Attracta Gallagher v Kidz Biz Pty Ltd T/A Kidz Biz Pre-School & Long Day Care
[2010] FWA 5577
•5 AUGUST 2010
[2010] FWA 5577 |
|
DECISION |
Fair Work Act 2009
s 394 - Application for unfair dismissal remedy
Attracta Gallagher
v
Kidz Biz Pty Ltd T/A Kidz Biz Pre-School & Long Day Care
(U2010/6200)
DEPUTY PRESIDENT SAMS | SYDNEY, 5 AUGUST 2010 |
Application for unfair dismissal remedy.
BACKGROUND
[1] On 18 May 2010, Fair Work Australia (FWA), as presently constituted, extended the time, pursuant to s 394(3) of the Fair Work Act 2009 (‘the Act’) for the applicant in this matter, Ms Attracta Gallagher, to file an application for a remedy from unfair dismissal: See Attracta Gallagher v Kidz Biz Pty Ltd T/A Kitz Biz Pre-School & Long Day Care [2010] FWA 3778. The applicant had claimed she was unfairly dismissed on 18 January 2010, after working as a child care worker at the Kidz Biz Pre-School & Long Day Care (‘the respondent’) for seven and a half years.
[2] The earlier jurisdictional proceedings were heard by FWA, ex parte, after the respondent had failed to, either comply with my directions to file and serve an outline of submissions and attend or be represented at the hearing on 7 May 2010 - notwithstanding representatives of the respondent were well aware of the listing. It seems readily apparent that the respondent’s dismissive attitude to the applicant’s claim and its refusal to participate, in any way, in these proceedings before FWA, remains its only stance in response to this application. It again failed to comply with FWA’s directions of 18 May 2010 and failed to attend or be represented at the substantive hearing of the matter on 30 June 2010. At the conclusion of my decision of 18 May 2010, I had warned the respondent as follows:
[19] The respondent is reminded that a failure to comply with these directions and/or a failure to attend the proceedings on Wednesday, 30 June 2010, may result in the Tribunal deciding to determine the application, ex parte. This could result in adverse orders being made against the respondent.
[3] The patience of the Tribunal has been well and truly exhausted by the respondent’s unbelievable and reprehensible conduct in respect to this matter and the consequences of it not putting any defence against the applicant’s claim will be obvious and unsurprising.
THE APPLICANT’S CASE
Merits of the applicant’s claim
[4] In my earlier interlocutory decision I said this:
[7] ...I have no reason to doubt the applicant’s version of events from 17 January 2010 to 3 February 2010, as she described in her statement and during the proceedings. There appears to be no letter advising of her dismissal and no one had actually told her she had been dismissed. It follows that such a dismissal may constitute a constructive dismissal, about which more, will no doubt, be said in future proceedings.
Reasons for the Delay
[8]The applicant and two other permanent staff had a meeting with Ms Dianna Jones on 17 January 2010, the day before the pre-school was due to re-open after the Christmas/New Year break. Ms Jones told the applicant that she was not required until she knew the number of children who would be enrolled for the year. The applicant accepted this, notwithstanding she had been rostered to work on 18 to 22 January, before the Christmas break. The applicant said she waited and waited to be called and when she learnt that casuals had been employed at the pre-school, she filed a complaint with the Fair Work Ombudsman (FWO) on 3 February 2010. The next day she was advised that the FWO did not investigate unlawful termination complaints and she was advised to file her complaint with FWA. After requesting a fee waiver and eventually paying the fee, the present application was filed on 17 February 2010. The applicant said she had received no notice of her dismissal, there was no valid reason for her dismissal and the employer had not responded to any approaches to conciliate the matter.
Submissions of the applicant
[5] The applicant, in representing herself, informed the Tribunal that she believed the pre-school has now been sold, but is still operating. She also advised that two other former employees, who were members of the Union, and who had also lost their jobs, had filed unfair dismissal applications, but were not yet finalised.
[6] The applicant also informed the Tribunal that her superannuation fund had not received superannuation contributions for nine months before her dismissal, including her own contributions which had been deducted from her wages by the respondent.
[7] The applicant made the following further submissions:
I received the email dated 18th of May 2010. In preparation for the further hearing on the 30th of June 2010 I’m filing and serving evidence on which I, the applicant, relies. I received a letter from AMP Super Leader dated 2nd of December 2009, stating that contributions from Kidz Biz Pre-school for the previous quarter has not been received by the Super Leader.
This was brought to the attention of the respondent, Maria Damaschino, and I was told the amount outstanding would be paid when she could afford it. I accepted that not knowing I was about to be unemployed a short time after, being January the 18th, 2010. I did mention again about getting my super paid after I was contacted by the respondent, Maria Damaschino, when she received copies of my complaint which I lodged with the Fair Work Ombudsman on 3rd of February 2010. I was informed again it would be paid when she could afford it.
After hearing this again I lodged my complaint with the Taxation Office on the 24th of February 2010, and now that that has been established, letter dated 28th of April, 2010. I posted a letter to the respondent, Maria Damaschino, and to Dianna Jones, who is now the director of Kids Biz Pre-school regarding pro-rata long service. This letter was posted on the 8th of the 3rd 2010. Industrial Relations advised me to contact both parties in writing. When I received no reply to the letters of contact I lodged my complaint with Industrial Relations and received a letter back from them dated 7th of April 2010 regarding this.
A lady phoned me on the 5th of May 2010 from Industrial Relations saying she’d tried to contact Dianna Jones many times through the pre-school and her mobile, left her several messages, but always unavailable. This lady’s name is Ms Dawson, and her phone number is 4715 5520. After I filed my complaint for unfair dismissal a date and time was arranged for conciliation by phone. Dianna Jones was not able to be contacted. The respondent, Maria Damaschino was able to be contacted and said it wasn’t her who dismissed me.
Now, we have come to this hearing on 30th of June 2010 after I was granted an extension of time for unfair dismissal. I have not received a letter of dismissal from either the respondent, Maria Damaschino, or Dianna Jones who is now the director of Kidz Biz after I’d been employed there for 7 and a half years. But casual staff can be employed to help run the business. These casual staff are working there many hours, many days, and have been casual employees of Kids Biz last year. This is very unfair. I do feel the respondent should have paid out my entitlements and also given me notice of what was going to happen to the pre-school. If not, I should still have my job and the hours I was rostered on for the 18th January 2010 when the pre-school re-opened after the Christmas break.
CONSIDERATION
[8] Having considered the applicant’s submissions, I would conclude that the applicant was a person protected from unfair dismissal (s 382 of the Act) and there can be no doubt that the applicant was constructively dismissed on 18 January 2010, pursuant to s 386 of the Act. In Linda Makin McGovern v The Cubbyhouse @ Kellyville Pty Ltd[2010] FWA 2411, at par [66] I discussed the principles of constructive dismissal as follows:
[66]Most of the relevant authorities deal with the circumstances of an employee’s ‘forced resignation’, but the principles found therein encompass a wider application, including to the facts and circumstances of this case. The principle which the applicant must establish in this case, is that there was some action/s on the part of the employer, which was either intended to bring the employment to an end, or had the probable result of bringing the employment relationship to an end. The much quoted authority for this principle is that found in Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR 200. In P O’Meara and Stanley Works Pty Ltd (U2006/2874), 11 August 2006, PR973462, a Full Bench of the Australian Industrial Relations Commission, after considering the decision in Mohazab v Dick Smith said:
“In our view the full statement of reasons in Mohazab which we have set out together with the further explanation by Moore J in Rheinberger and the decisions of Full Benches of this Commission in Pawel and ABB Engineering require that there to be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. It is not simply a question of whether “the act of the employer [resulted] directly or consequentially in the termination of the employment.” Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution as they may not give full weight to the decision in Mohazab. In determining whether a termination was at the initiative of the employer an objective analysis of the employer’s conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign.”
[9] In determining whether the applicant’s dismissal was ‘harsh, unreasonable or unjust’, FWA is required to take account of the following matters in s 387 of the Act:
(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 FWA considers relevant.
[10] Not only was there no valid reason for the applicant’s dismissal (s 387(a)), there was no reason given at all, then, or subsequently, for what I consider to be the appalling treatment of her by the respondent. It was conduct which deserves the strongest condemnation and I have no hesitation in doing so. Given that the respondent has also failed to remit the applicant’s own contributions to her superannuation fund, effectively pocketing money which does not belong to it, the respondent’s conduct may well constitute a criminal act.
[11] The applicant was never notified of the reason for her dismissal (s 387(b)) and obviously was given no opportunity to respond to any reason for her dismissal (s 387(c)). Subsections (d) and (e) of s 387 do not apply in this case. I have no evidence as to the matters contained in subsections (f) and (g) of s 387 and, consequently these matters do not fall for my consideration in this case.
[12] As to any other matters FWA considers relevant (s 387(h)), I have also had regard for the respondent’s refusal to respond to this application; refusal to participate in a conciliation of the matter; refusal to comply with my directions and refusal to participate in these proceedings. There was no evidence that the applicant was anything other than an exemplary employee for over seven years. I repeat, her recent treatment by the respondent was nothing short of appalling. Even if it could be said that the circumstances surrounding her dismissal might have the characteristics of a redundancy, it was not a genuine redundancy within the meaning of s 389 of the Act.
[13] Pursuant to s 387 of the Act, I find that the applicant’s dismissal was ‘harsh, unreasonable and unjust’, both procedurally and substantively.
[14] In determining what remedy should be ordered by FWA in this matter, pursuant to s 390 of the Act, I determine that reinstatement or re-employment would be inappropriate and that an order for payment of compensation is appropriate in all the circumstances of this case. I consider that the applicant is entitled to the maximum amount of compensation available under s 392 of the Act arising from her unfair dismissal. I have taken into account all of the matters referred to in s 392(2) of the Act. There are no grounds to discount the maximum amount of 26 weeks’ remuneration. This amount will be based on the applicant’s earnings in the 26 weeks prior to dismissal calculated on a salary of $626.72 per week. I order accordingly.
DEPUTY PRESIDENT
Appearances:
Ms Attracta Gallagher, unrepresented
No appearance for the respondent
Hearing details:
2010
SYDNEY
30 June
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