Angelina Moore-Tabuteau v Albury Wodonga Community Network Incorporated

[2015] FWC 1746

[2015] FWC 1746

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Angelina Moore-Tabuteau
v
Albury Wodonga Community Network Incorporated
(U2014/8962)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 13 MARCH 2015

Application for relief from unfair dismissal.

[1] Ms Angelina Moore-Tabuteau claims that the termination of her employment by the Albury Wodonga Community Network Incorporated (the Association) was unfair.

[2] The Association did not file a response to the application nor did any representative attend the hearing of this matter.

[3] Ms Wendy Grove, who was the public officer of the Association, advised on 28 October 2014 that the Association no longer existed and all the members of the Board had resigned.

[4] The advice stated that the Board had asked the Fair Work Commission to appoint an administrator. Of course the Fair Work Commission plays no role in the administration of incorporated associations. There was no evidence that the Association had been placed in administration in accordance with the Associations Incorporations Act 2009 (NSW).

[5] The notices of listing were sent to the registered address of the Association. Those notices were returned to the Commission. However I am satisfied that the notices were served properly and that the Association was on notice of the hearing.

[6] Ms Moore-Tabuteau was the Chief Executive Officer of the Association. She had been employed from 20 June 2013 until her employment was terminated on 22 August 2014. She had initially been employed on a three month casual basis but on 22 September 2013 she was offered the position on a full time basis for six months. In May 2014, a performance review was undertaken and she was assessed positively.

[7] Ms Moore-Tabuteau gave evidence that on 4th August 2014 she received a letter from Mr Michael Whiteside, a director, on behalf of the Board, advising her that that the Board no longer had confidence in her ability to fulfil the role. In that letter, she was advised that her tenure as CEO would be reviewed. Ms Moore-Tabuteau responded to that letter. A meeting was then held on 6 August 2014 with some board members and on 6 August 2014 Mr Whiteside advised her that the Board did not intend sacking her or asking for her resignation. She was directed to take two weeks leave. The Board proposed some further training for Ms Moore-Tabuteau and made some other suggestions. She was advised that the Board would be recruiting for the CEO position and she was invited to apply.

[8] On 21 August 2014, the Board met and resolved to dismiss her but with an offer that she be allowed to resign.

[9] Mr Colin Alcock, the Chair of the Board at this time, gave evidence that he had recommended to the Board that there be an agreed arrangement whereby Ms Moore-Tabuteau resign her employment and that she be paid notice and her entitlements. This was rejected by the Board and Mr Alcock resigned. In his resignation letter he referred to “unsubstantiated allegations and innuendoes”. He pointed to the need for an independent investigation. He also gave evidence that the Board was prepared to terminate her employment without providing her an opportunity to respond to the allegations.

[10] On 22 August 2014, Mr Whiteside contacted Ms Moore-Tabuteau who informed her of the resolution and told her that she had been sacked but had the opportunity to resign. There was to be a meeting on 25 August 2014. She was told she could bring a support person. The meeting did not occur and she was not contacted again.

Was the termination of employment harsh, unjust or unreasonable?

[11] 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);

[12] In circumstances where the Association did not give evidence at the hearing I am unable to find that there was a valid reason for the termination of Ms Moore-Tabuteau’s employment. The concerns raised in the letter of 4 August 2014 did not set out any allegation of serious misconduct which would justify termination without notice. Ms Moore-Tabuteau was not provided with any explanation about why her employment was terminated.

s387(b) whether Ms Moore-Tabuteau was notified of that reason;

[13] Ms Moore-Tabuteau was not notified of the reason her employment was terminated.

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

[14] Ms Moore-Tabuteau was not given an opportunity to respond.

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

[15] No such discussion occurred.

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

[16] I am unable to conclude that the dismissal was for 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;

[17] No submissions were made in relation to 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;

[18] The Association is an unincorporated association and there is no evidence that it had human resource management specialists or expertise. However I am unable to conclude that this explains the procedure adopted by the Board. It is clear that at the board meeting the lack of a fair process was put to the Board by its Chair.

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

[19] Ms Moore-Tabuteau’s employment was terminated without notice and without the payment of her entitlements. It was her evidence that she was owed $42,021.01. This composed her notice, payment for time in lieu, professional development leave and compensation for 10 weeks spent out of work.

Conclusion

[20] For the reasons set out above I find that the termination of Ms Moore-Tabuteau employment was harsh, unjust and unreasonable. There was no valid reason for the termination of her employment and she was denied any semblance of procedural fairness. I understand that people get involved in not for profit associations to improve the lives of people in the community and that board members do so in a voluntary capacity. However employees who work for such organisations are entitled to be treated with respect and dignity. Having told Ms Moore-Tabuteau that, despite the advice the Board had lost confidence in her as CEO, she would not be sacked or asked to resign, within a short period of time without any warning the Board did exactly that. The failure to pay the outstanding entitlements made her situation more difficult.

Remedy

[21] Ms Moore-Tabuteau is not seeking reinstatement of his employment.

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

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

[23] It is clear that the Association has ceased to function. There was no evidence about any impact that an order would have on the viability of the Association.

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

[24] Ms Moore-Tabuteau had worked for the Association for just over a year. This is a short period of employment but I see no reason to adjust the amount of compensation for this.

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

[25] Had Ms Moore-Tabuteau not been dismissed she would have worked until the Association ceased to operate in or around late September 2014 when the Board resigned. Had she been employed at the time that Association closed its doors, she would have been paid in lieu of notice and she would have been entitled to four weeks redundancy pay as well as two weeks’ pay in lieu of notice. Ms Moore-Tabuteau was paid $52.99 per hour. She would have received a total of ten weeks pay being $20,136.20.

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

[26] Ms Moore-Tabuteau sought other work and was able to obtain work from 31 October 2014.

(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;

[27] Ms Moore-Tabuteau earned the same hourly rate for work performed after 31 October 2014.

(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;

[28] Given my order this is not relevant.

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

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

Conclusion

[30] Having regard to the matter set out above I have concluded that it is appropriate to award Ms Moore-Tabuteau ten weeks compensation. This represents the amount she would have earned had she remained in employment. I therefore order the Association pay Ms Moore-Tabuteau $20,136.20 less tax according to law plus an amount of $1,912.94 to her superannuation fund. The monies are to be paid within 14 days of the making of the order.

DEPUTY PRESIDENT

Appearances:

A. Moore-Tabuteau on her own behalf.

No appearance for the Respondent.

Hearing details:

2015.

Wodonga:

10 February.

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