Cathy Attard v Violet Nominees Pty Ltd T/A Melton Willows SRS

[2014] FWC 2527

[2014] FWC 2527

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Cathy Attard
v
Violet Nominees Pty Ltd T/A Melton Willows SRS
(U2013/13234)

COMMISSIONER LEE HOBART, 30 MAY 2014

Application for unfair dismissal remedy.

[1] This matter involves an application made pursuant to s.394 of the Fair Work Act 2009 (the Act) for unfair dismissal remedy. Ms Attard (the Applicant) claims that she was unfairly dismissed from her employment with Violet Nominees Pty Ltd T/A Melton Willows SRS (the Respondent). 

[2] The application was lodged 4 September 2013. The matter was listed for hearing before me on 10 February 2014. The hearing was conducted in Melbourne. The matter proceeded by way of determinative conference. The Applicant was self represented and gave evidence on her own behalf. The Respondent was represented by the proprietor of the business, Mr Trevor Weekes who also gave evidence for the Respondent. Ms Warne and Mr Kovacevic also gave evidence on behalf of the Respondent.

Background

[3] The Applicant was employed as a casual cleaner for the Respondent from 1 July 2011. Her duties included cleaning resident’s rooms, the facilities common areas, kitchen and outdoor areas. On 28 May 2012 the Applicant commenced a Certificate III in Aged Care traineeship with the Respondent. At or around this time she claims to have commenced permanent part-time employment. 1 This is disputed by the Respondent who claims that the Applicant was a casual employee up until the 30 June 2013.

[4] Mr Weekes, for the Respondent, claims that he telephoned the Applicant on Tuesday, 20 August 2013 at approximately 9.00 am, was unable to speak to the Applicant and left her a voicemail message stating: “Look, I’ve decided your services are no longer required and its better for us all that, if you just, I finish you up”. 2

[5] The Applicant claims that she first became aware of the dismissal on Thursday, 22 August 2013, the day she received a written letter from Mr Weekes. 3 The Applicant disputes receiving the voicemail message allegedly left by Mr Weekes.4 The letter of termination received from Mr Weekes is dated 20 August 2013. The reason given for the dismissal in that letter is “...your Services are no longer required...”.5

The law to be applied

[6] A person is protected from unfair dismissal if:

“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.

Note: High income threshold indexed to $129,300 from 1 July 2013.

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.”

[7] Unfair dismissal is governed by Part 3-2 of the Act. Section 385 of the Act sets out what constitutes an unfair dismissal;

“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 s.388.

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.

(2) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(b) the person was an employee:

(i) to whom a training arrangement applied; and

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(c) the person was demoted in employment but:

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.

(3) Subs.(2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.

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.”

[8] With regard to s.385(a), s.386 of the Act sets out the meaning of ‘dismissed’. It is clear the Applicant was dismissed within the meaning of the Act.

[9] I note that there are disputed facts relevant to determining the date of effect of the dismissal. A dismissal can only take effect when it has been communicated to the employee whose employment is being terminated. 6 On the Applicant’s evidence, the dismissal took effect on the 22 August 2013, the day she received the letter of termination from Mr Weekes. On the evidence of Mr Weekes, the termination took effect from the 20 August 2013, the day that he claims to have left the voicemail message referred to above, on the Applicant’s phone. I will deal further with this matter later in the decision. However, it is clear that the Applicant was employed from 1 July 2011 until at least 20 August 2013, a period in excess of 12 months. Further application was lodged within the time period specified in s.394(2)(a), even if the termination took effect on the earlier date.

[10] It is clear on the evidence of both the Applicant and the Respondent that there were only four employees at the time of the dismissal and therefore the Respondent was a small business (as defined in s.23 of the Act) at the time of the dismissal. The Applicant gave evidence at the hearing that she thought the Respondent had four employees. 7 The Respondent’s evidence was also that there were four employees at the time of dismissal.8 However, it is also clear that the Applicant was employed for a period in excess of 12 months and therefore the Applicant has completed a period of employment with the employer of at least the minimum employment period. Therefore, the requirement of s.382(a) of the Act is met.

[11] At the time of the dismissal the Applicant was being paid $17.43 per hour, consistent with the Level 1 rate in the Aged Care Award 2010 9 (the Award) that applied at that time.10 There is no dispute the Applicant was employed part-time at the time of the dismissal. There is some dispute as to the days of the week and the particular hours that the Applicant worked. However, even if the Applicant was working full time, her earnings would be far less than the high income threshold. Hence the requirements of s.382(b) of the Act are met. I also note it is likely having considered the evidence relating to the duties of the Applicant and the industry of the Respondent that the Applicant was covered by the terms of the Award.

[12] With regard to s.385(c) of the Act, it is clear the Respondent was a small business at the time of dismissal, within the meaning of s.23 of the Act. It is therefore necessary to consider whether the dismissal was consistent with the terms of the Small Business Fair Dismissal Code (the Code).

[13] With regard to s.385(d) of the Act, there was no suggestion that the Applicant’s dismissal was a case of genuine redundancy. Section 385(d) of the Act does not apply in this matter.

[14] Accordingly, the matter for determination is whether the dismissal was consistent with the Code. If the dismissal was not consistent with the Code, I must determine whether the dismissal was harsh, unjust or unreasonable. 11

The evidence:

[15] The Applicant is a carer for her husband of 21 years and has three sons, one of whom has Aspergers Syndrome. The Applicant considers the termination unfair, in particular she alleges that she was given no prior notice and no written or verbal warnings during her two and a half years of employment. 12 The Applicant also submits that she was given no opportunity to meet with the Respondent to discuss the decision to end her employment.

[16] The Applicant claims that she was commended on the quality of her work by Mrs Tammy Weekes Kovacevic, the Co-ordinator/Manager at the Respondent (the daughter of Mr Trevor Weekes and sister-in-law of the Applicant) on 5 August 2013, quite close, the Applicant alleges, to the time of her dismissal. Further, the Applicant claims that within weeks of the dismissal she was offered an “overnight position” with the Respondent and had discussions with the Respondent for longer term plans to undertake further training. Mr Weekes disputes that such an offer was made. Mrs Weekes Kovacevic who was said to have made the offer, did not appear to give evidence.

[17] The Applicant claimed that during a training course on the 13 August 2013 she was being trained by Mrs Weekes Kovacevic and that the Applicant asked Mrs Weekes Kovacevic how it was that she was able to dispense medication despite having a criminal record. It was after this exchange that the Applicant claims that she was ignored by Mrs Weekes Kovacevic as well as other employees. 13 The Applicant also alleges that Mrs Weekes Kovacevic was involved in a disagreement with the Applicant’s husband (the brother of Mrs Weekes Kovacevic) relating to an “illegal” shotgun and handgun, previously belonging to the deceased brother of Mrs Weekes Kovacevic and that was said to have been left at the Applicant’s property.

[18] The Applicant also made references to “on-going problems” with Mr Adam Weekes, the son of Mrs Weekes Kovacevic and the grandson of Mr Weekes. However, it is not clear how the alleged problems with Mr Adam Weekes impacted on the alleged unfair dismissal of the Applicant.

[19] The evidence of Mr Weekes did not deal directly with the allegations regarding Mrs Weekes Kovacevic, other than in his witness statement that “[the Applicant] seem’s to have a lot of Personal Issues with the (PSC) Personal Care Co-Ordinator which is her Sister In-Law (who is my daughter). And any rules at Melton Willows.” 14 However when asked by the Applicant, Mr Weekes responded as follows:

“MS ATTARD: So you’re telling the court that your daughter is not a convicted drug trafficker and dispensing medication at work (indistinct) my question?---I don’t see what that’s got to do with the proceedings. The Department of Health leave it up to me who I hire.

Has she - - -?---So it’s totally up to me - - -

Has she been given a police check?---At that time she didn’t need a police check when I first employed her. It was totally up to me. The department’s regulation is it was up to me.” 15

[20] The Applicant vigorously disputes the claim of Mr Weekes that she commenced part-time employment on 1 July 2013 and that prior to that time she was a casual employee. The Applicant claims that while she commenced employment on 1 July 2011 as a casual employee, that she converted to part-time employment at the time of the commencement of the traineeship around 28 May 2012. 16 In support of this contention the Applicant submitted a copy of the confirmation of the Training Contract provided by Skills Victoria.17 The Training Contract refers to the Applicant being an “Existing Employee Part Time”. Importantly there is also a copy of a pay advice18 for the fortnight ending 26 June 2012. That advice shows that the Applicant was paid $16.45 per hour for 24 hours work, a rate marginally less than Level 1 of the Award that applied at that time ($16.49). There is no reference to a casual loading being paid in that pay advice and the gross pay recorded there of $394.80 is in fact the product of 24 hours multiplied by $16.45. That is, there is no other amount that has been added in contemplation of the casual loading that the Applicant would have been entitled to if she was in fact a casual at that time. The Applicant stated that she has never been paid a casual 25% loading in addition to her wage and that her actual pay rate was that of a part-time employee.

[21] The Applicant denies that she signed a “Workplace Agreement” dated 1 July 2013 as alleged by the Respondent. 19 That document describes the Applicant as a “PSA Level IV Age Care/Cleaner”. The days to be worked are stated in the document as every Tuesday and Wednesday of the week and the hours to be worked as six hours per day. The rate of pay is specified as $17.437 per hour. The document states that the start time is 9.00 am and the finish time is 3.30 pm with meal break times at 12.30-1.00pm. The Applicant claims this document is forged and that she has never seen or sighted the document before it was forwarded to her as part of a second letter of termination that she received on 4 September 2013. There is a further document tendered by the Respondent headed “Cathy Attard: Work Schedule”. This document is dated 5 August 2013. In contrast to the “Workplace Agreement” detailed above, this document provides under the heading “Start Times” the following:

“Shift can be Tuesday and Wednesday 9am To 3.30pm;

Monday and Tuesday 9am To 3.30pm;

Tuesday/Wednesday/Thursday 9.30am To 2.00pm.” 20

[22] This document is not signed by the Applicant. It is signed by Mr Weekes. In handwriting on the document it says: “Copy. This was given to [the Applicant] on the 5th of August 2013”. This document also refers to the need to keep mobile phones in the office or in the car.

[23] The Applicant stated at the commencement of the proceedings that her work days were Tuesday and Wednesday but that occasionally she was asked to work on a Monday and a Tuesday instead. The Applicant’s evidence was:

“…We had a verbal agreement between Tammy and Trevor that I would start work at nine to 9.20 and work until 3.10pm. I would leave work to pick up my son and Trevor’s grandson, Luke who is Tammy’s son, from school. I would return back and complete any unfinished work…” 21

[24] Later in her evidence the Applicant stated “…to save him (Mr Weekes) from going out to pick him up, and bring them back to the home.” 22

[25] Mr Weekes made no reference to his grandson also being picked up by the Applicant in his witness statement however he agreed during the hearing that the Applicant picked up his grandson as well as her own son from school. 23 However, he referred to the problem of the Applicant turning up to work at 9.15/9.20am start then having a talk with staff while having a coffee and leaving at 3.10pm to pick up her child from school. Then returned to wait for her other son from work in Melton but did not return to her duties.”24 The Applicant dismissed the suggestion she waited at work for her older son, who is 20 years old and drives his own car.25

[26] The Applicants’ evidence is that she was not rostered on to work on Monday, 19 August while Mr Weekes claims that she was rostered to work that day. In fact Mr Weekes claims that the Applicant worked Mondays and Tuesdays because that’s how she preferred to work. 26

[27] The Applicant attended a doctor on 20 August 2013 and a medical certificate was supplied to evidence this. 27 The medical certificate states that the Applicant was unfit to work from 20 August 2013 until Monday 2 September 2013. As already stated it is the Applicant’s evidence that she was rostered to attend work on 20 August 2013 but not 19 August 2013. Her evidence is that she did not contact the Respondent to notify of her absence on 20 August 2013 and did not do so until after lunchtime the next day (21 August 2013) when she claims to have sent a text message and an email to Mr Weekes. Mr Weekes confirmed he received her email on 21 August 2013.28 The Applicants evidence is that she was too unwell to contact him on 20 August 2013 and that she just went to bed on that day.29

[28] Mr Weekes in his statement claims that the Applicant was “on the mobile phone constantly”. 30 Mr Weekes stated that the Applicant told him that she received 40 to 50 text messages a day from her husband. “...when I asked her why she said because he is crazy...”31 The Applicant tendered the mobile phone records of her husband and asked Mr Weekes to show where she received 30-50 SMS messages per day from her husband. In response, Mr Weekes claimed that he had been informed by “other staff” that she was getting calls from other people.

[29] As to talking to the Applicant about the use of her phone, Mr Weekes evidence in his statement was, “...I have had Monday morning meetings with Cathy and the other Staff when Cathy finally turned up for work, in one of those meetings I asked that all Mobile phones be either Turned off or be put in the Office or left in the kitchen drawer...” 32 When asked by me about the discussions Mr Weekes had with the Applicant to warn her about her performance, his evidence was rather vague:

“What do you say about that claim, that the Applicant clearly says that she had had no warnings about her performance?---She did have warnings because we had staff meetings with other staff and, I think, in their statements they can verify that we did have meetings on a Monday when she got to work, that any problems that I had had or even when we’re signing over the – put her on part-time – actually, it was a Monday morning and I got her to sign in front of witnesses that she agreed to the part-time work. I thought it would give her security in her job, that she wasn’t casual anymore, and give her sick pay and (indistinct) like that and - - -

So if anyone was to talk to her about her performance who was that person? Was that you?---Performances? Yes.

Yes. So what do you say that you said to her about her performance?---Oh, it was just in a general not - I didn’t have a one on one. I was just a general meeting about the phones and about the – what I expected her to do. Like, I wrote up a list of things we wanted her to do really and – in her performance.

Well, all right?---And being late. We - - -

But what did you say to her? That’s what I’m interested in?---Say to?

What did you say to Ms Attard about her performance?---Well, it wasn’t so much – it was more about being late, not so much her performance. It was more about coming to work late and being on the phone. Her work performance was okay. It was fine.

Right. So it was about - - -?---It was more - - -

Lateness and the phone?---It was more related to the – being on the phone and being late.

All right and did you ever indicate to her that her employment was at risk?---No, I didn’t.

Right. How many employees does your business – or did your business have at the time you dismissed - - -?---Four.

Four. Now, have you ever heard of something called the Small Business Fair Dismissal Code?---No.

No. In terms of what you call the general conversations on a Monday about the two key issues which led to the dismissal, the use of the phone and the lateness, can you tell me when you had those conversations? What dates?---Oh, look, it was just a Monday thing that I – I like to have a meeting with her. I didn’t – I might have put it in my diary but it was just a general meeting that every – each Monday I’d come out and have a talk to them. If there was any problems I’d bring it up in front of (indistinct) I tried to make it like a staff meeting.

Okay. So you can’t recall specifically when?---No. It was just a general Monday thing I’d like to do.

Can you recall how often you raised these issues with her?---Oh, it might be twice a month or something, you know? It might be two times every fortnight. It might be every fortnight. My accountant would do the pays for me and the payslips were printed off and if Cathy wasn’t there they were left in the drawer for her. So her payslips were always there.” 33

[30] Ms Warne also gave evidence on behalf of the Respondent. She stated the following in her witness statement:

“Cathy was using her mobile phone on the job a lot. Myself and other staff members were also guilty of this. Our boss asked us all to refrain from using our phones and we were asked if we would be happy to sign an agreement stating such. All employees except Cathy signed this agreement as soon as it was given to us. Even though Cathy hesitated in signing it she did so later that day. However this did not stop her from using her mobile on the job. She would be talking to her kids, arguing with her husband or on Facebook”. 34

[31] At the hearing, Ms Weekes confirmed that the Applicant was present during the conversation with Mr Weekes about use of the mobile phone. However, Ms Warne could not recall what day or what month that conversation took place. I note that the Applicant disputes that she signed any such agreement. A copy of the agreement about mobile phone use was not provided to the Commission.

[32] Ms Warne claimed to work “pretty closely” with the Applicant. However, under questioning her evidence was that in fact Ms Warne worked in the kitchen, while the Applicant worked as a cleaner. When asked how many times a day the two would “cross paths” she answered “...just say half a dozen times maybe.” 35 Ms Warne also referred to events on 27 May 2013 where the Applicant came into work late as “...was usual for her”. Later in the day, that she overheard an argument between the Applicant and Mrs Weeks Kovacevic where the Applicant allegedly told Mrs Weeks Kovacevic to “stick the job up your arse, I resign...”36.

[33] I note at this point that the evidence of Ms Warne commenced after a short adjournment. Up until that time Ms Warne was not present in the hearing room. Prior to that adjournment, I explicitly warned Mr Weekes that he was not to discuss the case with the witnesses who were yet to give evidence. When the proceedings recommenced, the Applicant rose to make the claim that she overheard Mr Weekes say to Ms Warne and Mr Kovacevic that:

“Mr Weekes just said in front of us, and whispered it to both his witnesses, “Just remember, mention her phone calls.” 37

[34] I asked Mr Weekes to respond to the allegation made. He conceded that he had spoken to the witnesses in the terms that the Applicant stated. This behaviour of Mr Weekes impacts on the credibility of the evidence given by both the Respondent’s witnesses, at least so far as it related to the Applicants purported use of the phone. I further note that the behaviour of Mr Weeks in deliberating coaching the witnesses in this way, particularly after having been explicitly warned by me not do so, was both regrettable and reprehensible.

[35] Mr Kovacevic also gave evidence on behalf of the Respondent. Mr Kovacevic is the husband of Ms Weeks Kovacevic, Mr Weekes son in law and brother of the Applicant. Mr Kovacevic claimed that his wife was under stress because of the Applicant’s behaviour. He agreed that his evidence on this point was based solely on conversations with his wife. Mr Kovacevic stated his connection to the business was that of a silent investor and that he had no involvement in the management of the business and had no direct knowledge of the performance of the Applicant. However, Mr Kovacevic claims that he was at the business “nearly every day”, having coffee after dropping off his kids, having lunch and then also having tea there with his children. He claimed he would assist with maintenance.

[36] He claimed that he told his wife, “You have to just – it can’t be family anymore.” We kept trying to look after her but then I said, “That’s it. Just treat her as employee now.” 38

[37] Essentially, the evidence of Mr Kovacevic reveals that while he had no role in the management of the organisation, he expressed views to his wife as to the manner in which she should deal with the employment of his sister, the Applicant.

[38] I note that a number of additional unsworn witness statements were provided by the Respondent. However, the authors of those statements did not appear to attest to them or be cross examined on their contents. In large measure their contents are contradicted by the sworn evidence of the Applicant. Consequently I have placed little or no weight on these statements.

Consideration

Lateness of the Applicant

[39] A great deal of the evidence of the Applicant and of Mr Weekes is in direct conflict. In general, I found the evidence of the Applicant to be cogent and consistent. The evidence of Mr Weekes was inconsistent and vague and his claims on key matters such as the employment status of the Applicant and her days of work are not supported by the documentation in evidence. In general, where there is a conflict in the evidence, I prefer the evidence of the Applicant.

[40] It is clear that the Applicant did not attend for work on Monday, 19 August 2013. While, the Applicant claims that she was not rostered to work on that day, Mr Weekes disputes this and says that in fact that she was. However the claim that she was in fact rostered to work on the Monday is inconsistent with the agreement Mr Weekes claims was signed by the Applicant 1 July 2013. 39 which clearly states that the days the Applicant is to work are Tuesdays and Wednesdays. It is difficult to comprehend that Mr Weekes would create a document specifying the days of work to be Tuesdays and Wednesdays, give evidence that the purpose of the document was to commence the Applicant on part-time work to provide among other things, certainty for the Applicant, but maintain that there was at the same time a verbal agreement that she not work on Tuesdays and Wednesdays but on Mondays and Tuesdays. There is also the “Work Schedule” document that is dated 5 August 2013 that is said to also to apply to the Applicant. This document provides a number of options for the working days and hours of the Applicant.

[41] The payslip supplied by the Applicant supports her claim that she was in fact a part-time employee from May 2012. This finding is inconsistent with the claim of Mr Weekes that Attachment P of the Applicant’s witness statement [Attachment P] represented the commencement of the Applicant’s employment as a part-timer. Overall, the evidence supports the Applicant’s claim that she had in fact been working part-time since May 2012. In summary, the evidence adduced by Mr Weekes to support his contentions as to the working arrangements of the Applicant is inconsistent and contradictory.

[42] The Applicant claims that she has never seen or signed either Attachment P or the Work Schedule document and claims that her signature was affixed to Attachment P without her knowledge. She was clear and cogent in her evidence as to her verbal agreement for working arrangements. The fact that she picked up Mr Weekes grandson from school supports her contention that there was consent from the Respondent to her departing the workplace before 3.30 pm in order to get to the school in time. Mr Weekes did not provide a satisfactory explanation to reconcile the fact of his grandson being picked up by the Applicant with his view that the Applicant was required to work until 3.30 pm

[43] In summary, the evidence supports a finding that the Applicant had a verbal agreement to work Tuesdays and Wednesdays, starting at 9.20 am after dropping her child at school and leaving at 3.10 pm to pick up her child as well as the grandson of Mr Weekes, then returning to the workplace with her child and the grandson to perform further work, presumably to make up her six hours for the day. Further and consistent with this finding, I consider it to be more likely that the Applicant was not rostered to work on Monday 19 August.

[44] I need to determine whether on the balance of probabilities, the alleged conduct occurred. 40 Having accepted the evidence of the Applicant as to the working arrangements that applied to her, it follows that I am not satisfied that she was consistently late in arriving at the workplace. The evidence was that she was in fact arriving and departing at the times that were agreed verbally with the Respondent. Accordingly, I am not satisfied that the alleged lateness of the Applicant constitutes a valid reason for dismissal.

The use of the mobile phone

[45] I am satisfied on the evidence that excessive use of private mobile phones by staff generally was a matter that concerned Mr Weekes and that he raised his concerns at his Monday staff meetings.

[46] Mr Weekes initially claimed that the Applicant told him that she was sent 40-50 telephone text messages a day from her husband because he “is crazy”. The Applicant submitted her husband’s mobile phone records for the three months prior to her dismissal. These records do not support the claim that there was anything like the amount of telephone messages alleged to have been sent by the Applicant’s husband.

[47] The evidence of Mr Weekes altered somewhat from his witness statement during the hearing to suggesting that the Applicant was receiving 40-50 telephone text messages per day “generally”. This evidence was not particularly credible. Mr Weekes relied on the claims of other staff as to the Applicant being consistently on the mobile phone. However, other staff, other than Miss Warne, did not appear to give evidence. The evidence of Ms Warne is that the Applicant was not the only employee guilty of overuse of the mobile phone during work hours but Ms Warne claims that the Applicant continued to use the phone excessively. However as discussed above, Ms Warne, despite making the claim at first instance that she worked closely with the Applicant, disclosed that at the relevant time she only crossed paths with the Applicant half a dozen times a day. Further, I note that the evidence of Ms Warne on the Applicant’s use of the mobile phone is unreliable given the admitted prompting by Mr Weekes prior to her giving evidence.

[48] The Applicant stated under questioning from me that Mr Weekes did speak to her about the use of her mobile phone. “He pulled me aside and spoke to me about our mobile phones”. 41 However, she claimed that this related to his concerns about Ms Warne. “It was not because of me using my phone”.42 In any case, the Applicant claims that she complied with the direction to not use the phone and left her phone in the car during work time.43

[49] The evidence supports a finding that use of mobile phones during working hours was a problem at the workplace. However, this was not an issue isolated to the Applicant. Despite the claims about the use of the mobile phone being a significant issue with the Applicant, Mr Weekes was very vague about the warnings he gave to the Applicant about the use of the phone. His evidence was that he had not had any one on one meetings with her about his concerns. Rather they were general warnings given to all of the staff at the Monday meetings. He was vague about when these had occurred and how often. Given my acceptance that the Applicant generally worked on Tuesdays and Wednesdays, it is likely that she was rarely in attendance at the Monday meetings to which Mr Weekes was referring, however the evidence supports a finding that all staff were warned about mobile phone use during working hours. However, there is insufficient evidence to satisfy me that the Applicant ignored these warnings. Rather, I accept that she complied with them. I am not satisfied that the Applicant’s alleged excess use of the mobile phone in fact occurred.

The dismissal

[50] The evidence of Mr Weekes is that he rang the Applicant on Tuesday, 20 August 2013 at around 9.00 am, was unable to speak to her, and left a voice message that he characterised as one designed to effect the dismissal of the Applicant. The voicemail that Mr Weekes says he left did not disclose the reason for the dismissal. His evidence was that it was in the nature of “your services are no longer required”. The Applicant claims that she did not get this voicemail. In any case, the evidence is clear that the Applicant was ill on 20 August 2013 and was unable to work on that day or further days up until 2 September. Her evidence was that she was too ill to contact the employer on 20 August 2013 but that she did contact the Respondent on 21 August 2013 by email. Mr Weekes agrees he was advised the Applicant was ill on that date. However, he maintains that she attended the doctor only after he advised her she was terminated by voicemail.

[51] I accept the evidence of the Applicant that she did not receive the voicemail message indicating that she was dismissed on 20 August 2013. The fact that she forwarded her doctors certificate to the Respondent on 20 August 2013 is consistent with her assuming she remained in employment. The Respondent sent a letter dated 20 August 2013, that was received by the Applicant on the 22 August 2013 dismissing her. 44 The date of effect of the dismissal is therefore 22 August 2103. The letter dated 20 August 2013 and received by the Applicant on 22 August 2013 does not disclose the reason for the termination. The Applicant responded in writing to the Respondent45, seeking reasons for the dismissal. The Respondent then wrote again to the Applicant at that point detailing the reasons for the dismissal. This letter refers to numerous meetings between the Applicant and management in relation to performance and failed attempts to contact the Applicant on Monday 19 August and Tuesday 20 August.46 Under questioning from me, Mr Weekes admitted that at no time prior to the dismissal did he tell the Applicant that her employment was at risk.47 Mr Weekes also said he had no issue with the “performance” of the Applicant. His concerns were focussed on the alleged lateness and mobile phone use.48

Was the dismissal consistent with the Code? (s.385(c))

[52] Section 396 of the Act requires that I consider whether the dismissal was consistent with the Code before considering the merits of the application. Given the facts of this matter, I have determined that the dismissal was not consistent with the Code.

[53] As discussed, the Respondent was a small business within the meaning of the Act at the time of dismissal. The Code provides as follows:

“Small Business Fair Dismissal Code

Commencement

The Small Business Fair Dismissal Code comes into operation on 1 July 2009.

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.”

[54] The reason given by the Respondent for the dismissal involved the Applicant’s alleged lateness and use of the mobile phone during work hours. A failure to carry out lawful and reasonable instructions consistent with the employment contract can most certainly, depending on the circumstances be considered serious misconduct. However, for the reasons outlined above I am not satisfied that the conduct alleged of lateness and excess mobile phone use in fact occurred.

[55] In terms of the requirements of “Other dismissal”, the employee must be given a valid reason based on the employees conduct or capacity to do the job. In the circumstances of this case, there was no valid reason for the dismissal. Nor was the Applicant ever advised that her employment was at risk. Overall, I do not consider the dismissal of the Applicant to be consistent with the Code.

Was the dismissal harsh, unjust and unreasonable? (s.385(b))

[56] As set out above, the criteria for considering whether a dismissal was harsh, unjust or unreasonable is set out in s.387 of the Act.

Section 387(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);

[57] To determine a valid reason for dismissal relating to conduct, the Commission must determine whether, on the balance of probabilities, the conduct allegedly engaged in by the employee actually occurred. 49 The test is not whether the employer believed on reasonable grounds, after sufficient inquiry, that the employee was guilty of the conduct. The Commission must make a finding as to whether the conduct occurred based on the evidence before it.50 In this matter, for the reasons outlined in the consideration above, I am not satisfied that the conduct occurred. I have detected no other valid reason for the dismissal. I do not consider there to be a valid reason for the dismissal.

Section 387(b) - whether the person was notified of that reason.

[58] I am satisfied that the Applicant was not notified of the reason for her dismissal. She was not told of the reason until after she asked for reasons for her dismissal in writing. It was at that time that the claims of lateness and excess mobile phone use were communicated to her. The notification of a valid reason, should there be one, must be made before the decision to terminate is made. 51 That clearly did not occur in this case.

Section 387(c) - whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person.

[59] For the Commission to have regard to whether an employee has been given an opportunity to respond to the reason for the dismissal there needs to be a finding that there is a valid reason for the dismissal. 52 In this case, I am not satisfied that there was such a reason.

Section 387(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.

[60] There was no discussion held with the Applicant relating to the dismissal hence the question of having a support person did not arise.

Section 387(e) - if the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal.

[61] The Respondent claimed there were no issues with the performance of the Applicant. 53 The reasons for dismissal related to the conduct of the employee.

Section 387(f) - the degree to which the size of the employer’s enterprise would be likely to impact on procedures followed in effecting the dismissal and Section 387(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

[62] The Respondent is a business of four employees. It is not a large business and there was no suggestion it had any level of human resources expertise. This lack of capacity in the human resources area will have had some impact on the procedures followed in effecting the dismissal and I have taken this into account in considering whether the dismissal is harsh, unjust or unreasonable.

Section 387(h) - any other matters FWA considers relevant.

[63] None.

Conclusion as to the nature of dismissal

[64] I am not satisfied there was a valid reason for the dismissal. There was a total lack of process followed in effecting the dismissal. In a workforce of only four employees Mr Weekes had on his evidence not had a “one on one” conversation with the Applicant about his concerns. He had provided no indication to her that her employment was at risk. On his own evidence he sought to dismiss her by leaving a voicemail message that did not disclose the reason for the dismissal.

[65] For the reasons set out above, I find that the Respondent did not have a valid reason to dismiss the Applicant from her employment. She was not notified or given an opportunity to respond. I have considered the size of the Respondent’s enterprise and the evident lack of human resources expertise. However, this lack of expertise does not excuse behaviour of the Respondent in this case in failing to follow any type of procedure to effect the dismissal.

[66] In all of the circumstances I find that the dismissal was harsh, unjust and unreasonable.

Remedy

[67] The relevant provisions of the Act pertaining to remedy are contained in s.390 of the Act:

“390 When the FWC may order remedy for unfair dismissal

(1) Subject to subs.(3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) The FWC may make the order only if the person has made an application under s.394.

(3) The FWC must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and

(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.

Note: Division 5 deals with procedural matters such as applications for remedies.”

[68] It is also necessary to consider the Objects of Part 3-2 of the Act especially s.381(c) of the Act which provides that an Object of that Part of the Act is to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.

[69] The presumption in the legislation is that should a dismissal be found to be unfair, that reinstatement is the primary remedy and that compensation is a secondary consideration if reinstatement is not appropriate.

[70] In this matter, the Applicant has secured further casual employment as of 6 January 2014 and expects to continue in that employment. The Applicant does not seek reinstatement as she is happy with the employment she has now. 54 Mr Weekes opposes reinstatement of the Applicant should I find the dismissal to be harsh, unjust and unreasonable. He felt there was “...too much bad blood...so to speak”.55

[71] Reinstatement in the circumstances of this case is not an appropriate remedy. The Applicant has successfully secured further employment and does not seek reinstatement. Reinstatement is opposed by the Respondent. In these circumstances, I consider reinstatement to not be an appropriate remedy.

[72] Having determined that reinstatement is not appropriate I must consider what compensation, if any, is payable, in lieu of reinstatement.

[73] The Act provides for compensation as a remedy for unfair dismissal.

“392 Remedy—compensation

Compensation

(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

Criteria for deciding amounts

(2) In determining an amount for the purposes of an order under subs.(1), the FWC must take into account all the circumstances of the case including:

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

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

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

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

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

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

Misconduct reduces amount

(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subs.(1) by an appropriate amount on account of the misconduct.

Shock, distress etc. disregarded

(4) The amount ordered by the FWC to be paid to a person under subs.(1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.

Compensation cap

(5) The amount ordered by the FWC to be paid to a person under subs.(1) must not exceed the lesser of:

(a) the amount worked out under subs.(6); and

(b) half the amount of the high income threshold immediately before the dismissal.

Note: subs.392(5) indexed to $64,650 from 1 July 2013

(6) The amount is the total of the following amounts:

(a) the total amount of remuneration:

(i) received by the person; or

(ii) to which the person was entitled;

(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and

(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.

393 Monetary orders may be in instalments

To avoid doubt, an order by the FWC under subs.391(3) or 392(1) may permit the employer concerned to pay the amount required in instalments specified in the order.”

[74] In all of the circumstances, I consider that the award of some amount of compensation is appropriate in this matter.

[75] In determining the amount of compensation, I must have regard to “all the circumstances of the case” including each of the paragraphs in s.392(2) of the Act as set out above. No one matter is paramount but regard must still be had to each of them. 56

[76] The general approach to the calculation of compensation was well set out by the Full Bench in Tabro Meat Pty Ltd v Kevin Heffernan 57 and I will follow that approach in determining this matter.

Section 392(2)(c) - the remuneration that the person would have received or would have been likely to receive, if the person had not been dismissed.

[77] The Applicant’s weekly earnings were based on two days per week of six hours each (12 hours per week) at an hourly rate of $17.43 per hour. This means the Applicant’s weekly earnings at the time of dismissal were $209.16 gross per week or $10 876.32 per annum with superannuation of 9%. I will use this amount as the basis for calculating the amount of compensation to be awarded in this case.

[78] I have no submissions from the Respondent as to how long it was expected the employment relationship would have continued were it not for the dismissal taking place. However, it is clear on even the Applicant’s evidence that there had been some fracturing of the employment relationship linked to or perhaps driven by a fracturing of the family relationships between the Applicant and her various relations that were either employed by the Respondent or associated with the Respondent in some way, such as Mr Kovacevic. Despite this, the Applicant gave evidence that she expected to continue in the role she performed for the Respondent for “...many years”. 58

[79] I do not accept that it was likely that the employment relationship was to continue for many years as claimed by the Applicant. I think it is reasonable to assume that, but for the dismissal, that in all of the circumstances the employment relationship would have continued for a further period of 6 months.

[80] Accordingly, I calculate the remuneration that the Applicant would have received or would have been likely to receive, if her employment had not been terminated, at $5,438.16 plus 9% superannuation.

Section 392(2)(e) - the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation and s.392(2)(f) - the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation

[81] In the circumstances of this matter, subsections 392(2)(e) and 392(2)(f) can be dealt with together. The Applicant was unemployed from the date of her termination (22 August 2013) until 6 January 2014, a period of 19.5 weeks. Since 6 January 2014, the Applicant has been employed as a casual earning $26.43 per hour. ($21.15 per hour plus the 25% casual loading 59).

[82] In the first month of employment with her new employer the Applicant was employed for 43 hours in the first fortnight and 30 hours in the second fortnight, a total of 73 hours. The period from the commencement of the Applicant’s further employment is from 6 January to 22 February, a period of 47 days or approximately seven weeks. It is reasonable to assume that the Applicant continued to receive an average of the hours she was employed in the first four weeks (i.e. An average of 18.25 hours) for the following three weeks (i.e. 3 x 18.25 = 54.75 hours). Adding this to the 73 hours worked in the first four weeks yields a total of 127.75 hours. As the Applicant’s pay rate was $26.43 per hour for that period this means the relevant amount under s.392(2)(e) is $3,376.43.

[83] In Ellawalla v Australian Postal Corporation 60, with respect to a precursor provision, the Full Bench stated that “[o]nly monies earned during the period from termination until the end of the anticipated period of employment are deducted”.

[84] I think it is reasonable to assume that the Applicant will continue to earn from her recently secured position until the end of the anticipated period of employment which was approximately three weeks beyond the date of the hearing of this matter.

[85] A deduction is therefore appropriate of $3,376.43 representing the monies earned or likely to be earned during the period from termination until the end of the anticipated period of employment. This deduction results in an amount of $2,061.73 gross plus 9% superannuation ($5,438.16 less $3,376.43).

Section 392(2)(g) - any other matter that FWA considers relevant

[86] I note that the Applicant in her submissions complained of not receiving her full entitlements for leave and other entitlement matters. It may well be that given my findings as to the employment status of the Applicant that she has not received her full entitlements for leave. Further, I note there is considerable uncertainty surrounding her correct classification. For example the Applicants’ position in the disputed Attachment P is described as a PSA Level IV Age Care/cleaner. The work schedule document describes her as a cleaner Grade 2. However, it is clear on the evidence that the Applicant was nevertheless paid at the Level 1 rate in the Award throughout her period of employment. The Level 1 rate is an introductory rate. It seems unlikely that the Applicant was appropriately classified at this level after two years of employment and having achieved her Certificate III in Aged Care. However, I note that I do not have the jurisdiction to deal with claims for entitlements. To be clear this is not a matter on which I have formed a concluded view, nor is it a matter that I think is able to be considered in the awarding of compensation.

[87] Ordinarily a deduction for contingencies is appropriate. 61 However, contingencies only apply to the anticipated period of employment. As the period of anticipated employment extended for only three weeks beyond the date of the hearing, I do not think that a deduction for contingencies is warranted in this particular matter.

[88] There are no other matters that are relevant to the determination of compensation other than ss.392(2)(a),(b) and (d), 392(3) and 392(5) of the Act. I will turn to those factors now.

Section 392(2)(a) - the effect of the order on the viability of the employer’s enterprise

[89] Mr Weekes submitted that the effect of any order of compensation would be detrimental to the residents of the facility as he would have to increase their rent. 62 However, a mere submission that difficulties for the business will occur is not sufficient.63 Evidence should be produced in order for the Commission to properly consider this issue. As there is no such evidence, I do not accept the award for compensation to affect the viability of the Respondent.

Section 392(2)(b) - the length of the persons service with the employer

[90] The Applicant was employed by the Respondent from July 2011 to August 2013, a little over two years. I do not consider this length of service provides a basis for reducing the amount of compensation to be awarded.

Section 392(2)(d) - the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal

[91] Evidence was provided by the Applicant as to the efforts she went to in the period after the dismissal to secure alternative employment. Her evidence was that she personally attended nine Aged Care facilities within her area submitting resumes and seeking employment in the period after her dismissal. I am satisfied that the Applicant made reasonable efforts to mitigate the loss and there is no basis for a deduction for this reason.

Misconduct (s.392(3))

[92] I have found that the Applicant was not dismissed for a valid reason and that no misconduct was in evidence. Therefore there is no basis to make a further deduction for misconduct.

Compensation Cap (s.392(5))

[93] As the amount of $2,061.73 plus 9% superannuation is less than the legislative compensation cap and less than six months salary no further deduction for that reason is required.

Conclusion and order as to remedy

[94] I find that reinstatement is not an appropriate remedy in this case.

[95] I find that an order for compensation is appropriate.

[96] I am satisfied that an order for payment of compensation by the Respondent of $2,061.73 gross plus 9% superannuation less tax as required by law, to the Applicant in lieu of reinstatement is appropriate in all the circumstances of the case. It accords a fair go all round to both the Respondent and the Applicant.

[97] The compensation payment, less any required deduction in taxation, is to be made within 14 days of this decision. An order 64 will be issued concurrently with this decision.

COMMISSIONER

Appearances:

Applicant appeared on her own behalf.

T Weekes appeared on behalf of the Respondent.

Hearing details:

2014.

Melbourne:

February 10.

 1   Attachment J to Applicant’s witness statement.

 2   Transcript at PN269.

 3   Attachment I to Applicant’s witness statement.

 4   Transcript at PN138-142.

 5   Attachment I to Witness statement of Applicant.

 6   Burns v Aboriginal Legal Service of Western Australia (Inc) (unreported, AIRCFB, Williams SDP, Acton SDP, Gregor C, 21 November 2000) Print T3496 [24].

 7   Transcript at PN82.

 8   Transcript at PN288.

 9   MA000018.

 10   Attachment I to Applicant’s witness statement.

 11   Section 385(b) of the Act

 12   Page 1 of Applicant’s witness statement of and Transcript at PN 78

 13   Page 3 of Applicant’s witness statement.

 14   Paragraph 7 of Mr Weekes witness statement.

 15   Transcript at PN308 - 310.

 16   Transcript at PN78.

 17   Attachment F to Applicant’s witness statement.

 18   Attachment D to Applicant’s witness statement.

 19   Attachment P to Applicant’s witness statement.

 20   Mr Weekes submissions.

 21   Transcript at PN78.

 22   Transcript at PN184.

 23   Transcript at PN201.

 24   Page 1 of Mr Weekes witness statement.

 25   Transcript at PN184.

 26   Transcript at PN265.

 27   Attachment H to Applicant’s witness statement.

 28   Transcript at PN270.

 29   Transcript at PN125.

 30   Paragraph 8 of Mr Weekes witness statement.

 31   Page 1 of Mr Weekes witness statement.

 32   Page 1 of Mr Weekes witness statement.

 33   Transcript at PN279 - 292.

 34   Ms Warne’s witness statement.

 35   Transcript at PN401.

 36   Ms Warnes witness statement.

 37   Transcript at PN330.

 38   Transcript at PN430.

 39   Attachment P to Applicant’s witness statement.

 40   Edwards v Giudice (1999) 94 FCR 561.

 41   Transcript at PN175.

 42   Transcript at PN176.

 43   Transcript at PN175.

 44   Attachment I to Applicant’s witness statement.

 45   Attachment J to Applicant’s witness statement.

 46   Attachment P to Applicant’s witness statement.

 47   Transcript at PN287.

 48   Transcript at PN284.

 49   Edwards v Giudice (1999) 94 FCR 561 [6]‒[7].

 50   King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) Print S4213 [24].

 51   Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151 [70]‒[73].

 52   Chubb Security Australia Pty Ltd v Thomas (unreported, AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 2000) Print S2679 [41].

 53   Transcript at PN284.

 54   Transcript at PN451 - 452.

 55   Transcript at PN295.

 56   Tempo Services Limited v T.M. Klooger and Others, PR953337, [22]

 57   [2011] FWAFB 1080.

 58   Transcript at PN135.

 59   Transcript at PN146.

 60   Print S5109.

 61   Slifka v J W Sanders Pty Limited (1995) 67 IR 316 at 328.

 62   Transcript at PN297.

 63   K. Beames v BDRP Falconer Pty Ltd (unreported, AIRC, Hamilton DP, 28 March 2002) PR916075 [49].

 64   PR551175

Printed by authority of the Commonwealth Government Printer

<Price code C, PR549712>