Amanda Katherine Gimbert v TG Ice Cream Shack Pty Ltd
[2022] FWC 2521
•20 SEPTEMBER 2022
| [2022] FWC 2521 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Amanda Katherine Gimbert
v
TG Ice Cream Shack Pty Ltd
(U2022/6071)
| DEPUTY PRESIDENT SAUNDERS | NEWCASTLE, 20 SEPTEMBER 2022 |
Application for relief from unfair dismissal – whether applicant was dismissed – dismissal unfair – compensation ordered.
Introduction
Ms Amanda Gimbert commenced work for TG Ice Cream Shack Pty Ltd t/a Tea Gardens Ice Cream Shack (Ice Cream Shack) as a casual customer service attendant in November 2021. Following an incident concerning Ms Gimbert’s unavailability to work on Mother’s day, 8 May 2022, her casual employment relationship with the Ice Cream Shack came to an end on 7 June 2022.[1] Ms Gimbert contends that she was dismissed and that her dismissal was harsh, unjust and unreasonable. The Ice Cream Shack denies those allegations.
I heard Ms Gimbert’s unfair dismissal application, by video conference, on 16 September 2022. Ms Gimbert gave evidence in support of her case. Ms Sarah Rinkin, a director of the Ice Cream Shack, gave evidence in defence of the claim.
Relevant facts
Ms Gimbert undertook a paid trial shift at the Ice Cream Shack on 29 October 2021. Her employment relationship as a casual employee with the Ice Cream Shack commenced on 19 November 2021.
Ms Gimbert’s contract of employment made clear that she did not have any guarantee of hours of work and her employment could be terminated on one hour’s notice.
The Ice Cream Shack asked employees in the last week of each month to provide any dates on which they would not be available to work in the following month. Rosters were published in the first week of each month. The roster would cover that month and one week into the following month.
Ms Gimbert received her rosters from the Ice Cream Shack by email. As a senior employee, Ms Gimbert also had access to an application known as the Box App which she could use to view her work roster.
Ms Gimbert generally worked about two to three shifts per week in the period from November 2021 to April 2022.
In April 2022, Ms Gimbert was absent from work for a period of time as a result of her illness and the illness of at least one of her children.
On 20 April 2022, Ms Gimbert worked what turned out to be her final shift for the Ice Cream Shack.
On 6 May 2022, Ms Gimbert completed her COVID related isolation period.
Ms Gimbert was not rostered to work on Mother’s Day, Sunday, 8 May 2022.
At about 2pm on Saturday, 7 May 2022, Ms Rinkin asked whether Ms Gimbert could work from 1pm until close (5pm) on Sunday, 8 May 2022, because another senior employee had been injured. Ms Gimbert agreed. At this time, Ms Gimbert was not aware of the Mother’s Day surprise which her children had arranged for her on the following day.
During the evening on Saturday, 7 May 2022, one of Ms Gimbert’s daughters contacted Ms Rinkin and asked whether her mother’s shift on the following day could be swapped or cancelled. Ms Gimbert’s daughter made this request because, unbeknown to Ms Gimbert, her older children had organised a surprise lunch and massage for their mother on Mother’s Day. Ms Gimbert’s children had organised this surprise because it was the first time that her son had had a decent job and the children wanted to spoil their mother, particularly after everything Ms Gimbert had been through as a consequence of significant damage to her house from a fire on 31 October 2021. Ms Rinkin informed Ms Gimbert’s daughter that Ms Gimbert would need to make the decision on what to do with her shift on Mother’s Day.
At about 9am on Sunday, 8 May 2022, Ms Gimbert sent a text message to Ms Rinkin to explain that she had a problem with the shift that afternoon and could not work. Ms Rinkin then telephoned Ms Gimbert and had a discussion with her. Ms Rinkin asked Ms Gimbert what she intended to do about her work shift that afternoon. Ms Gimbert said that she could not let her children down. Ms Rinkin responded by saying that there would be some ramifications and she had to do what was right for her business. Ms Rinkin also told Ms Gimbert that she would need to redo the roster for May to suit the needs of her business. There is a dispute as to how Ms Gimbert responded. Ms Gimbert says that she said words to the effect, “Ok, if that is what you need.” Ms Rinkin says that Ms Gimbert responded by saying words to the effect, “That suits me because I have stuff coming up with my house.” Ms Gimbert says that she did not have any house related commitments that would have meant that she could not work during May 2022. Ms Gimbert says that the building work on her house did not commence until June 2022 and her builder and insurance assessor had access to the property and did not need her assistance or time to undertake the repair work required on the house. Ms Gimbert has not been living in the house since it was damaged by fire in October 2021.
I prefer Ms Gimbert’s evidence over Ms Rinkin’s evidence in relation to the disputed part of their discussion on 8 May 2022. I am therefore satisfied on the balance of probabilities that Ms Gimbert responded to Ms Rinkin’s statement that she would need to redo the roster to suit the needs of her business by saying words to the effect, “Ok, if that is what you need.” I do not accept, on the balance of probabilities, that Ms Gimbert responded by saying words to the effect, “That suits me because I have stuff coming up with my house.” My reasons for making this finding are as follows. First, Ms Gimbert had provided her availability for the month of May to Ms Rinkin in late April 2022. It is apparent that Ms Gimbert must have informed Ms Rinkin that she was generally available, or did not have much unavailability in May 2022, because the original roster prepared and distributed by Ms Rinkin for the month of May showed Ms Gimbert working about three shifts per week, according to the unchallenged evidence given by Ms Gimbert. The evidence does not reveal any events or information that occurred or became known between late April 2022 and 8 May 2022 which would have caused Ms Gimbert’s unavailability for May 2022 to change to any significant extent. It is therefore unlikely that Ms Gimbert responded to Ms Rinkin’s representation on 8 May 2022 that she would redo the roster, with the clear implication that Ms Gimbert would be given fewer, or no, shifts for the balance of May 2022, by saying that would “suit” Ms Gimbert. Secondly, although the documentary evidence demonstrates that Ms Gimbert spent some time dealing with insurance assessors and builders in March and April 2022,[2] there is no evidence to support a finding that Ms Gimbert needed time off from her (approximately) 15 hour per week casual job at the Ice Cream Shack in May 2022 to deal with “stuff coming up with [her] house”. Thirdly, Ms Gimbert had not worked at the Ice Cream Shack since 20 April 2022 as a result of her illness and the illness of her child. This recent period away from her casual employment, without paid sick leave, reduced the likelihood that Ms Gimbert would want further unpaid time away from work in May 2022.
There is no dispute that in their telephone discussion on 8 May 2022 Ms Rinkin and Ms Gimbert did not discuss Ms Gimbert taking any form of leave in May 2022. Further, in light of the finding I have made in the previous paragraph as to what was said between Ms Rinkin and Ms Gimbert on 8 May 2022, there was no agreement reached for Ms Gimbert to take any form of leave in May or June 2022.
Ms Rinkin accepts that she was angry and frustrated at being told by Ms Gimbert on the morning of Mother’s Day that she could not work the 1pm-5pm shift she had agreed on the previous day to work. Ms Rinkin did not think she would be able to find a replacement for Ms Gimbert at such short notice. This was of significant concern to Ms Rinkin because Mother’s Day is typically a busy and important day for the Ice Cream Shack’s business in Tea Gardens, where Ms Gimbert worked. Significant detriment to the Ice Cream Shack’s business in Tea Gardens could have been caused by Ms Gimbert’s cancellation of her shift on 8 May 2022 if a replacement employee was not found and the shop had to be closed at 1pm.
As events transpired, Ms Rankin was able to find an employee to fill in for Ms Gimbert from 1pm-5pm on Mother’s Day. A trainee employee worked the shift from 1pm-5pm and Ms Gimbert arranged for another employee, who was on leave, to attend the shop and lock up at 5pm.
At about 5:18pm on Mother’s Day, Ms Rinkin emailed to the employees who worked at the Tea Gardens store a new roster for the month of May and the first week of June 2022. The new roster had Ms Gimbert’s name on it, but no shifts were allocated to Ms Gimbert. In the previous version of the May roster, which had been distributed in about early May 2022, Ms Gimbert had been rostered to work approximately three shifts each week. Those shifts had been taken away from Ms Gimbert in the new roster.
Although Ms Gimbert’s shifts had been taken away from her for May 2022, Ms Gimbert expected that she would be contacted by Ms Rinkin, as was usually the case, to ask her to work particular shifts during May 2022 when employees became unavailable. Contrary to Ms Gimbert’s expectation, that did not happen.
Ms Gimbert did not communicate her unavailability for June 2022 to Ms Rinkin. In turn, Mr Rinkin did not communicate with Ms Gimbert for the balance of May 2022 or thereafter.
When Ms Rankin prepared the roster for June 2022, she did not roster Ms Gimbert to work any shifts. That was because, according to Ms Rinkin, Ms Gimbert had agreed in their discussion on 8 May 2022 to an undefined period of leave and Ms Rinkin had not heard from Ms Gimbert since that time.
Ms Rinkin did not send the June 2022 roster to Ms Gimbert. A work colleague provided Ms Gimbert with a screen shot of the work roster for June 2022. Not only did the June roster not allocate Ms Gimbert to work any shifts, it had Ms Gimbert’s name removed from the roster. In addition, on 7 June 2022, Ms Rinkin removed Ms Gimbert’s access from the Box App, with the result that Ms Gimbert could not use the Box App to see the roster for June 2022. Ms Rinkin says that she removed Ms Gimbert from the Box App because she was “tidying up”. Ms Rinkin did not remove any other employee’s access to the Box App at that time.
In light of what had happened in relation to the June 2022 roster and her removal from the Box App without any explanation from Ms Rinkin, Ms Gimbert believed she had been dismissed from her employment with the Ice Cream Shack. As a result, Ms Gimbert lodged her unfair dismissal application with the Commission on 7 June 2022.
Ms Rinkin is of the view that Ms Gimbert remained employed by the Ice Cream Shack at all times to 30 June 2022, at which time she discussed the situation with her accountant and they decided that Ms Rinkin’s employment with the Ice Cream Shack had come to an end. Ms Rinkin is of the opinion that Ms Gimbert was not dismissed. In support of this contention, Ms Rinkin points to the fact that she did not ask Ms Gimbert to return her work keys and uniform. However, I do not consider the absence of such a request to be of any particular significance because Ms Rinkin has not, at any time, requested Ms Gimbert to return her uniform and work keys, even after Ms Rinkin formed the view by 30 June 2022 that Ms Gimbert’s employment with the Ice Cream Shack had come to an end.
Unsurprisingly, Ms Rinkin gave evidence, which I accept, that the hours of work available for all employees at the Tea Gardens ice cream store decreased over the winter months (June, July and August 2022), save for the two week period of school holidays in July 2022. In addition, shift lengths were reduced from four or five hours to three hours, save for four hour shifts being used for the two weeks of school holidays in July. Two of the Ice Cream Shack’s senior employees resigned because they were not getting enough hours of work and found alternative employment with more hours of work available.
Ms Gimbert says that she looked for alternative employment following the cessation of her employment with the Ice Cream Shack on 7 June 2022. Ms Gimbert only looked for employment in Tea Gardens and Hawks Nest because she has a school aged child to care for and employment outside her local area would involve extensive travel and high petrol costs. For example, Ms Gimbert explained that it takes about an hour to drive from Tea Gardens or Hawks Nest to Newcastle, where employment is more readily available. Ms Gimbert looked for alternative employment in her local area on Facebook, in the local paper and by using Seek. She considered applying for a job in a local café but decided against doing so because the job involved mainly weekend work, the hours of work were limited, and another employee from the Ice Cream Shack was going for the job; Ms Gimbert did not want to take the job away from her.
A couple of weeks after 7 June 2022, a friend of Ms Gimbert told her about a job that was coming up in the local nursing home. Ms Gimbert applied for the job in about early July 2022. By about 15 July 2022, Ms Gimbert was told that the job in the nursing home was hers subject to her references being checked. On 21 July 2022, Ms Gimbert accepted the job. She commenced in the alternative role, as an Assistant in Nursing, on 23 July 2022. The role is part-time, but Ms Gimbert has been working at least 40 hours per week in her new job.
Ms Gimbert gave evidence that she withdrew from a couple of shifts during her casual employment with the Ice Cream Shack, but she also helped the business out by agreeing to take on additional shifts and swapping shifts at the request of Ms Rinkin. It was accepted by Ms Rinkin in her evidence that Ms Gimbert was not an unreliable employee. The documentary evidence contained in the hearing book supports this evidence from both Ms Rinkin and Ms Gimbert. In particular, text messages between Ms Rinkin and Ms Gimbert show Ms Rinkin asking Ms Gimbert to work additional or different hours to her rostered hours and Ms Gimbert agreeing where she could accommodate such changes. The text messages also show Ms Gimbert requesting changes to her working hours from time to time and Ms Rinkin accommodating those changes when she could. When such changes could not be accommodated by the Ice Cream Shack, the text messages show, apart from on 8 May 2022, Ms Gimbert working the hours she was rostered to work.
Dismissal
The Ice Cream Shack contends that Ms Gimbert was not dismissed within the meaning of the Fair Work Act 2009 (Cth) (Act). It is appropriate to deal with this jurisdictional issue before any consideration of the merits of the application.
The question of when a person has been dismissed is governed by s 386 of the Act. It relevantly provides:
“(1) A person has been dismissed if:
(a) the person’s employment with her or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from her or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by her or her employer.”
General principles
A dismissal does not take effect until an employee is aware that they have been dismissed or the employee has at least had a reasonable opportunity to become so aware.[3]
It is necessary to consider all the relevant circumstances to determine whether there has been a communication of a dismissal by words or conduct. The range of facts or factors which may need to be examined to answer the question of whether an employment relationship has ceased to exist by reason of the communication of a dismissal by words or conduct will be determined by the circumstances of a particular case, and may include, without limitation, whether the employee is being paid a wage or other benefits or entitlements, whether the employee is attending or performing work for the employer, whether the employee is being rostered to work or offered work, whether, in the case of a business employing casuals, the employer is rostering other employees to do work in the same role as the applicant in a particular case, whether the employer is exercising, or has the ability to exercise, control over the execution of work by the employee,[4] whether either party has communicated to the other party a decision to terminate the relationship, and the terms of the employment contract.
The question of whether an employment relationship has ceased to exist does not depend upon the parties’ subjective intentions or understandings. Rather, it depends upon what a reasonable person in the position of the parties would have understood was the objective position. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe.[5]
The expression “termination at the initiative of the employer” in s 386(1)(a) is a reference to a termination of the employment relationship and/or termination of the contract of employment[6] that is brought about by an employer and which is not agreed to by the employee.[7]
In circumstances where the employment relationship is not left voluntarily by the employee, the focus of the inquiry under s 386(1)(a) is whether an action on the part of the employer was the principal contributing factor which results, directly or consequentially, in the termination of the employment.[8]
Where the conduct of an employee amounts to a renunciation of the contract of employment, it is the conduct of the employee that terminates the employment relationship.[9]
Section 386(1)(b) of the Act concerns the resignation of an employee where the resignation was “forced” by conduct or a course of conduct on the part of the employer. The question of whether a resignation did or did not occur does not depend on the parties’ subjective intentions or understandings.[10] Whether an employee resigned depends on what a reasonable person in the position of the parties would have understood was the objective position, based on what each party had said or done, in light of the surrounding circumstances.[11]
The test to be applied in determining whether a resignation was “forced” within the meaning of s 386(1)(b) is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probable result of the employer’s conduct such that the employee had no effective or real choice but to resign.[12] The requisite employer conduct is the essential element.[13]
Consideration
In the present case, it has been determined that Ms Gimbert’s employment relationship with the Ice Cream Shack came to an end on 7 June 2022.[14] It now needs to be determined whether that cessation constituted a dismissal within the meaning of s 386 of the Act.
I am satisfied on the evidence that Ms Gimbert was dismissed within the meaning of s 386(1)(a) of the Act on 7 June 2022. Ms Rinkin’s actions were the principal contributing factor which resulted, directly or consequentially, in the termination of Ms Gimbert’s employment. In particular, Ms Rinkin:
(a)was clearly angry and frustrated during her discussion with Ms Gimbert on 8 May 2022 that Ms Gimbert had cancelled her shift for later that day;
(b)told Ms Gimbert on 8 May 2022 that there would be ramifications and she would need to redo the roster for May to suit the needs of her business;
(c)made the unilateral decision, following Ms Gimbert’s cancellation of her shift on 8 May 2022, to take away from Ms Gimbert and allocate to other employees the shifts Ms Gimbert had previously been rostered to work for the balance of May 2022 and the first week of June 2022;
(d)did not send Ms Gimbert a copy of the roster for June 2022 and the first week of July 2022;
(e)removed Ms Gimbert’s name from the roster for June 2022 and the first week of July 2022;
(f)removed Ms Gimbert’s access to the Box App on 7 June 2022. I do not accept Ms Rinkin’s evidence that she did this in the process of “tidying up”. No other employees had their access to the Box App removed at this time. Further, the removal of Ms Gimbert’s access to the Box App on 7 June 2022 coincided with the commencement of the June roster on 8 June 2022, from which Ms Gimbert had been removed; and
(g)did not communicate with Ms Gimbert following their discussion on 8 May 2022.
Ms Gimbert interpreted Ms Rinkin’s conduct in this regard to be a communication of the fact that she had been dismissed from her employment with the Ice Cream Shack. In my opinion, any reasonable person in the position of Ms Gimbert would have formed the same view.
For the reasons given, I find that on 7 June 2022 Ms Gimbert was dismissed within the meaning of s 386(1)(a) of the Act.
Other matters to be considered before merits
Section 396 of the Act sets out four matters which I am required to decide before I consider the merits of the application
There is no dispute between the parties and I am satisfied on the evidence that:
(a)Ms Gimbert’s unfair dismissal application was made within the period required in s 394(2) of the Act;
(b)Ms Gimbert is a person protected from unfair dismissal;
(c)Ms Gimbert’s dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d)Ms Gimbert’s dismissal was not a case of genuine redundancy within the meaning of the Act.
Harsh, Unjust or Unreasonable
I must take into account, in determining whether Ms Gimbert’s dismissal was harsh, unjust or unreasonable, the matters set out in s 387 of the Act.
Section 387(a) – valid reason related to capacity or conduct
It is necessary to consider whether the employer had a valid reason for the dismissal of the employee, although it need not be the reason given to the employee at the time of the dismissal.[15] In order to be “valid”, the reason for the dismissal should be “sound, defensible and well founded”[16] and should not be “capricious, fanciful, spiteful or prejudiced.”[17]
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.[18] The question the Commission must address is whether there was a valid reason for the dismissal related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees).[19] Capacity is the employee’s ability to do the job as required by the employer.[20] Capacity also includes the employee’s ability to do the work they were employed to do.[21]
The appropriate test for capacity is not whether the employee was working to their personal best, but whether the work was performed satisfactorily when looked at objectively.[22]
It is not enough for an employer to establish that it had a reasonable belief that the termination was for a valid reason.[23] The Commission must make a finding, on the evidence provided, whether, on the balance of probabilities, the conduct occurred or the performance was satisfactory.[24]
In cases involving alleged misconduct, a reason for dismissal would be valid if conduct occurred and it justified termination. There would not be a valid reason for termination if the conduct did not occur or it did occur but did not justify termination (because, for example, it involved a trivial misdemeanour).[25]
The Ice Cream Shack ran its primary case on the basis that it did not dismiss Ms Gimbert. In the alternative, the Ice Cream Shack submitted that it had a valid reason to dismiss Ms Gimbert on that basis that:
(a)Ms Gimbert was employed pursuant to a casual contract of employment and did not have any guarantee of ongoing employment or hours of work; and
(b)Ms Gimbert had developed a systematic habit of withdrawing from shift hours before they were due to commence, leading to Ms Rinkin being required to find a suitable replacement to cover the shift at the last minute.
As to the first limb of this argument, the fact that an employer may have a contractual right to terminate the employment of a casual employee such as Ms Gimbert on one hour’s notice and Ms Gimbert did not have any guarantee of ongoing employment or hours of work does not bear on the question of whether the employer had a sound, defensible and well founded reason for the dismissal.[26] The issue that needs to be addressed under s 387(a) of the Act is whether the Ice Cream Shack had a valid reason for its decision to terminate Ms Gimbert’s employment.
The second limb of this argument is not made out on the evidence before the Commission. That evidence establishes that, about four hours before her shift was due to commence on 8 May 2022, Ms Gimbert withdrew from the shift she had agreed on the previous day to work. I accept that Ms Gimbert’s conduct in that regard caused inconvenience to the Ice Cream Shack, and could have been detrimental to the Ice Cream Shack’s business if it had not been able to find a replacement employee, together with a person to lock up the business, in the relatively short period of time available between 9am and 1pm on 8 May 2022. However, the evidence does not support the contention that Ms Gimbert had developed a systematic habit of withdrawing from shift hours before they were due to commence. Ms Rinkin accepted that Ms Gimbert was not an unreliable employee. Ms Gimbert accepts that she withdrew from a couple of shifts during her employment with the Ice Cream Shack. But as explained above, the documentary evidence tendered by the Ice Cream Shack in the form of text messages between Ms Gimbert and Ms Rinkin shows each of them making requests for shift swaps and extra hours and both parties working constructively to find mutually convenient solutions. Where requests for changes could not be accommodated, the text messages show the other party carrying through with the original shift as per the roster.
In addition to the considerations set out in the previous paragraph, the following matters are relevant to my assessment of whether Ms Gimbert’s conduct in cancelling her shift on 8 May 2022 justified her dismissal:
(a)the fact that Ms Gimbert was not originally rostered to work on 8 May 2022;
(b)Ms Gimbert only agreed on 7 May 2022 to work on 8 May 2022, at which time Ms Gimbert was not aware of the plans which had been put in place by her children for Mother’s Day;
(c)the plans put in place by Ms Gimbert’s children for Mother’s Day were special;
(d)Ms Gimbert gave Ms Rinkin about four hours’ notice of her unavailability on 8 May 2022;
(e)the Ice Cream Shack was able to find a replacement (trainee) employee and a person to lock up the store at the end of the day; and
(f)subject to Ms Gimbert’s concession that she withdrew from rostered shifts a couple of times during her employment with the Ice Cream Shack, what happened on 8 May 2022 was not a common or regular event.
In all the circumstances, my assessment is that the Ice Cream Shack did not have a sound, defensible or well-founded reason for Ms Gimbert’s dismissal related to her capacity or conduct. The fact that Ms Gimbert cancelled a shift she had previously agreed to work supports the argument that the Ice Cream Shack had a valid reason for her dismissal, but I am persuaded by the balance of the matters identified in the previous two paragraphs that Ms Gimbert’s dismissal on account of her conduct on 8 May 2022 was not justified, in the sense that it did not provide the Ice Cream Shack with a sound, defensible and well founded reason for her dismissal.
That there was no valid reason for Ms Gimbert’s dismissal weighs in favour of Ms Gimbert’s argument that she was unfairly dismissed.
Section 387(b) – notification of reason
Section 387(b) relates to notification of “that reason”, being a reason related to the person’s capacity or conduct.
There is no dispute that the Ice Cream Shack did not notify Ms Gimbert of the reason for her dismissal because it did not consider that she had been dismissed. The fact that Ms Gimbert was not notified of the reason for her dismissal weighs in favour of Ms Gimbert’s argument that she was unfairly dismissed.
Section 387(c) – opportunity to respond
There is no dispute that the Ice Cream Shack did not give Ms Gimbert an opportunity to respond to the reason for her dismissal because it did not consider that she had been dismissed. The fact that Ms Gimbert was not given an opportunity to respond weighs in favour of Ms Gimbert’s argument that she was unfairly dismissed.
Section 387(d) – support person
The Ice Cream Shack did not unreasonably refuse to allow Ms Gimbert to have a support person present to assist at any discussions relating to her dismissal. Accordingly, s 387(d) is a neutral factor in relation to the question of whether Ms Gimbert’s dismissal was harsh, unjust or unreasonable.
Section 387(e) – warning about unsatisfactory performance
Ms Gimbert’s dismissal did not relate to any unsatisfactory performance by her. It follows that s 387(e) is also a neutral factor in relation to the question of whether Ms Gimbert’s dismissal was harsh, unjust or unreasonable.
Section 387(f)&(g) – size of enterprise and dedicated human resource management specialists
The Ice Cream Shack is a small employer. There is no suggestion in the evidence that the Ice Cream Shack had any dedicated human resource management specialists or expertise in its enterprise at the time Ms Gimbert’s employment was terminated. In my view, these matters had an impact on the procedures followed in effecting Ms Gimbert’s dismissal. In particular, if relevant expertise had been available to the Ice Cream Shack, I am satisfied that the Ice Cream Shack would have communicated with Ms Gimbert to clarify the position in relation to her ongoing availability. In all the circumstances, I accept that these factors (s 387(f) & (g)) weigh, to some extent, in support of a conclusion that Ms Gimbert’s dismissal was not harsh, unjust or unreasonable.
Section 387(h) – other relevant matters
There is no suggestion in the evidence that Ms Gimbert had any past history of misconduct or poor performance in her relatively short period of employment with the Ice Cream Shack.
The matters I have identified in paragraph [55] above and taken into account in assessing whether there was a valid reason for Ms Gimbert’s dismissal are also relevant to my assessment of the seriousness of Ms Gimbert’s conduct and support her contention that her dismissal was disproportionate to her conduct.
There are no other relevant matters.
Conclusion on harsh, unjust or unreasonable dismissal
After considering each of the matters specified in s 387 of the Act, my evaluative assessment is that the Ice Cream Shack’s dismissal of Ms Gimbert was harsh and unreasonable. Ms Gimbert’s cancellation of her shift on 8 May 2022 did not, in all the circumstances, justify her dismissal. The absence of a valid reason for dismissal weighs heavily in support of a conclusion that the dismissal was unreasonable and therefore unfair. But even if I had found that there was a valid reason for dismissal, I would have concluded that Ms Gimbert’s dismissal was harsh and therefore unfair because, when the seriousness of Ms Gimbert’s conduct on 8 May 2022 is considered in context and together with the matters I have identified in paragraph [55] above, it leads to a clear conclusion, in my view, that Ms Gimbert’s dismissal was disproportionate to her conduct.
Remedy
Having found that Ms Gimbert was protected from unfair dismissal, and that her dismissal was harsh and unreasonable, it is necessary to consider what, if any, remedy should be granted to her. Ms Gimbert does not wish to be reinstated to employment with the Ice Cream Shack. In any event, I am satisfied that it would be inappropriate to reinstate Ms Gimbert in all the circumstances, particularly in light of the obvious lack of trust between Ms Gimbert and Ms Rinkin.
Section 390(3)(b) of the Act provides that the Commission may only issue an order for compensation if it is appropriate in all the circumstances. A compensation remedy is designed to compensate an unfairly dismissed employee in lieu of reinstatement for losses reasonably attributable to the unfair dismissal within the bounds of the statutory cap on compensation that is to be applied.[27]
Having regard to all the circumstances of the case, including the fact that Ms Gimbert has suffered financial loss as a result of her unfair dismissal, I consider that an order for payment of compensation to her is appropriate.
It is necessary therefore for me to assess the amount of compensation that should be ordered to be paid to Ms Gimbert. In assessing compensation, I am required by s 392(2) of the Act to take into account all the circumstances of the case including the specific matters identified in paragraphs (a) to (g) of this subsection.
I will use the established methodology for assessing compensation in unfair dismissal cases which was set out in Sprigg v Paul Licensed Festival Supermarket[28] and applied and elaborated upon in the context of the current Act by Full Benches of the Commission in a number of cases.[29] The approach to calculating compensation in accordance with these authorities is as follows:
Step 1: Estimate the remuneration the employee would have received, or have been likely to have received, if the employer had not terminated the employment (remuneration lost).
Step 2: Deduct monies earned since termination.
Step 3: Discount the remaining amount for contingencies.
Step 4: Calculate the impact of taxation to ensure that the employee receives the actual amount she or she would have received if they had continued in their employment.
Step 5: Apply the legislative cap on compensation.
Remuneration Ms Gimbert would have received, or would have been likely to receive, if she had not been dismissed (s 392(2)(c))
Like all calculations of damages or compensation, there is an element of speculation in determining an employee’s anticipated period of employment because the task involves an assessment of what would have been likely to happen in the future had the employee not been dismissed.[30]
I am satisfied on the balance of probabilities that if Ms Gimbert had not been dismissed on 7 June 2022, she would have remained employed by the Ice Cream Shack until 22 July 2022. I make this finding notwithstanding Ms Gimbert’s contention that she would have remained in employment with the Ice Cream Shack for a long time. The evidence points to a different conclusion. In particular, the availability of work at the Ice Cream Shack over the winter months was less than during other parts of the year. It led to two other employees leaving the Ice Cream Shack to obtain alternative employment and shift lengths being reduced to 3 hours, other than during school holidays. One new employee was engaged. The net loss of one employee gave rise to the possibility of some additional hours for some staff. But Ms Rinkin plainly took a dim view of Ms Gimbert’s reliability as a result of her cancellation, at relatively short notice, of her shift on 8 May 2022. I am satisfied that these events would have resulted in Ms Gimbert’s hours of work as a casual employee being significantly reduced after 7 June 2022. In addition, there is the realistic prospect that Ms Gimbert’s relationship with Ms Rinkin would have continued to deteriorate as a result of the events which took place on 8 May 2022. In my assessment, these factors would more likely than not have ended in the cessation of Ms Gimbert’s employment with the Ice Cream Shack, whether by dismissal or resignation. The most likely scenario available on the evidence is that Ms Gimbert would have been told about the availability of an alternative job at the local nursing home and Ms Gimbert would have applied for, and been successful in obtaining, that job, which would have resulted in her ceasing employment with the Ice Cream Shack and commencing at the nursing home on 23 July 2022.
I am satisfied on the balance of probabilities that if Ms Gimbert had not been dismissed on 7 June 2022 she would have been rostered by the Ice Cream Shack to work one three hour shift per week in the period from 8 June 2022 until 22 July 2022, save for the two weeks of school holidays in the weeks commencing Monday, 4 July 2022 and Monday, 11 July 2022, during which time I consider that she would most likely to have been rostered to work two four hour shifts per week. Ms Gimbert would have been entitled to the following payments had she worked these weeks:
| Pay period (Wed to Tue) | Hours worked | Pay rate | Sub-total |
| 8-14 June 2022 | 3 | $30.41[31] | $91.23 |
| 15-21 June 2022 | 3 | $30.41 | $91.23 |
| 22-28 June 2022 | 3 | $30.41 | $91.23 |
| 29 June – 5 July 2022 | 3 | $30.41 | $91.23 |
| 6-12 July 2022[32] | 8 (2 x 4 hour shifts) | $31.81[33] | $254.48 |
| 13-19 July 2022[34] | 8 (2 x 4 hour shifts) | $31.81 | $254.48 |
| 20-26 July 2022 | 3 | $31.81 | $95.43 |
| Total | $969.31 |
Accordingly, I am satisfied that $969.31 is the remuneration that Ms Gimbert would have received, or would have been likely to receive, if she had not been dismissed.
Remuneration earned (s 392(2)(e)) and income reasonably likely to be earned (s 392(2)(f))
I accept Ms Gimbert’s evidence that she did not earn any remuneration in the period from 8 June 2022 to the commencement of her new job on 23 July 2022. Accordingly, $969.31 is the gross amount of remuneration Ms Gimbert would likely have earned had she not been dismissed by the Ice Cream Shack and instead continued to be employed in the Ice Cream Shack until 22 July 2022. This calculation is intended to put Ms Gimbert in the position she would have been in but for the termination of her employment.[35]
Viability (s 392(2)(a))
No submission was made on behalf of the Ice Cream Shack that any particular amount of compensation would affect the viability of the Ice Cream Shack’s enterprise.
My view is that no adjustment will be made on this account.
Length of service (s 392(2)(b))
My view is that Ms Gimbert’s period of service with the Ice Cream Shack (about seven months) does not justify any adjustment to the amount of compensation.
Mitigation efforts (s 392(2)(d))
The evidence establishes that Ms Gimbert made reasonable efforts to obtain alternative employment following her dismissal. In particular, I rely on the matters set out in paragraphs [26] and [27] above. I consider that it was reasonable of Ms Gimbert to limit her searches for alternative employment in June and July 2022 to the Tea Gardens and Hawks Nest area, where she resides. Such a limitation was reasonable having regard to the fact that Ms Gimbert lives in that area, she has a school aged child (about 5 years old), after school care is not available at the school, the trip to Newcastle (where more employment is available) is about an hour, and the petrol and other vehicle costs associated with extensive work-related travel would be difficult for Ms Gimbert to meet.
In all the circumstances, my view is that Ms Gimbert acted reasonably to mitigate the loss suffered by her because of the dismissal and I do not consider it appropriate to reduce the compensation on this account.
Any other relevant matter (s 392(2)(g))
It is necessary to consider whether to discount the remaining amount ($969.31) for “contingencies”. This step is a means of taking into account the possibility that the occurrence of contingencies to which Ms Gimbert was subject might have brought about some change in earning capacity or earnings.[36] Positive considerations which might have resulted in advancement and increased earnings are also taken into account.
The discount for contingencies should only be applied in respect to an “anticipated period of employment” that is not actually known, that is a period that is prospective to the date of the decision.[37]
Because I am looking in this matter at an anticipated period of employment which has already passed (8 June 2022 to 22 July 2022), there is no uncertainty about Ms Gimbert’s earnings, capacity or any other matters during that period of time.
In all the circumstances, my view is that it is not appropriate to discount or increase the figure of $969.31 for contingencies.
Save for the matters referred to in this decision, my view is that there are no other matters which I consider relevant to the task of determining an amount for the purposes of an order under s 392(1) of the Act.
I have considered the impact of taxation, but my view is that I prefer to determine compensation as a gross amount and leave taxation for determination.
Misconduct (s 392(3))
Ms Gimbert did not commit any misconduct, so my view is that this has no relevance to the assessment of compensation.
Shock, distress or humiliation, or other analogous hurt (s 392(4))
I note that in accordance with s 392(4) of the Act, the amount of compensation calculated does not include a component for shock, humiliation or distress.
Compensation cap (s 392(5)-(6))
The amount of $969.31 is less than half the amount of the high income threshold immediately before the dismissal. It is also less than the total amount of remuneration to which Ms Gimbert was entitled in her employment with the Ice Cream Shack during the 26 weeks immediately before her dismissal. In those circumstances, my view is that there is no basis to reduce the amount of $969.31 by reason of s 392(5) of the Act.
Instalments (s 393)
No application has been made to date by the Ice Cream Shack for any amount of compensation awarded to be paid in the form of instalments.
Conclusion on compensation
In my view, the application of the Sprigg formula does not, in this case, yield an amount that is clearly excessive or clearly inadequate. Accordingly, my view is that there is no basis for me to reassess the assumptions made in reaching the amount of $969.31.[38]
For the reasons I have given, my view is that a remedy of compensation in the sum of $969.31 (less taxation as required by law) in favour of Ms Gimbert is appropriate in the circumstances of this case. An order will be made to that effect.
DEPUTY PRESIDENT
Appearances:
Ms A Gimbert on her own behalf;
Mr M Hickey, solicitor, for the Respondent.
Hearing details:
2022.
Newcastle
16 September (by videoconference).
[1] Gimbert v Tea Gardens Ice Cream Shack[2022] FWC 1659 at [3] & [16]-[17]
[2] See, for example, Hearing Book at pp 122 and 125
[3] Ayub v NSW Trains[2016] FWCFB 5500 at [36]
[4] Humberstone v Northern Timber Mills (1949) 79 CLR 389 at 404; Stevens v Brodribb Sawmilling Co. Pty Ltd (1986) 160 CLR 16 at 24 & 35; Forstaff v Chief Commissioner of State Revenue (2004) 144 IR 1 at [91]
[5] Bupa Aged Care Australia Pty Ltd v Tavassoli[2017] FWCFB 3941 at [45], applying Koutalis v Pollett [2015] FCA 1165; 235 FCR 370 at [43]
[6] NSW Trains v James[2022] FWCFB 55 at [45]
[7] Mohazab v Dick Smith Electronics Pty Ltd [1995] IRCA 625; (1995) 62 IR 200
[8] Mohazab v Dick Smith Electronics Pty Ltd [1995] IRCA 625; (1995) 62 IR 200
[9] Visscher v The Honourable President Justice Giudice (2009) 239 CLR 361 at [53]-[55]; NSW Trains v James[2022] FWCFB 55 at [62]; Abandonment of Employment [2018] FWCFB 139 at [21]
[10] Koutalis v Pollett [2015] FCA 1165 at [43]; Canberra Urology Pty Ltd v Lancaster[2021] FWCFB 1704 at [30]
[11] Koutalis v Pollett [2015] FCA 1165 at [43]; Canberra Urology Pty Ltd v Lancaster[2021] FWCFB 1704 at [30]
[12] Bupa Aged Care Australia Pty Ltd v Tavassoli[2017] FWCFB 3941 at [47(2)]
[13] Bupa Aged Care Australia Pty Ltd v Tavassoli[2017] FWCFB 3941 at [47(2)]
[14] Gimbert v Tea Gardens Ice Cream Shack[2022] FWC 1659 at [3] & [16]-[17]
[15] Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-8
[16] Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373
[17] Ibid
[18] Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at 685
[19] Ibid
[20] Ibid at 684
[21] Webb v RMIT University[2011] FWAFB 8336 (Drake SDP, Hamilton DP, Jones C, 8 December 2011) at [6]
[22] Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport (2000) 98 IR 137 at [62]
[23] Ibid
[24] King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) Print S4213 [24]
[25] Sydney Trains v Hilder[2020] FWCFB 1373 at [26(3)]
[26] Ibid at [26(6)]
[27] Kable v Bozelle, Michael Keith T/A Matilda Greenbank [2015] FWCFB 3512 at [17]
[28] (1998) 88 IR 21
[29] Tabro Meat Pty Ltd v Heffernan [2011] FWAFB 1080; Read v Golden Square Child Care Centre [2013] FWCFB 762; Bowden v Ottrey Homes Cobram [2013] FWCFB 431
[30] Double N Equipment Hire Pty Ltd v Humphries[2016] FWCFB 7206 at [16]-[17]
[31] Ms Gimbert’s ordinary hourly rate as a level 3 casual employee (in charge of two or more people) under the Fast Food Industry Award 2020 was $30.41 in June 2022.
[32] NSW school holidays were from Monday, 4 July 2022 to Friday, 15 July 2022
[33] The ordinary hourly rate of pay for a level 3 casual employee (in charge of two or more people) under the Fast Food Industry Award 2020 was increased to $31.81 with effect from the employee’s first full pay period on or after 1 July 2022, which would have been 6-12 July 2022 had Ms Gimbert remained employed by the Ice Cream Shack, having regard to the fact that the Ice Cream Shack’s pay periods commence on a Wednesday and conclude on the following Tuesday (PR740676)
[34] NSW school holidays were from Monday, 4 July 2022 to Friday, 15 July 2022
[35] Bowden at [24], citing Ellawala v Australian Postal Corporation Print S5109 at [35]
[36] Ellawala v Australian Postal Corporation Print S5109 at [36]
[37] Enhance Systems Pty Ltd v Cox PR910779 at [39]
[38] Smith v Moore Paragon Australia Ltd (2004) 130 IR 446 at [32]
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