Bernadette McConnell v Craig Mackay Pty Ltd T/A Beulah Urban Land & Park Maintenance

[2013] FWC 6525

[2013] FWC 6525

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Bernadette McConnell
v
Craig Mackay Pty Ltd T/A Beulah Urban Land & Park Maintenance
(U2013/645)

COMMISSIONER LEWIN MELBOURNE, 11 SEPTEMBER 2013

Application for relief from unfair dismissal - dismissal at the initiative of the employer - no valid reason - no notice - no opportunity to respond - no warnings - dismissal harsh, unjust, and unreasonable.

[1] In this matter, Ms Bernadette McConnell has made an application under s. 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. Ms McConnell was an employee of Craig Mackay Pty Ltd T/A Beulah Urban Land & Park Maintenance (Craig Mackay). Craig Mackay provided land and park maintenance services to local government authorities. Ms McConnell was a book keeper/accountant for Craig Mackay.

[2] On 21 March 2013, Craig Mackay submitted a ‘Form 3 Employers Response to Application for Unfair Dismissal Remedy’ that contained annexures and submissions in relation to the termination of Ms McConnell’s employment that were signed “Craig Mackay - Director”.

[3] Craig Mackay objected to the Commission dealing with the application on the ground that the termination of the employment relationship between Ms McConnell and Craig Mackay was not at the initiative of Craig Mackay.

[4] In order for the application to be dealt with by the Commission Ms McConnell must be a person who has been “dismissed”. 1

[5] Directions were issued with the notice of listing on 1 August 2013. Those Directions are as follows:

Notice of Listing

Section:	s.394 - Application for unfair dismissal remedy
Title of Matter:	Mcconnell, Bernadette v Craig Mackay Pty Ltd T/A Beulah Urban Land & Park Maintenance
Matter Number(s):	U2013/645

Conference/Hearing Details:

The above matter is listed for Jurisdiction (No Dismissal) and Arbitration Conference/Hearing, in the Arbitration Roster at:

10:00 am
Monday, 2 September 2013
Fair Work Commission
11 Exhibition Street
Melbourne

10:00 am
Tuesday, 3 September 2013
Fair Work Commission
11 Exhibition Street
Melbourne

AMENDED DIRECTIONS

1. The respondent (Craig Mackay Pty Ltd T/A Beulah Urban Land & Park Maintenance) is directed to file with Fair Work Commission, marked attention UNFAIR DISMISSAL ROSTERS, and serve on the applicant, an outline of submissions and any witness statements and other documentary material the respondent intends to rely on in support of the jurisdictional objections in this matter, by no later than noon on Wednesday, 7 August 2013.

2. The respondent (Craig Mackay Pty Ltd T/A Beulah Urban Land & Park Maintenance) is directed to file with Fair Work Commission, marked attention UNFAIR DISMISSAL ROSTERS, and serve on the applicant, an outline of submissions and any witness statements and other documentary material the respondent intends to rely on in opposition to the application in this matter, by no later than noon on Monday, 19 August 2013.

3. The applicant (Ms Bernadette Mcconnell) is directed to file with Fair Work Commission, marked attention UNFAIR DISMISSAL ROSTERS, and serve on the respondent, an outline of submissions and any witness statements and other documentary material the applicant intends to rely on in opposition to the jurisdictional objections in this matter, by no later than noon on Wednesday, 28 August 2013.

Please refer to attached information for assistance with preparing for conference or hearing.

Note: The applicant and respondent must comply with these directions.

The applicant and the respondent should attempt to resolve this matter prior to the time for compliance with these directions to minimise their costs in this matter.

Any requests for adjournment of this listing must be made in writing and be based on substantial grounds.

Inquiries and contact details:

All inquiries relating to this notice are to be directed to the Unfair Dismissals Team on 1800 269 491, Email [email protected] or Facsimile [phone].

1 August 2013 02:29 pm

[6] On 7 August the Respondent filed with the Commission and on the Applicant submissions and a second copy of the Form 3. On 23 August 2013, the Respondent also filed a witness statement. The submission filed comprised of 33 paragraphs which include reference to issues of unsuitability of Ms McConnell for her role in the employment of Craig Mackay. The witness statement, of Mr Craig Mackay, included reference to temporary absences from work due to illness. The tenor of the statement in this regard was that such absences were excessive. Additional references to Ms McConnell’s “work ethic” were made in Mr Mackay’s witness statement among many other issues concerning Ms McConnell’s alleged conduct and work performance, which were clearly designed to persuade the Commission that, should the application be dealt with, there were valid reasons for the termination of Ms McConnell’s employment.

[7] On 21 August an amendment to the Notice of Listing was dispatched informing parties that the matter would continue to be listed for Jurisdiction (No Dismissal) and Arbitration Conference/Hearing, in the Arbitration Roster at 10am, Monday 2 September 2013 but that the hearing of the matter would not extend for a second day.

[8] On 28 August 2013 and 30 August 2013, submissions and witness statements were filed by the Applicant.

[9] Craig Mackay did not appear at the hearing on Monday, 2 August 2013. No notification of Craig Mackay’s non appearance was received prior to the hearing. Nor did Craig Mackay make an application for an adjournment of the hearing. The Commission was satisfied the Craig Mackay was notified of the hearing via fax on 21 August 2013. The Commission attempted to contact Craig Mackay concerning appearance at the hearing without success. The hearing proceeded.

[10] Ms McConnell gave evidence concerning the circumstances in which her employment relationship with Craig Mackay came to an end. Ms McConnell’s evidence was that she received an email informing her that Craig Mackay had arranged for the work that she was performing to be done by a firm of accountants for $500 per week and that she should take two weeks off work because she had been unwell.

[11] Ms McConnell gave evidence that her partner is employed by Craig Mackay at the depot at which Ms McConnell’s office was situated. Ms McConnell gave evidence that her partner had informed her that Mr Mackay had boxed and removed all of the files and materials in her office, from which she was absent during the two week period referred to in the email of 4 February 2013.

[12] Additionally, Ms McConnell was Company Secretary and Shareholder of an entity associated with her employer. Mr Mackay took steps to unilaterally remove Ms McConnell from this position without any notice to her, shortly after Ms McConnell received the email of 4 February 2013. This was done, purportedly, without compliance with appropriate requirements under the Corporations Act and without a meeting of shareholders.

[13] Ms McConnell arrived at the depot at which her office was situated after the two week period referred to in the email of 4 February 2013. On arrival she found that the locks on the gates to the depot had been changed and she could not gain entry with the keys she had been provided and previously used during her employment.

[14] Ms McConnell attempted to contact Mr Mackay who did not respond to any attempted communication. Ms McConnell gave evidence that this behaviour of Mr Mackay was consistent with situations she had witnessed when Mr Mackay had terminated the employment of other persons. Ms McConnell’s evidence was that Mr Mackay would avoid any attempt at contact by dismissed employees in such circumstances.

[15] Independently of my consideration of the evidence given by Ms McConnell, I observe that in complying with the Directions, Craig Mackay submitted a copy of an Employment Termination Payment document prepared by Mr Pongas of the accounting firm Hudson & Young. The payee details on that document are for Ms McConnell. The document shows that Craig Mackay made a payment to Ms McConnell on 31 January 2013 for what is described, in hand writing on the document, as annual leave, loading, and two weeks’ notice.

[16] Ms McConnell gave viva voce evidence that she received no warnings or notification that her employment was under threat for any reason prior to receiving the email of 4 February 2013. Ms McConnell’s evidence was that no complaint about the performance of her work had been made during the employment relationship and no warning had been issued to her formally or informally about the performance of her work by Craig Mackay.

[17] I accept Ms McConnell’s evidence both in the witness statement 2 she filed and attested to and given viva voce accordingly.

[18] Having regard to this uncontested evidence on 2 September 2013 I decided that the termination of the employment relationship between Ms McConnell and Craig Mackay was at the initiative of Craig Mackay.

[19] In light of the uncontested evidence before me I considered and took into account the following matters for the purpose of determining the application before me by arbitration, as required by s.387 of the Act, the terms of which are set out below:

387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(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.

Valid Reason

[20] On what is before me, there was no valid reason for the termination of Ms McConnell’s employment, with the possible exception of the employment of a contract service provider and her temporary illness was not given prior to the termination of her employment

Notice

[21] The evidence satisfies me that Ms McConnell received no notice or any reason for the termination of her employment.

Opportunity to respond

[22] It is self evident from what is referred to above that Ms McConnell was not given an opportunity to respond to whatever the reason was for which her employment was terminated. To the extent that it was alleged in the materials filed by Craig Mackay that Ms McConnell lacked the capacity to perform the duties of her position, there is no evidence of Craig Mackay providing Ms McConnell with an opportunity to respond to this as a reason which would give rise to the termination of her employment.

Support person

[23] For the reasons set out above, circumstances did not arise in which discussions were held relating to the termination of Ms McConnell’s employment, consequently the opportunity for Ms McConnell to have a support person at such discussions did not arise. Hence, there was no relevant refusal thereof.

Unsatisfactory Performance - Warning?

[24] Craig Mackay alleges unsatisfactory performance formed a reason for which the employment came to an end. Although, this is only by implication from the materials filed by Craig Mackay in light of the submission that Ms McConnell bought the employment to an end at her own initiative. Ms McConnell’s evidence satisfies me that she was not at any time, prior to the email of 4 February 2013 and the events which followed, as referred to above, warned that her work performance was unsatisfactory.

Size of employer

[25] I consider, as best I am able, that the size of the employer in this matter likely affected the inappropriate and unfair procedures adopted in effecting the termination of Ms McConnell’s employment.

Human Resources Management

[26] It seems there were no dedicated human resource specialists or expertise in Craig Mackay and consequently I consider this had a high degree of impact on the procedures which were followed to effect the termination of Ms McConnell’s employment.

Other relevant matters

[27] Ms McConnell gave evidence that she had been suffering high blood pressure around the time that the employment was terminated by Craig Mackay. A reading of the email indicates that this formed a consideration when Craig Mackay terminated Ms McConnell’s employment. The reference to taking time off work due to temporary illness in the email of 4 February 2013 and in the witness statement filed by Mr Mackay will be taken into account for the purpose of determining whether Ms McConnell’s employment was harsh, unjust or unreasonable.

Harsh, Unjust or Unreasonable

[28] Whilst not necessarily but almost invariably it will be the case that the termination of an employee’s employment will be harsh, unjust or unreasonable where the Commission is unable to be satisfied that there is a valid reason for the termination.

[29] This will only be more so when the termination is devoid of any procedural fairness, as is the case in this matter.

[30] Additionally, to terminate Ms McConnell’s employment by reason, perhaps amongst others unknown, for temporary incapacity through illness, on the evidence before me, is harsh, unjust and unreasonable.

[31] The size of the employer’s business and the absence of human resource specialists or expertise is a relevant consideration in respect of procedural fairness considerations. However, stone walling attempts at communication by Mr Mackay about the termination of Ms McConnell’s employment cannot be justified on such grounds.

[32] Regarding all of the above and taking these considerations into account it cannot be said that there was a “fair go all round” in the termination of Ms McConnell’s employment.

Decision

[33] For all of these reasons, I was satisfied that the termination of Ms McConnell’s employment was harsh, unjust and unreasonable and decided therefore that Ms McConnell was unfairly dismissed.

[34] I adjourned consideration of the question of remedy. Ms McConnell and Craig Mackay have been Directed to file relevant material and submissions accordingly. The matter will be listed for hearing on the question of remedy.

Appearances:

Ms McConnell on behalf of the Applicant

Hearing details:

Before Commissioner Lewin

2013

Melbourne:

2 September 2013.

 1 S.539(1) Fair Work Act 2009.

 2   PN62

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