Arpita Das v Prestigous Services (Aust) Pty Ltd t/a Mac-Field Medical Practice

[2019] FWC 7628

[2019] FWC 7628

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Arpita Das
v
PRESTIGOUS SERVICES (AUST) PTY LTD t/a Mac-Field Medical Practice
(U2019/5876)

COMMISSIONER CAMBRIDGE SYDNEY, 21 NOVEMBER 2019

Unfair dismissal - application made out of time - exceptional circumstances identified - extension of time granted - s. 382 whether applicant as a casual employee was protected from unfair dismissal - applicant absent on notified leave - no advice that leave was not approved - upon return from leave dismissal implemented by telephone - no dismissal asserted - manifest absence of fairness - dismissal found to be harsh, unjust and unreasonable - compensation Ordered.

[1] This Decision involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009 (the Act). The application was made by Arpita Das (the applicant). The respondent employer is PRESTIGOUS SERVICES (AUST) PTY LTD t/a Mac-Field Medical Practice ABN: 47 161 410 653 (the employer).

[2] The application was filed on 28 May 2019, and it indicated that the date of the applicant’s dismissal was 6 May 2019. Consequently, the application was not made within the 21 day time limit prescribed by subsection 394(2)(a) of the Act.

[3] On 24 June 2019, the employer filed a Form F3 response to the application, in which a jurisdictional objection to the application was identified on the basis that the applicant had not been dismissed. Relevantly the Form F3 stated inter alia, “The employee has not been notified of a dismissal. Employee was advised that due to her 8 week absence had to employ another staff member, as existing staff battling to cover 7 day shift.”

[4] The file indicates that conciliation of the matter occurred on 18 July 2019. However, the matter was not resolved, and 29 July 2019, Catanzariti VP of the Fair Work Commission (the Commission) sent a letter to the applicant which inter alia, identified that the application had been made out of time and that for the matter to proceed the applicant would have to establish that exceptional circumstances existed and warranted the granting of an extension of time. The applicant was required to provide any response or written statement regarding exceptional circumstances that would be asserted so as to permit an extension of time.

[5] On 5 August 2019, the applicant provided written submissions in support of obtaining an extension of time. On 12 August 2019, the file was allocated to the Commission as currently constituted. On 2 September 2019, the matter was the subject of a Pre-Hearing Conference/Conciliation, at which time the Commission issued Directions for the Parties to file and serve all evidence and other material upon which each would rely in respect to; the issue of any extension of time; and any jurisdictional objections; and the substantive merits of the case.

[6] The matter has proceeded to arbitration before the Commission in a Hearing conducted in Sydney on 21 October 2019. The Hearing dealt with evidence and submissions which encompassed; the issue of any extension of time for the application to proceed; and, the substantive issues of the alleged unfair dismissal; together with aspects of the employer’s defence of the matter. The employer’s defence involved the assertion that the applicant had not been dismissed, and, inferentially, whether the applicant, as a casual employee, was a person protected from unfair dismissal. In addition, although it was not a matter raised by the employer, the Commission has been required to consider whether the dismissal of the applicant was consistent with the Small Business Fair Dismissal Code (the SBFD Code).

[7] At the Hearing, the applicant was not represented. However, she was assisted with the presentation of her case by her husband, Mr R Nandi. The applicant provided evidence as the only witness called in support of the unfair dismissal claim. Dr Z Quazi, a Director of the employer’s business, appeared for the employer at the Hearing. Dr Quazi introduced evidence from Mr H Arju, the employer’s Operations Manager, who was the only witness called to provide evidence on behalf of the employer.

Factual Background

[8] The employer is a small business employer, which at the time of the alleged termination of employment of the applicant, employed less than 15 persons. The employer conducts a business operating as a general medical practice located in the Sydney suburb of Macquarie Fields (the Medical Practice).

[9] The applicant was employed for a period of just over 2 years. The applicant was engaged as a casual receptionist and her work was covered by the Health Professionals and Support Services Award 2010 MA000027 (the Award). The applicant was provided with a letter of employment 1 which described the applicant’s position as Medical Receptionist, Level 1 casual. The applicant’s letter of employment also contained the terms and conditions of employment at the Mac-Field Medical Practice which indicated inter alia, that the applicant’s position required her to work a minimum of 12 hours per week, and that termination of employment (other than summary termination of employment,) would require the employer to provide four weeks’ notice or payment in lieu thereof, and that the applicant was required to provide four weeks’ notice of any resignation from employment.

[10] The applicant ordinarily worked on fixed days each week being Monday, Tuesday, Wednesday and Friday, between the hours of 5pm to 9pm. However, the applicant did not always work on each of these evenings every week, and her hours fluctuated when on occasions, she did not work on all four weekday evenings, and on other occasions she worked on weekends or at other times of the week. In the last 20 weeks of her employment the applicant’s fortnightly hours fluctuated between a minimum of 32, and a maximum of 70.25, with an average of 17.75 hours worked per week.

[11] The work of the applicant was without any recorded complaint or warning. The employer regarded the applicant as a competent, conscientious and diligent worker, and she was described as a “good worker” 2 who was to be kept on the employer’s casual staff employment lists such that she would get priority when any further employment opportunity arose.

[12] In mid-November 2018, the applicant provided the employer with advance notice that she was going to take an extended holiday in 2019 from about mid-March until the end of May. The extended holiday would involve international travel. The applicant provided this advice by way of a handwritten entry in a communications book that was used by the staff at the Medical Practice. In response to her entry in the communications book, the applicant was given an instruction via a handwritten entry in the communications book, to telephone the employer’s Operations Manager, Mr Arju.

[13] The applicant had a telephone conversation with Mr Arju who requested that the applicant find someone to replace her during the period of her absence. The applicant contacted a friend and former employee who was prepared to work as the applicant’s replacement during her absence. However, Mr Arju did not consider that particular person would be a suitable replacement employee. The applicant was unable to find any other potential replacement employee.

[14] On 27 February 2019, the applicant made a further handwritten entry in the communications book which included the dates that she had finalised for her absence being from 14 March until 4 May, with resumption of her usual duty on Monday, 6 May 2019. At around the same time, February 2019, the applicant also completed a leave request form specifying the period of leave as the first day of leave being 15 March, and last day of leave being 3 May 2019. The applicant left this leave request form on the Practice Manager’s desk.

[15] The applicant was not provided with any formal approval or other advice from the employer about her notified period of leave. However, the uncontested evidence of the applicant was that it was commonplace in the Medical Practice for leave forms to be left unsigned and not formally actioned. On the last shift worked by the applicant before her leave, 13 March, Mr Arju asked the applicant to provide him with the door keys to the Medical Practice. The applicant complied with this request. At the time, the applicant did not consider the request for the door keys to be of any significance, and there was no further discussion between her and Mr Arju regarding her absence.

[16] The applicant then undertook her international travel, and she and her husband returned to Australia on 5 May 2019. Around midday of the following day, 6 May 2019, the applicant telephoned Mr Arju to inform him of her return to Australia and to confirm that she would work her usual shift that afternoon from 5 pm. However, Mr Arju informed the applicant that she was no longer required, and her position had been replaced after she had taken leave. The applicant was shocked to receive this advice, as was her husband when she later told him what Mr Arju had said to her over the telephone.

[17] The applicant was unsure if her status as a casual employee meant that her employment could be terminated in the manner Mr Arju had advised. However, the applicant believed that she had been underpaid, and she sought legal advice in respect of her employment, which involved her husband contacting the Liverpool Legal Aid office on 10 May 2019. The Legal Aid office provided the applicant with the first available appointment with a Legal Aid lawyer which was at 3 pm on 28 May 2019, at the Legal Aid office in Fairfield.

[18] The applicant attended the appointment on 28 May, and she was provided with advice by a Legal Aid lawyer. The applicant was advised that she had a potential case for unfair dismissal. However, she was also told that any application for unfair dismissal needed to be made within 21 days from the date of the dismissal, which she understood to be 6 May 2019, as per the telephone conversation with Mr Arju. Consequently, the applicant assessed that any unfair dismissal application would, at that time, be one day late. In light of this assessment, the applicant and her husband quickly commenced to make an online application for unfair dismissal remedy which was successfully filed at 9:29 pm that evening.

[19] Following the termination of her employment, the applicant has unsuccessfully sought alternative employment. The applicant has not sought reinstatement, but alternatively, monetary compensation as remedy for her alleged unfair dismissal.

The Case for the Applicant

[20] The applicant’s husband Mr Nandi made verbal submissions in elaboration of documentary submission materials that had been filed. The documentary submissions of the applicant firstly addressed the issue of the application having been filed out of time.

[21] The applicant submitted that she and her husband had no experience or knowledge of unfair dismissal laws, and they contacted Legal Aid for help, primarily because they believed that the applicant had been underpaid. However, the first appointment that could be arranged was on 28 May, and they had no idea that this would be one day after the 21 day time limit.

[22] The applicant stated that as English is her second language, she had some difficulties understanding information that she discovered on the website of the Fair Work Ombudsman. Further, as she grew up in India, the applicant stated that she had never heard of employee rights such as unfair dismissal. In these circumstances, the applicant submitted that it was understandable that she would just wait for the appointment with the Legal Aid lawyer. The applicant submitted that if she had realised that the appointment was after the 21 day time limit then she would not have to deal with a 1-day late scenario.

[23] The submissions made by the applicant also asserted that her claim had very good merits. The applicant submitted that her unfair dismissal claim had a very good chance of success and that the employer was falsely claiming that she was still employed. The applicant submitted that to ensure that justice and rights were provided to Australian taxpaying employees the time for the making of the application should be extended by one day.

[24] The applicant further submitted that her dismissal was unfair. The applicant submitted that her employment was systematic, and that she had been engaged on a regular basis for over two years. The applicant said that she had every expectation of returning to work following her seven week holiday.

[25] In further submissions made on behalf of the applicant by Mr Nandi, criticism was made of the alleged lack of evidence that had been introduced by the employer. In this regard, Mr Nandi stated that he thought that the employer’s Practice Manager would be coming to give evidence or some statement.

[26] Mr Nandi also made submissions that referred to the applicant’s letter of employment and that although the applicant was termed as a casual, she worked regular, systematic hours and she was deemed to be a good employee. Mr Nandi submitted that based on the conduct of the employer, he believed that the circumstances in this case represented a clear case of unfair dismissal. Mr Nandi submitted that the employer misunderstood the rights that existed for casual employees. Mr Nandi said that his wife was a good employee, and she had been unfairly dismissed for which she sought monetary compensation.

The Case for the Employer

[27] Dr Quazi made verbal submissions on behalf of the employer during the Hearing. In addition to the verbal submissions that were made by Dr Quazi, the employer also relied upon the contents of a witness statement made by Mr Arju.

[28] Dr Quazi submitted that there was no dismissal at all, and that the employer had followed the “Fair Act rules” when dealing with casual staff such as the applicant. Dr Quazi said that as a casual staff member the applicant was not required to let the employer know that she was going on leave, however she did “leave an application on the table.” According to the submissions made by Dr Quazi, there was no dismissal at all because the applicant who was a casual, left and this meant that she was automatically terminated.

[29] Dr Quazi made further submissions which referred to what he described as documentation that the employer had provided and which he said came from “Fair Trading Ombudsman.” Dr Quazi submitted that this material clearly illustrated that as the applicant left the job there was no unfair dismissal at all.

[30] Dr Quazi also referred to the applicant’s acknowledgement that the employer’s Medical Practice was giving good service. However, Dr Quazi recognised that there was room for improvement with the employer’s management system, but he said there was always room for improvement.

[31] The submissions made by Dr Quazi returned to the primary assertion that as a casual employee who had left the job without any official approval, there was no dismissal of the applicant. Dr Quazi supported the employer’s submissions that asserted that the casual employees’ terms and conditions as provided by information from the website of the “Fair Works Ombudsman, Australia” meant that there was no dismissal of the applicant.

Consideration

No dismissal

[32] In this case the employer has asserted that the applicant was not dismissed from her employment because she was a casual employee and her absence from work for more than three weeks meant that she was “automatically terminated.” Unfortunately, this proposition fundamentally misconstrues the basis upon which the employment relationship might come to an end as a result of the extended absence of an employee from actual engagement and performance of work.

[33] If an employee is absent from work for an extended period without explanation or in direct contravention of the expressed direction of the employer, then the absence of the employee may be treated by the employer to have represented the abandonment of the employment. A casual employee working on a regular and systematic basis, with a reasonable expectation of ongoing employment, cannot somehow be deemed to have had their employment “automatically terminated” when absent for an extended period when they have provided notice to the employer of that absence, and the employer has not issued any direction that the absence is not approved, and as such, would cause the employment to come to an end.

[34] In this case, it was clear that the applicant provided the employer with advance notice of her intention to be absent from the workplace for an extended period involving international travel. The employer was made aware of the applicant’s absence, and although it provided no express approval for leave of the applicant during that period of absence, it did not indicate that the absence was not approved, and that if the absence was observed it would cause the employment to come to an end. Consequently, when the applicant telephoned Mr Arju on 6 May 2019 to confirm her notified recommencement of the performance of work at 5 pm that day, she was dismissed from her employment when Mr Arju told her that she was no longer required because her position had been replaced by another employee.

[35] As there was a dismissal of the applicant on 6 May 2019, consideration must next deal with the issue of the application having been made out of time.

Out of Time

[36] An application for unfair dismissal remedy must be made within 21 days after the dismissal took effect. However, subsections 394(2)(b) and 394(3) of the Act allow for an extension of the 21 day time period if exceptional circumstances are established.

[37] In this instance, the application was filed at 9:29 pm on 28 May 2019, which was the 22^nd day after the day on which the dismissal took effect. Therefore, the application was not made within the 21 day time period established by subsection 394(2)(a) of the Act. The application was made one day after the expiry of the 21 day time limit.

[38] Subsection 394(3) of the Act provides the Commission with a discretion to extend the time limit of 21 days as fixed by subsection 394(2)(a). Subsection 394(3) is in the following terms:

“(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; and

(c) any action taken by the person to dispute the dismissal; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.”

[39] As can be seen from subsection 394(3), the Commission must be satisfied that there are exceptional circumstances before exercising the discretion to extend time. There are six separate factors set out in paragraphs (a) to (f) which the Commission is required to take into account in respect to establishing the existence of any exceptional circumstances. These particular legislative requirements should be approached having regard for the basic principles that apply in respect to the exercise of any discretion to extend a statutorily prescribed time limit.

[40] Importantly, the onus rests with an applicant to convince the Commission to exercise the discretion to extend time. Although the length of the delay is not specifically mentioned as a factor in subsection 394(3) of the Act, it seems to me that the particular length of any delay should logically be connected to the onus on any applicant seeking the exercise of the discretion to extend time. It would be logical for the length of any delay to amplify the onus on an applicant in broadly exponential terms, such that the longer the delay is, the greater the difficulty is in establishing proper basis for the exercise of the discretion.

[41] Further, the length of the delay might properly be considered having regard for the length of the time limit that the statute prescribes. For instance, a delay of 21 days in circumstances where the time limit was two years must be assessed differently to a delay of 21 days where the time limit was 21 days. Consequently, I believe that the length of the delay should be a factor taken into consideration when exercising the discretion to extend the time period prescribed by subsection 394(2)(a) of the Act.

[42] In this case the delay was one day relevant to the 21 day time limit. Consequently, the delay has represented the shortest possible daily length of any delay. Although, in a practical sense, the delay may be seen to be consistent with an application that was filed during working hours on the following day. Therefore the application could, for practical purposes, be construed to have been two days late.

Subsection 394(3)(a) - The Reason for the Delay

[43] In this instance the applicant asserted that the reason for the delay was that the earliest appointment to meet with a Legal Aid lawyer was provided on the day after the 21 day time period, 28 May 2019. Further, the applicant and her husband were unaware that firstly, the applicant had rights in respect to a claim for unfair dismissal, and secondly, that there was any time limit for making an unfair dismissal claim. The applicant’s ignorance regarding rights for Australian employees was said to be associated with her cultural background coming from India.

[44] Ignorance of the unfair dismissal laws and the associated time limit for making a claim in respect of unfair dismissal, may not, of itself, represent a strongly persuasive factor so as to provide sound basis upon which to establish exceptional circumstances. However, the particular circumstances in this case involving the applicant’s cultural background including that English was her second language, has established, at least, an understandable reason for the delay which should be appropriately evaluated and assessed against the other factors under consideration.

Subsection 394(3)(b) - Whether the Person First Became Aware of the Dismissal After it had Taken Effect

[45] The applicant first became aware of the dismissal at the time at which she was dismissed, during the telephone conversation with Mr Arju on 6 May 2019. However, the nature of the dismissal of the applicant, and the manner in which it was conveyed, contributed to the applicant’s confusion about any capacity that she may have had to challenge the dismissal. Consequently, in the particular circumstances of this case, this factor does provide some assistance to support granting an extension of time.

Subsection 394(3)(c) - Any Action Taken by The Person to Dispute the Dismissal

[46] The applicant did not take any action to directly dispute the dismissal. This was largely caused by her belief that she did not have any capacity to challenge the dismissal. However, it is relevant to note that her genuine concern about the circumstances of her employment led to her husband contacting the Legal Aid office within four days of the dismissal. Unfortunately, there was no evidence that either the applicant or her husband made any direct contact with the employer indicating their dispute. Therefore, on balance, I consider that this factor does not assist the applicant.

Subsection 394(3)(d) - Prejudice to the Employer (Including Prejudice Caused by the Delay)

[47] The employer acknowledged that there was no prejudice that could be identified in this instance. Importantly, the employer indicated that it had no objection 3 to an extension of time being provided so as to permit the application to proceed. Consequently, this factor could be considered to provide considerable assistance to support granting an extension of time.

Subsection 394(3)(e) - The Merits of the Application

[48] This factor, described in the Act as “the merits of the application” is directed towards some elementary, preliminary assessment of the potential prospects of the matter at Hearing if the extension of time was granted.

[49] In this case however, the evidence and submissions that were provided included the substantial merits of the case. The question of the application having been made out of time was not challenged by the employer. Therefore, the out of time issue was not the subject of any separate preliminary proceedings, and the Commission has had the benefit of taking into account all evidence and submissions.

[50] The evidence of the circumstances surrounding the dismissal of the applicant established manifest unfairness. The applicant was not given any indication from the employer that the leave for which she had applied, and for which she had provided advance notice, was not approved 4. Consequently, the logical consideration of this factor provides strong support for the granting of an extension of time.

Subsection 394(3)(f) - Fairness as Between the Person and Other Persons in a Similar Position

[51] In the absence of any evidence about the treatment of other employees of the employer who may have been in a similar position to the applicant I have decided to treat this factor as being neutral.

Exceptional Circumstances

[52] Having examined each of the factors contained within subsection 394(3) of the Act it is necessary to conclude whether exceptional circumstances exist. The terminology “exceptional circumstances” was considered by Lawler VP in the case ofJohnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery  5. The consideration therein establishes a caution against adopting an overly stringent interpretationofwhat constitutes “exceptional circumstances”. It would seem that it would be sufficient to establish exceptional circumstances where one or more of the factors mentioned in paragraphs (a) to (f) of subsection 394(3) was unusual or out of the ordinary.

[53] Further assistance in providing an understanding of exceptional circumstances in the context of a legislative time limit can be obtained from the Full Bench Decision in Cheyne Leanne Nulty v Blue Star Group Pty Ltd  6 and the following paragraph from that Decision is particularly helpful:

“[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.”

[54] In this instance the exercise of the discretion to extend time has been required in respect of a delay of one day and without any objection from the respondent employer. In this context the factors that are contained in paragraphs (a) to (f) of subsection 394(3) of the Act have been given careful consideration.

[55] The reason for the delay involved the applicant’s ignorance of the unfair dismissal laws and the associated time limits for making an unfair claim. The applicant’s cultural background, including that English is her second language, together with the particular manner in which she was dismissed, created understandable confusion as to whether she had any capacity to challenge the dismissal.

[56] Further, the delay with the appointment to meet with a Legal Aid lawyer meant that it was not until 22 days after the dismissal that the applicant became aware of her rights in respect of a claim for unfair dismissal. Once she became aware of her right to make a claim for unfair dismissal and the associated time limit, she acted very quickly, and within a matter of hours she managed to electronically lodge the unfair dismissal claim.

[57] The applicant first became aware of the dismissal at the time that it had taken effect, 6 May 2019, and she took no direct action to raise a dispute with the employer about the dismissal. Therefore, this factor did not provide assistance to the applicant in respect of any finding of exceptional circumstances.

[58] There was no prejudice to the employer identified, including no prejudice caused by the delay. Importantly, the employer did not oppose the extension of time. Consequently, this factor has provided assistance to the applicant’s case in support of a finding that exceptional circumstances existed.

[59] The apparent merits of the application were manifest. Consequently, the apparent merits of the case provided significant assistance in establishing exceptional circumstances.

[60] The other factors under consideration were of neutral impact.

Conclusion on Out of Time Question

[61] All of the factors mentioned in subsection 394(3) of the Act have been taken into account. These factors have been carefully evaluated and balanced so as to provide for a comprehensive conclusion to be made having regard for all of the relevant issues. Factors involving the reason for the delay, the merits of the application, the absence of any prejudice to the employer, and absence of any opposition to an extension of time, have, in combination, operated to satisfy the Commission that there are exceptional circumstances involving the application that was filed beyond the 21 day time limit established by subsection 394(2) of the Act.

[62] Therefore, on balance, I have determined that exceptional circumstances have been established and it would be just and equitable for the Commission to exercise the discretion to extend time. Pursuant to section 394(2) of the Act, the time by which the application in this matter must be made is extended to 28 May 2019.

[63] Consequently, the Commission now turns to consideration of various other relevant aspects of the unfair dismissal claim. Particularly as the applicant was a casual employee, it has been necessary to consider whether the applicant was a person protected from unfair dismissal before any subsequent consideration of other issues would be undertaken.

Casual Employee - Protected from Unfair Dismissal

[64] Section 382 of the Act contains what might be described as the prerequisites for someone to be protected from unfair dismissal, and it is in the following terms:

“382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.”

[65] It is clear from the terms of s. 382 that in order to be protected from unfair dismissal, an employee must, inter alia, have completed at least the minimum employment period. Section 383 of the Act provides for a meaning of minimum employment period and it is in the following terms:

“383 Meaning of minimum employment period

The minimum employment period is:

(a) if the employer is not a small business employer—6 months ending at the earlier of the following times:

(i) the time when the person is given notice of the dismissal;

(ii) immediately before the dismissal; or

(b) if the employer is a small business employer—one year ending at that time.

[66] Consequently, in order to be protected from unfair dismissal, an employee must, amongst other things, have completed a minimum employment period of at least six months, or, in the case of a small business employer, a minimum employment period of at least one year.

[67] The period of employment is further clarified by s. 384 of the Act which relevantly includes mention of what constitutes a period of employment in respect of persons who are described as casual employees. Section 384 of the Act is in the following terms:

“384 Period of employment

(1) An employee’s period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee.

(2) However:

(a) a period of service as a casual employee does not count towards the employee’s period of employment unless:

(i) the employment as a casual employee was on a regular and systematic basis; and

(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis; and

(b) if:

(i) the employee is a transferring employee in relation to a transfer of business from an old employer to a new employer; and

(ii) the old employer and the new employer are not associated entities when the employee becomes employed by the new employer; and

(iii) the new employer informed the employee in writing before the new employment started that a period of service with the old employer would not be recognised;

the period of service with the old employer does not count towards the employee’s period of employment with the new employer.”

[68] Relevantly, subsection 384(2)(a) establishes that a period of service as a casual employee does not count towards the employee’s period of employment unless the employment as a casual was on a regular and systematic basis, and that the employee had a reasonable expectation of continuing employment on a regular and systematic basis. Consequently, in this instance, as the applicant was described and paid as a casual, it has become necessary to examine the particular arrangements that applied to the engagement of the applicant in order to determine whether it was employment on a regular and systematic basis, and for which the applicant had a reasonable expectation of continuation of that employment.

[69] In this case, the determination of this question has been reasonably straightforward. Evidence of the pattern of engagements worked by the applicant was provided by way of numerous payslip documents 7 which were summarised in the applicant’s evidentiary material. The payslip summary established that in the last 20 weeks of the applicant’s employment her fortnightly hours fluctuated from a minimum of 32 to a maximum of 70.25, and this generated an average of 17.75 hours per week in this period. Further evidence8 established that the applicant worked on a regular and systematic basis notwithstanding that her actual hours of engagement would, on occasions, fluctuate from week to week.

[70] Further, it was clear that the applicant had a reasonable expectation of continuing employment. The entry made by the applicant in the Medical Practice communications book on 27 February 2019, confirmed the specific dates of her absence and included; “I will resume my usual duty from 6^th May (Monday). I will be very thankful if you all kindly cover my shifts plz.” 9

[71] Consequently, although the employment of the applicant was described and paid as that of a casual employee, the employment was on a regular and systematic basis and the applicant had a reasonable expectation of continuing employment on that regular and systematic basis. Therefore, the applicant is a person protected from unfair dismissal as she had completed a period of employment with the employer of at least the minimum employment period which, in this instance of a small business employer, was one year.

[72] As the applicant had been dismissed, and she was a person protected from unfair dismissal, further consideration as to whether the dismissal of the applicant was unfair has been required.

Unfair Dismissal

[73] Section 385 of the Act stipulates that the Commission must be satisfied that four cumulative elements are met in order to establish an unfair dismissal. These elements can be identified in s. 385 which is in the following terms:

“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.”

[74] In this instance there was a dispute about whether the applicant had been dismissed. However, the employer’s assertion that the applicant had not been dismissed has been rejected. There was no suggestion or evidence to establish that the dismissal was a case of genuine redundancy. The employer did not suggest that if it was found that the applicant had been dismissed, such dismissal was consistent with the Small Business Fair Dismissal Code. However, it is necessary for the Commission to be satisfied in respect of all matters contained in s. 385 of the Act. Consequently, the provisions of subsections (b) and (c) of s. 385 of the Act have required further examination.

Small Business Fair Dismissal Code

[75] There was no dispute that the employer was a small business employer as comprehended by the meaning of small business employer stipulated by the terms of s. 23 of the Act. Therefore, the provisions of subsection 385(c) of the Act require consideration. Specifically, by way of operation of s. 388 of the Act, it is necessary to determine whether the dismissal of the applicant was or was not consistent with the Small Business Fair Dismissal Code (referred to as “the SBFD Code”).

[76] Logically a determination of any application of the SBFD Code should precede any more general contemplation of whether the dismissal could have been considered to have been harsh, unjust or unreasonable. Further, in the event that the dismissal of the applicant is found to have been consistent with the SBFD Code, any further consideration as to whether the dismissal was harsh, unjust or unreasonable would become unnecessary.

[77] The SBFD Code is in the following terms:

“Small Business Fair Dismissal Code

Summary Dismissal

It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.

Other Dismissal

In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job.

The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.

The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.

Procedural Matters

In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.

A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.”

[78] In this case, the applicant was dismissed without notice or warning when she received the verbal advice from Mr Arju that she was no longer required. Consequently, the summary dismissal of the applicant is to be tested for compliance with the Summary Dismissal provisions of the SBFD Code.

[79] The first sentence of the Summary Dismissal provisions of the SBFD Code is repeated: “It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal.” It is relevant to construe the application of the SBFD Code having regard for the authoritative guidance provided by the Full Bench Decision in the case of Ryman v Thrash Pty Ltd (Thrash). 10

[80] In this instance, the employer did not provide any suggestion that the dismissal of the applicant was connected with some serious misconduct or any belief held by the employer of any serious misconduct on the part of the applicant. It appeared from the evidence adduced in this matter that the employer simply believed that because the applicant was described and paid as a casual, her seven weeks of absence from work meant that her employment was automatically terminated.

[81] The summary dismissal of the applicant was not consistent with the Summary Dismissal provisions of the SBFD Code as there were no reasonable grounds for any belief on the part of the employer that the applicant’s conduct was sufficiently serious to justify her immediate dismissal. Further, to the extent that the dismissal of the applicant could be assessed against the Other Dismissal provisions of the SBFD Code, there was no warning given to the applicant that her absence introduced any risk of being dismissed, nor was she provided with any opportunity to respond to any warning. The dismissal of the applicant was unquestionably not consistent with the SBFD Code.

Harsh, Unjust or Unreasonable

[82] As the dismissal of the applicant was not consistent with the SBFD Code, the matter has required further consideration in respect to that element contained in s. 385(b) of the Act, being whether the dismissal of the applicant was harsh, unjust or unreasonable. Section 387 of the Act contains criteria that the Commission must take into account in any determination of whether a dismissal is harsh, unjust or unreasonable. These criteria are:

(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.

S. 387(a) - Valid Reason for the Dismissal Related to Capacity or Conduct

[83] In this instance, the dismissal of the applicant was not connected with any discernible reason other than the employer’s mistaken belief that as a casual employee the applicant’s employment was automatically terminated due to an absence from work of more than three weeks. The circumstances in this case have established that there was no sound, defensible or well-founded reason for the dismissal of the applicant. Instead, any reason that may have underpinned the decision to dismiss the applicant was capricious and ill-founded.

[84] The employer would have been inconvenienced by the extended absence of the applicant. However, the applicant provided advanced notice of her absence, and the employer raised no concern or complaint such that it would treat the applicant’s absence as unauthorised, and potentially a basis for dismissal. As a result, to the extent that the reason for dismissal of the applicant related to her absence, that reason was not sound, defensible or well-founded. There was not a valid reason for the dismissal of the applicant.

S. 387(b) - Notification of Reason for Dismissal

[85] The employer provided only verbal notification to the applicant during a telephone conversation that she was no longer required.

S. 387(c) - Opportunity to Respond to any Reason Related to Capacity or Conduct

[86] The employer did not provide any opportunity for the applicant to respond or provide any form of explanation for any of the performance or conduct issues that may have represented some undisclosed motivation for the dismissal.

S. 387(d) - Unreasonable Refusal to Allow a Support Person to Assist

[87] There was no opportunity for the applicant to have a support person present during any meeting or other process that dealt with any issues surrounding the ongoing employment of the applicant.

S. 387(e) - Warning about Unsatisfactory Performance

[88] The applicant was not provided with any identifiable warning in respect to any unsatisfactory performance that may have been relevant to the employer’s decision to dismiss.

S. 387(f) - Size of Enterprise Likely to Impact on Procedures

[89] The employer is a small business, and the Commission has made accommodation for a significant level of informality to be provided in respect to employment related matters. However, such accommodation could not extend to any condonation of the repugnant process that was adopted by the employer whereby the applicant was advised of her dismissal over the telephone, and without any prior discussion or indication that her employment was in any jeopardy.

S. 387(g) - Absence of Management Specialists or Expertise Likely to Impact on Procedures

[90] As a small business, the employer understandably did not have any dedicated human resource management specialists or other expertise. Allowance for informality and a degree of flexibility with procedures regarding employment related matters has been provided.

S. 387(h) - Other Relevant Matters

[91] There were no other relevant matters identified as requiring consideration.

Conclusion

[92] This unfair dismissal claim has firstly required determination of the assertion that the applicant was not dismissed because she was a casual employee and her absence from work for more than three weeks meant that she was “automatically terminated.” That proposition has been rejected.

[93] Secondly, the application was not made within the 21 day time period established by subsection 394(2)(a) of the Act, and the Commission has determined that as exceptional circumstances have been established, the time by which the application for unfair dismissal remedy must be made has been extended to 28 May 2019.

[94] Thirdly, the Commission has determined that as a casual employee, the employment of the applicant was on a regular and systematic basis, and at the time of her dismissal, the applicant had a reasonable expectation of continuing employment on a regular and systematic basis. Consequently, the Commission has determined that the applicant was a person protected from unfair dismissal in satisfaction of the requirements of s. 382 of the Act.

[95] Fourthly, the matter has subsequently involved consideration of the application of the Small Business Fair Dismissal Code (the SBFD Code). The applicant was dismissed during a telephone discussion and with immediate effect. Upon analysis, there was no factual basis to establish reasonable grounds upon which the employer could hold any belief that the applicant had committed conduct that was sufficiently serious to justify her immediate dismissal.

[96] In such circumstances, I have determined that the summary dismissal of the applicant was not consistent with the relevant provisions of the SBFD Code. If it were applicable to the dismissal of the applicant, the dismissal was not consistent with the Other Dismissal provisions of the SBFD Code. Therefore, the dismissal of the applicant was not consistent with the SBFD Code.

[97] Further, in this case, the reason for the dismissal of the applicant could not be properly established beyond the notion that as a casual employee her absence from work for more than three weeks meant that she was “automatically terminated.” Therefore, the reason for the dismissal of the applicant was not sound, defensible or well-founded. There was not a valid reason for the dismissal of the applicant related to her capacity or conduct.

[98] The procedure that the employer adopted whereby it advised the applicant of her dismissal during a telephone conversation, was plainly unjust, unreasonable, harsh, and undignified.

[99] In summary, the applicant was dismissed, the late filing of her unfair dismissal claim involved exceptional circumstances, she was a person protected from unfair dismissal, and the dismissal of the applicant was firstly, not consistent with the SBFD Code and secondly, without valid reason involving established misconduct or capacity inadequacy.

[100] Further, the dismissal involved a manifestly unjust and unreasonable process including the complete absence of any opportunity for the applicant to be heard before the decision to dismiss was communicated. Consequently, upon analysis of the various factors that are identified in s. 387 of the Act, an objective and balanced evaluation of all of the relevant circumstances has provided compelling basis to establish that the dismissal of the applicant was harsh, unjust and unreasonable. Therefore, the applicant’s claim for unfair dismissal remedy has been established.

Remedy

[101] The applicant has not sought reinstatement as a remedy for her unfair dismissal. In the circumstances, particularly as the employment of the applicant was severely damaged by the very regrettable circumstances surrounding the dismissal implemented during a telephone conversation, reinstatement would not be an appropriate remedy.

[102] In the circumstances, I am satisfied that reinstatement of the applicant would be inappropriate, and that payment of compensation would represent an appropriate remedy for the applicant's unfair dismissal. I now turn to the factors which involve the quantification of any amount of compensation.

[103] Section 392 of the Act prescribes certain matters that deal with compensation as a remedy for unfair dismissal. I have approached the question of compensation having regard for the guidance that can be identified from the Full Bench Decisions of, inter alia; Sprigg v Paul’s Licensed Festival Supermarket 11 (Sprigg); Smith and Ors v Moore Paragon Australia Ltd 12 and more recently, the cases of; McCulloch v Calvary Health Care Adelaide13; Balaclava Pastoral Co Pty Ltd v Nurcombe;14 and Hanson Construction Materials v Pericich15(Pericich).

[104] Firstly, I confirm that an Order for payment of compensation to the applicant will be made against the employer in lieu of reinstatement of the applicant.

[105] Secondly, in determining the amount of compensation that I Order, I have taken into account all of the circumstances of the matter including the factors set out in paragraphs (a) to (g) of subsection 392(2) of the Act.

[106] There was no evidence provided which established that an Order of compensation may impact on the viability of the employer’s enterprise.

[107] The applicant had been employed for a period of about two years and two months. The applicant would have been likely to have received remuneration of approximately $523.00 per week if she had not been dismissed.

[108] There was no evidence to provide any basis to conclude that the employment of the applicant may not have continued for a significant period of time. Theoretically, the applicant would have been likely to have continued in employment for a period roughly equivalent to the length of service that she had achieved at the time of her dismissal, circa two years.

[109] For the purposes of calculation of remuneration that the applicant would have received or would have been likely to receive if she had not been dismissed, I have notionally considered that the employment of the applicant would have continued for at least a further 26 weeks. Therefore, the total remuneration that would have been received in the notional period of 26 weeks following dismissal amounted to a figure of $13,598.00. However, the applicant specified that she claimed compensation in respect of her unfair dismissal of an amount approximating with 16 weeks’ remuneration.

[110] The total amount of remuneration received in alternative employment, and that which may be reasonably likely to be earned between dismissal and the making of the Order for compensation, has been calculated to be $0.00. The applicant has provided evidence of her attempts to secure alternative employment and mitigate her loss.

[111] Thirdly, in this instance there was no established misconduct of the applicant, and consequently I have decided to make no reduction to the amount of compensation to be provided to the applicant on account of any established misconduct.

[112] Fourthly, I confirm that any amount Ordered does not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt caused to the applicant by the manner of the dismissal.

[113] Fifthly, the amount Ordered does not exceed the compensation cap as prescribed by s. 392(5) of the Act.

[114] Consequently, for the reasons outlined above, taking into account all of the circumstances of the case, and having cognisance so as not to apply the approach taken in the Decision in Sprigg in a rigid, determinative manner, as was cautioned in the Decision in Pericich, I have decided that the amount of compensation to be provided to the applicant should be calculated by subtracting 10 weeks remuneration from $13,598.00 ($13,598.00 minus $5230.00); the resultant figure being: $8,368.00 gross.

[115] Accordingly, separate Orders [PR714034] providing for unfair dismissal remedy in these terms will be issued.

COMMISSIONER

Appearances:

Ms A Das appeared unrepresented.

Dr Z Quazi, Director appeared for the employer.

Hearing details:

2019.

Sydney:

October, 21.

Printed by authority of the Commonwealth Government Printer

<PR714033>

 1   Exhibit 2 – “Attach 7”.

 2   Form F3 - Employer response to unfair dismissal application @ paragraph 3.2.

 3   See in particular, transcript @ PN109.

 4   See in particular, transcript @ PN397 to PN 400.

 5   Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery [2010] FWA 1394

 6   Cheyne Leanne Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975.

 7   Exhibit 2 – “Attach 17”.

 8   Exhibit 2 – “Attach 9”.

 9   Exhibit 2 – “Attach 8”.

 10   Jeremy Ryman v Thrash Pty Ltd t/a Wisharts Automotive Services [2015] FWCFB 5264.

 11 Sprigg v Paul’s Licensed Festival Supermarket, (Munro J, Duncan DP and Jones C), (1998) 88IR 21.

 12   Smith and Ors v Moore Paragon Australia Ltd, (Lawler VP, Kaufman SDP and Mansfield C), (2004) PR942856.

 13   John McCulloch v Calvary Health Care Adelaide, (Ross P, Hatcher VP and Gostencnik DP), [2015] FWCFB 873.

 14   Balaclava Pastoral Co Pty Ltd t/a Australian Hotel Cowra v Darren Nurcombe, (Hatcher VP, Gostencnik DP and Cribb C) [2017] FWCFB 429.

 15   Hanson Construction Materials Pty Ltd v Darren Pericich, (Ross P, Masson DP and Lee C), [2018] FWCFB 5960.