any monies in this period.

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

[38] I will deduct an amount of 15% for the possibility that in the 2 years Ms Mulhallen may have been made redundant or had her shifts reduced by such an amount that she chose to resign.

Conclusion

[39] I consider that compensation is appropriate. The evidence established that in the previous six months Ms Mulhallen earned $17,497.87 plus superannuation. The amount of compensation payable to Ms Mulhallen when applying the Spriggs formula will exceed the compensation cap. As a result, I am required to reduce the amount to the cap.

[40] I therefore order that Roy Morgan pay Ms Mulhallen $17,497.87 subject to deduction for taxation in accordance with law and $1,662.30 to her nominated superannuation fund within 21 days of the final order in this matter.

DEPUTY PRESIDENT

Appearances:

A. Mulhallen on her own behalf.

J. Yeatman for the Respondent.

Hearing details:

2017.

Melbourne:

3 March.

1 Ss.398 and 399 of the Fair Work Act 2009

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