Bianca Stephenson v Ipress Services Pty Ltd

[2014] FWC 3967

[2014] FWC 3967

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Bianca Stephenson
v
Ipress Services Pty Ltd
(U2014/4065)

COMMISSIONER BISSETT MELBOURNE, 17 JUNE 2014

Application for relief from unfair dismissal - question of abandonment.

[1] Ms Bianca Stephenson (the Applicant) has made an application for relief from unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (the Act). She was employed by Ipress Services Pty Ltd (the Respondent). Ms Stephenson commenced employment with the Respondent in May 2013. She was advised that her employment was terminated for abandoning her employment in a meeting on 16 January 2104. She was given a letter to this effect that day although it was dated 10 January 2014.

Evidence and submissions

[2] The Applicant’s evidence is that she had leave approved for the period 24 December 2013 - 3 January 2014. She intended to travel to Newcastle to visit her family.

[3] On 18 December 2013 the Applicant received a message that her uncle had died suddenly. That evening she received a message from her brother that he had booked her flight to Newcastle on Saturday 21 December 2013. She therefore asked for Monday, 23 December 2013 off on leave as well. She texted this request to her manager, Ms Christina Karopoulos, and spoke to her about it the next day. She says that Ms Karopoulos said to her ‘Firstly don’t text me that shit. Secondly, Monday is a normal working day and our staff Christmas party and you are expected to be there.’ The extra day of leave was subsequently approved by Ms Karopoulos.

[4] Whilst in Newcastle the Applicant attended her uncle’s funeral. Due to some difficulties coping with her uncle’s death she says she was unable to return to work for a further week beyond her approved leave. She says that because of the way her last conversation went with Ms Karopoulos had gone she asked her mother to phone Ms Karopoulos as she felt intimidated. She says her mother did so, explained the situation to Ms Karopoulos and said that said that Ms Stephenson would be back at work on 13 January 2014.

[5] The Applicant says that a series of text messages between her and Ms Karopoulos 1 are not illustrative of the totality of her relationship with Ms Karopoulos and do not indicate the intimidatory aspects of the relationship.

[6] She says that she returned to Melbourne around 4 January 2014 accompanied by her mother. On 9 January 2014 she says she left her mobile phone at home and, on returning home saw she had a missed call from Mr Peter Thomas, the owner of the Respondent’s business. He had left a message in which she says he said ‘Hi Bianca, this is Peter. Just wondering when you will be back at work. Give me a call.’

[7] Her evidence is that she called Mr Thomas but he did not answer his phone. She then sent a text to say she was going to bed and would call him the next day.

[8] The Applicant says that Mr Thomas called the next day. She says he asked what was going on and she said she would be back at work on Monday (13 January 2014). She says she told Mr Thomas everything that had happened. Mr Thomas said that Ms Karopoulos had tried to contact her on the Monday and Tuesday of that week. She said that she had no missed calls. The call ended with Mr Thomas asking her to come in on the following Monday for a chat.

[9] On Sunday 12 January 2014 the Applicant says she received a voice message from Mr Thomas advising her that the meeting would need to be rescheduled to 16 January 2014.

[10] The Applicant says she did not go into work on 13 January 2014 as she understood from her conversation with Mr Thomas that she was not to come in until the meeting scheduled with him.

[11] The Applicant went into work on 16 January 2014 where she met with Mr Thomas and Ms Karopoulos. Ms Karopoulos asked another employee to come in as the Applicant’s support person. Ms Karopoulos told the Applicant that she had let the team down by not returning to work on 6 January 2014. She was given a letter terminating her employment. That letter was dated 10 January 2014.

[12] The Applicant says she was surprised at the termination of her employment as Mr Thomas had not mentioned it in either of the conversations she had with him. She agrees that she got on well with both Mr Thomas and Mr Nesci of the Respondent but says that she believes it would not be appropriate to go behind Ms Karopoulos’ back and ring them about her need for more time off. She thought doing that would worsen what she said was an already strained relationship with Ms Karopoulos.

[13] Ms Leach is the Applicant’s mother. She gives evidence that she rang Ms Karopoulos on 3 January 2014 on behalf of her daughter. She made the call because the Applicant had indicated she felt intimidated by Ms Karopoulos.

[14] Ms Leach said that when she rang Ms Karopoulos she told her she was the Applicant’s mother, that, as Ms Karopoulos knew, the Applicant’s uncle had recently died and that the Applicant was not coping with the death and needed some more time off work. Ms Leach says she told Ms Karopoulos that the Applicant would return to work on 13 January 2014. Ms Leach says Ms Karopoulos said this was okay but just to get the Applicant to ring Ms Karopoulos when she is ready to return. Ms Leach says she confirmed the Applicant would return to work on 13 January 2014 and she would get the Applicant to call prior to that date.

[15] Ms Leach says she returned to Melbourne with the Applicant.

[16] Mr Thomas is the owner of the business. He says it is a small business with 19 employees. He says that, as the owner of a small business, he keeps across and knows everything that goes on in the business.

[17] He says that on 3 January 2014 Ms Karopoulos told him the Applicant’s mother had called. He says that Ms Karopoulos told him that she did not know when the Applicant was returning to work and that she had asked the Applicant’s mother to ask the Applicant to call her urgently. He says he asked Ms Karopoulos to call Fair Work Australia (sic) to see what could be done as the Applicant was ‘always taking it upon herself to take time off without prior approval.’ He says that Ms Karopoulos did so and advised him that Fair Work Australia (sic) said to wait 3 days until Monday and if the Applicant did not call to try and call her on Monday or Tuesday.

[18] Mr Thomas says that on 8 January 2014 (the Wednesday) Ms Karopoulos told him she had tried but could not reach the Applicant.

[19] Mr Thomas says that when Ms Karopoulos attempted to call the Applicant on 6 and 7 January 2014 she did not leave any voice messages. The number she was calling from would have come up as private number on Applicant’s phone. He accepts that Applicant may not know the employer had tried to contact her.

[20] He says that he rang the Applicant on 8 January 2014 to find out when she coming back to work. He received a missed call from the Applicant that night and later a text in which she said she was going to bed and would call him the next day.

[21] He says he spoke to the Applicant on 9 January 2014 and mentioned that he was disappointed that she had let the team down. He did not tell her she was no longer employed by the company.

[22] Mr Thomas agrees that the Applicant did respond to his phone call of 8 January 2014 even though it was late in the evening. He says that at this time he would have his phone turned off.

[23] Mr Thomas says that there was no reason why the Applicant could not come into work on 13 January 2014 although he agrees he did not ask her if or when she was returning to work.

[24] Mr Thomas says that the Applicant has not been subject to any counselling or warnings about her work performance or conduct.

[25] Ms Karopoulos she had submitted a written statement to the Commission. She was unavailable to attest to her statement or to give evidence.

Submissions

Applicant

[26] The Applicant says that she was unfairly dismissed. She says that she sought and gained approval for the additional time off beyond 6 January 2014.

[27] She says that the evidence is clear that her mother told Ms Karopoulos that the Applicant would return to work on 13 January 2014. Further, she says that Ms Karopoulos did not leave any messages for her or text her to say she needed to contact the Respondent urgently as she was on unapproved leave. The evidence shows that, when she did receive a call from the Respondent, she responded immediately. The Applicant says that had Mr Thomas not called her on 12 January 2014 and told her the planned meeting had been rescheduled until 16 January 2014 she would have attended for work on 13 January 2014.

[28] She says it is clear that when the Respondent did contact her she responded to that call as soon as she became aware of it.

[29] While she did not meet with the Respondent until 16 January 2014 the Applicant says the termination letter shows the Respondent had decided to terminate her employment on 10 January 2014 when it wrote the termination letter.

Respondent

[30] The Respondent says that the Applicant abandoned her employment. It says that she failed to return to work on 6 January 2014 and did not advise when she would return to work. Attempts to contact the Applicant were futile.

[31] The Respondent submits that the evidence demonstrates that the Applicant and Ms Karopoulos regularly communicated by text message and that there is no reason the Applicant did not advise Ms Karopoulos at least by text that she was unable to return to work until 13 January 2013.

Was the Applicant dismissed?

[32] I am satisfied that the Applicant is protected from unfair dismissal (s.382 of the Act).

[33] Section 385 of the Act states:

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.

[34] Section 386 of the Act states:

386 Meaning of dismissed

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

[35] Prior to determining if the Applicant was unfairly dismissed it is necessary to determine if she was, in fact, dismissed by the Respondent. If she was not dismissed she cannot have been unfairly dismissed by virtue of s.385(a).

[36] The Respondent claims that the Applicant abandoned her employment in that she failed to return to work on 6 January 2014 and she failed to respond to attempts by Ms Karopoulos to contact her on 6 and 7 January 2014.

[37] The Applicant says that she was dismissed by the Respondent. When she attended the meeting on 16 January 2014 she was dismissed from her employment and a letter of termination dated 10 January 2014 was handed to her.

[38] In Mohazab v Dick Smith Electronics Pty Ltd it was held that ‘an important feature [of termination at the initiative of the employer] is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship.’ 2

[39] In Pawel v Advanced Precast Pty Ltd 3a Full Bench of the AIRC said:

[13] It is plain that the Full Court in Mohazab considered that an important feature in the question of whether termination is at the initiative of the employer is whether the act of an employer results directly or consequentially in the termination of the employment and that the employment relationship is not voluntarily left by the employee. However, it is to be noted that the Full Court described it as an important feature. It plainly cannot be the only feature. An example will serve to illustrate this point. Suppose an employee wants a pay rise and makes such a request of his or her employer. If the employer declines and the employee, feeling dissatisfied resigns, can the resignation be said to be a termination at the initiative of the employer? We do not think it can and yet it can be said that the act of the employer i.e. refusing the pay rise, has at least consequentially resulted in the termination of the employment. This situation may be contrasted with the position where an employee is told to resign or he or she will be terminated. We think that all of the circumstances and not only the act of the employer must be examined. These in our view, will include the circumstances giving rise to the termination, the seriousness of the issues involved and the respective conduct of the employer and the employee.

[40] A determination of the question of whether the termination was at the initiative of the employer requires a consideration of all of the circumstances including the conduct of both the Applicant and the Respondent.

[41] On the basis of the evidence before me I am satisfied that the Respondent was advised that the Applicant required more time off and would be returning to work on 13 January 2014. There is no evidence to suggest that the Applicant’s mother was told by Ms Karopoulos that if she did not attend work on 6 January 2014 her employment was in jeopardy. Even Ms Karopoulos’ unsworn statement does not indicate she said this to Ms Leach.

[42] It is of concern that, when it is said she attempted to call the Applicant, Ms Karopoulos did not think it important enough to leave a message for the Applicant to urgently call her.

[43] There is substantial evidence 4 that the Applicant and Ms Karopoulos communicated regularly by text message. This occurred if the Applicant was unwell and unable to attend work or was running late or if Ms Karopoulos wanted some assistance of the Applicant. No explanation was given as to why Ms Karopoulos did not text the Applicant and ask where she was and why she was not at work if she truly expected her back on 6 January 2014.

[44] If the Respondent had taken the Applicant to have abandoned her employment it is not clear why Mr Thomas contacted the Applicant on 8 or 9 January 2014 (there appears to be a conflict on that date but its resolution is not germane to my decision) to call her in for a meeting. It is also not clear why, if it was considered that the Applicant had abandoned her employment, Mr Thomas would expect her to come to work on 13 January 2014 as he suggested in his evidence. Such an expectation does not accord with an view that the Applicant had abandoned her employment.

[45] Whilst I find it unusual that the Applicant did not go to work on 13 January 2014 I accept that she understood from her conversation with Mr Thomas on 12 January 214 that she should not attend until 16 January 2014.

[46] Mr Thomas, in his witness statement, says that he and Ms Karopoulos met with the Applicant on 16 January 2014 and, because they had not been able to contact her from 3 - 8 January 2014, ‘advised her of her termination.’ 5

[47] I find nothing in the conduct of the Applicant that suggests she abandoned her employment. All of the facts lead to a conclusion that her employment was terminated at the initiative of the Respondent.

[48] On the basis of the conduct of the Respondent and the admission of Mr Thomas I am satisfied that the Applicant’s employment was terminated at the initiative of the employer.

[49] I am therefore satisfied that the Applicant was dismissed. I am also satisfied that the Small Business Fair Dismissal Code does not apply and that the termination was not a redundancy.

Was the Applicant unfairly dismissed?

[50] In order to determine if the Applicant was unfairly dismissed I must consider if her dismissal was harsh, unjust or unreasonable.

[51] Section 387 of the Act states:

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.

(a) was there a valid reason

[52] The Respondent says that it terminated the Applicant’s employment because she abandoned her employment.

[53] As I have found above, I do not consider that the Respondent had a basis on which it could say the Applicant had abandoned her employment. By not leaving any message for the Applicant or texting her – as was common between the Applicant and Ms Karopoulos – it cannot be said the Respondent made any real attempt to contact the Applicant.

[54] The evidence clearly shows that, on being contacted, the Applicant did respond to Mr Thomas. There is no reason to find that she would not have responded to a message from Ms Karopoulos.

[55] Given my finding that the Applicant did not abandon her employment it cannot provide a valid reason for dismissal.

[56] The Respondent suggests that the Applicant’s past history of arriving at work late may provide a valid reason for her dismissal. Whilst the evidence certainly shows that, at times, the Applicant was late for work it also shows she always advised her employer when she was going to be late. There is no evidence to suggest that this was of such concern to the Respondent that it sought to take any action to counsel the Applicant about this tardiness.

[57] The Respondent also suggests that it had a valid reason to terminate the Applicant’s employment based on her request for Monday 23 December 2013 off and the additional week in January 2014 off at short notice. Whilst I acknowledge this was quite an inconvenience to the Respondent it did approve the leave in December 2013 and, on my findings above, the extra week in January 2014. It is difficult to see how, in these circumstances, the request for, and approval of, leave at short notice would provide a valid reason for dismissal.

[58] I therefore find there is no valid reason for the dismissal of the Applicant.

(b) was she notified of the reason

[59] In Crozier v Palazzo Corporation Pty Ltd 6a Full Bench of the AIRC held that procedural fairness would require that an employee be advised of the reason for the termination before the decision to terminate employment is made.

[60] In this case the Applicant was notified of the reason for the termination of her employment on 16 January 2014. At that time she was provided with a letter of termination dated 10 January 2014.

[61] Clearly the decision to terminate her employment was made before she was notified of the reason.

(c) Opportunity to respond

[62] The Applicant was not, in this instance, given an opportunity to respond to the reason for terminating her employment prior to the decision to terminate her employment being made. The Respondent had many opportunities to advise the Applicant that it was considering terminating her employment for her non-attendance on 6-10 January 2104 but it did not do so. The Respondent never gave the Applicant an opportunity to explain what had happened and did not take her response into account prior to making the decision terminate her employment.

[63] Whilst the termination letter given to the Applicant suggests that her ‘absentee record has overshadowed her work’, the evidence is unequivocal that the Applicant was never told her absenteeism was a problem or warned that further absenteeism may result in the termination of her employment.

(d) Unreasonable refusal to allow a support person

[64] When Mr Thomas met with the Applicant he called another worker in as the Applicant’s support person. Mr Thomas accepts that this was an error on his part and he should have allowed the Applicant to determine who she would have as a support person.

(e) unsatisfactory performance

[65] The dismissal does not relate to unsatisfactory performance

(f)-(g) the size of the employer’s undertaking

[66] I accept that the Respondent does not have access to human resource expertise and that this may have affected the way it dealt with this issue.

[67] However, the size of the Respondent does not excuse the fact that it made no real attempt to contact the Applicant or make her aware of the seriousness of her absence in January 2014. There was more that could be done and should have been done.

(h) other matters

[68] I have taken into account the evidence and submissions of the Applicant that she was intimidated by Ms Karopoulos. Whilst I accept that the Applicant may not have been in the best state of mind over Christmas given the sudden death of her uncle, the evidence of the texts between the Applicant and Ms Karopoulos, including one of the day of her dismissal which reads ‘Hey, can you please write me a ref and send it to my home address ASAP? Thanks, that would be good’ do not suggest she was intimidated by Ms Karopoulos. Whilst Ms Karopoulos’ language on 19 January 2014 may have been intemperate, it does need to be borne in mind that this was the peak business period for the Respondent.

[69] I accept that the Applicant’s mother did ring Ms Karopoulos but there seems to me no reason for the Applicant not to have followed this up with a text or call herself (as her mother indicated she would) to Ms Karopoulos prior to or near 6 January 2014.

Conclusion

[70] For all of the reasons given above I find that the dismissal of the Applicant was harsh, unjust and unreasonable. I therefore find that she was unfairly dismissed.

[71] I note that the Applicant says she is also owed 21.32 hours of accrued annual leave. The Respondent had withheld this amount as it claimed the Applicant had left her employment without notice.

[72] I have found that the Respondent dismissed the Applicant from her employment. The Respondent’s grounds for withholding the annual leave amount do not exist. This is an entitlement owing to the Applicant that should, in my opinion, now be paid by the Respondent.

Remedy

[73] The Applicant seeks compensation. I am satisfied that reinstatement is not appropriate in the circumstances.

[74] The Applicant gives evidence that, upon her dismissal, she immediately sought employment and applied for a number of jobs, using the library computers, prior to securing her current employment.

[75] The Applicant says she was unemployed for 2 ½ - 3 weeks. She is currently earning $40,000 per annum, which is the same amount she earned with the Respondent. For the purpose of determining compensation I accept that the Applicant was not available for work in the week beginning 6 January 2014. She had sought leave without pay for that week. Her employment was terminated on 10 January 2014. She says she commenced her current job in early February. I have accepted that the Applicant was out of employment for a period of 2 ½ weeks or 13 working days.

[76] In determining the amount of compensation to be ordered in this matter I have taken into account the effect of any order on the viability of the Respondent’s enterprise and do not consider that the amount I shall order will have any adverse effect.

[77] The Applicant was employed by the Respondent for 9 months prior to the termination of her employment. I am satisfied she would have remained with the Respondent for one more year at most.

[78] Given that she secured a new job within 2 ½ weeks of her dismissal the remuneration lost to the Applicant is $1999.99 plus 9.25% superannuation.

[79] The period the Applicant was without work has passed. Nothing occurred such that the amount of compensation should be adjusted for contingencies. The Applicant did not receive notice or any payment in lieu of notice when she was dismissed.

[80] I am satisfied that the Applicant sought to mitigate her loss by seeking new employment.

[81] I consider that the amount of compensation should not be reduced for any misconduct of the Applicant as I have found none to exist.

[82] The amount of compensation I intend to order does not exceed the compensation cap.

Conclusion as to compensation

[83] I will issue an Order in conjunction with this decision that the Respondent pay the Applicant a sum of $1999.99 gross, to be taxed according to law, plus 9.25% superannuation. The amount is to be paid within 21 days of the making of the Order.

COMMISSIONER

Appearances:

R. Stephenson for the Applicant.

F. Nesci for the Respondent.

Hearing details:

2014.

Melbourne:

June 5.

 1   Exhibit R1.

 2 (1995) 62 IR 200, 205-6.

 3   Print S5904 (unreported, AIRCFB, Polites SDP, Watson SDP and Gay C, 12 May 2000).

 4   Exhibit R1.

 5   Exhibit R2, paragraph 7.

 6 (2000) 98 IR 137, 151 [70]‒[73].

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