Colleen Worthington v Esler Family Trust T/A Commodore Motor Inn
[2016] FWC 5740
•16 AUGUST 2016
| [2016] FWC 5740 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Colleen Worthington
v
Esler Family Trust T/A Commodore Motor Inn
(U2016/64)
COMMISSIONER HARPER-GREENWELL | MELBOURNE, 16 AUGUST 2016 |
Application for relief from unfair dismissal—small business—employment period—transferring employee—regular and systematic casual.
[1] On 6 January 2016, Mrs Colleen Worthington made an application to the Fair Work Commission (the Commission) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy in respect of her dismissal by the Esler Family Trust T/A Commodore Motor Inn (Esler Family Trust).
[2] Mrs Worthington was dismissed from her employment at the initiative of the employer on 29 December 2015.
Background and case outline
[3] Mrs Worthington commenced employment with the Commodore Motor Inn on 14 February 2006 as a receptionist working three permanent shifts each week on Tuesdays, Wednesdays and Thursdays from 7am to 3pm. Mrs Worthington submits her hours were guaranteed and she was a regular and systematic casual.
[4] The Esler Family Trust purchased the Commodore Motor Inn and Mr Leigh Esler commenced managing and operating the business on 20 November 2015.
[5] Mr Esler submits Mrs Worthington was employed on a casual basis from 20 November 2015 until she was dismissed on 29 December 2015 and consequently, he was not required to provide Mrs Worthington with prior notice of the dismissal.
[6] It is not in contention the Esler Family Trust is a small business within the definition of s.23 of the Act.
[7] It is also not in contention that there was a transfer of business from the previous owners to the Esler Family Trust.
[8] The questions to be determined in this matter are:
● Was Mrs Worthington a transferring employee in relation to a transfer of business?
● Was her employment as a casual regular and systematic? And if so, does her previous service count towards the 12-month qualifying period in order for Mrs Worthington to be a person protected from unfair dismissal?
● If Mrs Worthington was a person protected from unfair dismissal, was her dismissal harsh, unjust and unreasonable?
Procedural Background
[9] This matter was listed for conciliation on 23 February 2016. Mrs Worthington wrote to the Commission requesting the matter be listed for a different time and date as she had recently commenced employment with a new employer. The conciliation conference proceeded and Mrs Worthington did not attend.
[10] The matter was relisted for conciliation on 14 March 2016. The conciliation conference proceeded and Mr Esler did not attend. The matter was then listed for hearing on 25 May 2016.
[11] Directions were issued requiring Mrs Worthington to file submissions and any witness statements and other materials she wished to rely on in support of her application by 18 April 2016. Mr Esler was required to file the same by 9 May 2016.
[12] Mr Esler did not file a Form F3 Employer Response, nor did he file submissions in compliance with the directions. On 16 May 2016, a directions hearing was held at which time Mr Esler advised the Commission he did not intend on filing any materials. Further directions were issued requiring Mr Esler to file his submissions in response to the application by 19 May 2016.
[13] On 19 May 2016 Mr Esler filed the following statement for the Esler Family Trust:
“… The Esler Family Trust purchased the Commodore Motel on the 20th November 2015. Colleen Worthington was a previous employee. We informed two casual staff in the weeks leading up to Christmas 2015 one being Colleen Worthington, that we could only continue to employ one staff member. And that the hours and days of work would change from what they were currently working.
Colleen Worthington was employed by the Esler Family Trust on a casual basis from the 20th November 2015 till her termination date on the 29th December 2015.
Colleen was given immediate dismissal and paid up until her time of departure. As Colleen was employed on a casual basis the Esler Family Trust felt it was in coherence to Fairwork Australia’s policies.”
[14] A hearing was held before me on 25 May 2016 and Mrs Worthington attended and gave evidence on her own behalf. Mr Esler was not in attendance at the commencement of the hearing. The hearing was adjourned whilst my Associate contacted Mr Esler to ascertain if it was his intention to attend the hearing. Mr Esler responded and later appeared for and gave evidence on behalf of the Esler Family Trust. However, it would be fair to say Mr Esler was disinclined to participate in the process.
Relevant Legislative provisions
[15] Section 382 of the Act sets out the circumstances that must exist for Mrs Worthington to be protected from unfair dismissal:
“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.”
[16] Section 384 of the Act provides as follows:
“384 Period of employment
(1) An employee’s period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee.
(2) However:
(a) a period of service as a casual employee does not count towards the employee’s period of employment unless:
(i) the employment as a casual employee was on a regular and systematic basis; and
(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis; and
(b) if:
(i) the employee is a transferring employee in relation to a transfer of business from an old employer to a new employer; and
(ii) the old employer and the new employer are not associated entities when the employee becomes employed by the new employer; and
(iii) the new employer informed the employee in writing before the new employment started that a period of service with the old employer would not be recognised;
the period of service with the old employer does not count towards the employee’s period of employment with the new employer.”
[17] Section 23 of the Act then provides the following definition of a small business employer:
“(1) A national system employer is a small business employer at a particular time if the employer employs fewer than 15 employees at that time.
(2) For the purpose of calculating the number of employees employed by the employer at a particular time:
(a) subject to paragraph (b), all employees employed by the employer at that time are to be counted; and
(b) a casual employee is not to be counted unless, at that time, he or she has been employed by the employer on a regular and systematic basis.
(3) For the purpose of calculating the number of employees employed by the employer at a particular time, associated entities are taken to be one entity.
(4) To avoid doubt, in determining whether a national system employer is a small business employer at a particular time in relation to the dismissal of an employee, or termination of an employee’s employment, the employees that are to be counted include (subject to paragraph (2)(b)):
(a) the employee who is being dismissed or whose employment is being terminated; and
(b) any other employee of the employer who is also being dismissed or whose employment is also being terminated.”
[18] To determine whether Ms Worthington is a transferring employee, the Commission is to consider the following:
“311 When does a transfer of business occur
Meanings of transfer of business, old employer, new employer and transferring work
(1) There is a transfer of business from an employer (the old employer) to another employer (the new employer) if the following requirements are satisfied:
(a) the employment of an employee of the old employer has terminated;
(b) within 3 months after the termination, the employee becomes employed by the new employer;
(c) the work (the transferring work) the employee performs for the new employer is the same, or substantially the same, as the work the employee performed for the old employer;
(d) there is a connection between the old employer and the new employer as described in any of subsections (3) to (6).
Meaning of transferring employee
(2) An employee in relation to whom the requirements in paragraphs (1)(a), (b) and (c) are satisfied is a transferring employee in relation to the transfer of business.
Transfer of assets from old employer to new employer
(3) There is a connection between the old employer and the new employer if, in accordance with an arrangement between:
(a) the old employer or an associated entity of the old employer; and
(b) the new employer or an associated entity of the new employer;
the new employer, or the associated entity of the new employer, owns or has the beneficial use of some or all of the assets (whether tangible or intangible):
(c) that the old employer, or the associated entity of the old employer, owned or had the beneficial use of; and
(d) that relate to, or are used in connection with, the transferring work.”
[19] To determine whether Mrs Worthington is able to make an application for an unfair dismissal remedy, ss.382(a) and (b) of the Act must be satisfied. It is not in contention Mrs Worthington’s employment was covered by a modern award at the time of her dismissal. The issues in contention are:
● whether Mrs Worthington was a transferring employee in relation to a transfer of business between the old and the new employer under section 384 (2)(b)(i);
● has Mrs Worthington completed the requisite minimum period of employment with the Esler Family Trust under s.382(a); and
● whether Mrs Worthington was employed on a regular and systematic basis and therefore a person protected from unfair dismissal.
Case Presented and Consideration
Protection from Unfair Dismissal - Regular Systematic Casual
[20] Mrs Worthington’s submission was she had been employed to work the same shifts each week on a regular and systematic basis since 2006, and neither her shifts nor hours of work changed when Mr Esler took over the management and operation of the Commodore Motor Inn. 1 Mrs Worthington submits Mr Esler had agreed to continue her employment after the transfer of business took place and she continued to be engaged on a regular and systematic basis.
[21] Mrs Worthington also submits she is a transferring employee as she was not provided with notice to the contrary and consequently, her length of service with her previous employer counts.
[22] Mrs Worthington asserts Mr Esler was aware of her rostered days and hours prior to the Esler Family Trust commencing to operate the Commodore Motor Inn. Mrs Worthington says she met with Mr Esler at least a month before the business handover and was advised she would continue in her role and there was no intention to make any changes to the existing employment arrangements. 2
[23] However, Mr Esler made submissions to the effect he did not know what hours Mrs Worthington worked prior to 20 November 2015 until she started working for him and he could not recall the meeting Mrs Worthington had referred to in paragraph [22] above. 3
[24] Mr Esler’s oral evidence, when asked if he recalled the meeting, was vague and inconsistent. He responded stating “Yes, I don’t remember that either. I’m not sure”. 4
[25] Mr Esler also stated in oral evidence he was told the hours Mrs Worthington had been working the week before he started running the business. 5 Mr Esler at a later stage stated the following:
“… Like I said, we had a conversation about it, but I’m sure it was only a week or two out, so, not four weeks.” 6
[26] Mr Esler’s oral evidence was that he had been going to the business for approximately six months prior to taking over the operation of the business. Further, it was not the first time Mr Esler had purchased and sold businesses. I find it difficult to reconcile that Mr Esler would not have been aware of the staffing arrangements of a small business he was about to purchase.
[27] Mr Esler’s oral evidence was that he had agreed to “take on” the existing employees. 7 Mr Esler submits once the employees finished with the previous owner, they commenced employment with the Esler Family Trust. By agreement, Mr Esler continued Mrs Worthington’s employment in the same role working the same days and hours she had previously been engaged in.
[28] I am satisfied that Mr Esler became aware of Mrs Worthington’s rostered days and hours prior to 20 November 2015 and by agreement, Mrs Worthington continued to work the same days and hours under Mr Esler’s management and operation as she had for the previous owners.
[29] Mrs Worthington submits Mr Esler advised he would be retaining her as an employee and that he saw no reason to be making any changes to the staffing arrangements.
Mr Esler concedes he did agree to continue Mrs Worthington’s employment on the same terms and conditions she had previously been engaged however due to wages being too high, he reviewed this decision in mid-December 2015. 8
[30] Mr Esler’s evidence was he did not provide any notification to Mrs Worthington either verbally or in writing that her previous period of employment with the Commodore Motor Inn would not be recognised for any employment related purposes.
[31] In Commissioner Roe’s decision in Ponce v DJT Staff Management Services Pty Ltd9 (Ponce), Roe C undertook an analysis of regular and systematic employment and concluded the following:
“[66] It is the employment which must be on a regular and systematic basis. This does not mean that the hours or days of work must be regular and systematic. Although the previous legislation referred to the period or periods of casual engagement rather than the period of casual employment I do not think that this change is of much practical significance. The previous authorities have also established that employment or engagement can be regular and systematic even if it is seasonal, or where the times and dates of work are quite irregular or are not rostered, or where there are breaks due to school holidays or other needs of the employee. In Summerton v Jabiru Golf, the hours worked varied from 3 to 39 in a week but it did not stop SDP Duncan finding that the employment was regular and systematic. It is clear that to establish ‘regular and systematic’ there must be sufficient evidence to establish that a continuing relationship between the employer and the employee has been established. This is clearly a reason why there is a legislative requirement for a reasonable expectation of continuing employment.
[67] In my view, full-time and part-time work must be regarded as meeting the definition of regular and systematic. This is one reason why regular and systematic casual work meets the jurisdictional hurdle and why it is distinguished from irregular, occasional or non-systematic casual work for the purposes of a range of entitlements under the Act and Awards as discussed above. Legislators have deemed it fair to give regular and systematic casuals the same entitlements as other workers because they are engaged regularly and systematically, like full and part-time employees (in respect to matters such as parental leave and unfair dismissal jurisdiction).” (endnotes not reproduced)
[32] Vice President Lawler in his decision of Burke v Marist Brothers St Joseph’s College,10 whilst adopting the approach of Roe C in Ponce, provides the following note of caution:
“one must not treat the summary of Roe C as a substitute for the language of the statute: the ultimate question always remains whether the employment was ‘regular and systematic’ within the meaning of section 384(2)(a) and care must be taken not to invert the test to one which asks the question whether the employment was ‘occasional or irregular’.” (emphasis added)
[33] I have adopted the approach of Roe C in Ponce, in that to determine if a casual is a regular and systematic casual, there must be sufficient evidence to establish that a continuing relationship between the employer and the employee has been established. It is the employment which must be on a regular and systematic basis. This does not mean that the hours or days of work must be regular and systematic.
[34] Mr Esler concedes Mrs Worthington was engaged to work regular days and hours by the previous employer since 2006. It was Mr Esler’s evidence he had agreed to continue Mrs Worthington’s employment with the Esler Family Trust on those same days and hours without giving consideration to whether or not Mrs Worthington was engaged on a regular and systematic basis. I am satisfied Mrs Worthington’s employment as a casual was on a regular and systematic basis. Mr Esler continued to engage Mrs Worthington in the same role, days and hours for the period when he commenced his management and operation of the Commodore Motor Inn to the date of her dismissal. Further, Mr Esler advised Mrs Worthington he saw no reason to be making changes to staffing arrangements. I am therefore satisfied Mrs Worthington had a reasonable expectation of continuing employment with the Esler Family Trust.
Transferring Employee
[35] In respect of the issue of transferring employee, the Act specifies that a period of service with the old employer will not be counted towards the employee’s period of employment with the new employer if the factors set out in ss.384(2)(b)(i)-(iii) are met. There were no submissions or evidence advanced to suggest the relevant companies were associated entities.
[36] Mr Esler’s oral evidence was he did not inform Mrs Worthington either in writing or orally that her previous service with the Commodore Motor Inn would not be recognised because he believed she was a casual employee. Mr Esler’s oral submission was he had agreed to take on the previous employees once the business had transferred to the Esler Family Trust. Mr Esler submits the employees continued on in their employment under the new ownership.
[37] For the purpose of determining whether Mrs Worthington is a transferring employee in relation to a transfer of business, the Commission must have regard to the factors that are outlined in ss.311(1)(a)-(d) of the Act. I will now deal with those factors in turn.
[38] It is not in contention that at the time Mrs Worthington’s employment ceased with her previous employer, she commenced employment with the Esler Family Trust, in the same role she had previously occupied, performing the same duties. I am therefore satisfied that the requirements under ss.311 (1)(a)-(c) of the Act have been met.
[39] In considering the final factor under s.311(1)(d) of the Act and whether there was a connection between the old employer and the new employer as described in any of subsections (3) to (6), it is not in contention that the whole of the business including assets, equipment and employees transferred to the Esler Family Trust. I am therefore satisfied ss.311(d) has been met.
[40] Given my findings above, I am satisfied Mrs Worthington is a transferring employee in relation to the transfer of business to the Esler Family Trust. I am satisfied that Mrs Worthington’s prior service with the Commodore Motor Inn can be counted towards her employment with the Esler Family Trust. The total period of employment therefore exceeds the requisite minimum employment period and accordingly, Mrs Worthington is protected from unfair dismissal.
[41] Section 396 of the Act requires me to decide four specified matters before the merits of the application may be considered.
s.396(a) Whether the application was made within the period required in sections 394(2)
[42] Mrs Worthington’s employment was terminated on 29 December 2015 and her unfair dismissal application was received by the Commission on 6 January 2016. As such, I am satisfied that Mrs Worthington made her application within the required 21 day period in s.394(2) of the Act.
s.396(b) Whether the person was protected from unfair dismissal
[43] As outlined in paragraph [41] above, I am satisfied Mrs Worthington was protected from unfair dismissal.
s.396(c) Whether the dismissal was consistent with the Small Business Fair Dismissal Code
[44] As the termination of Mrs Worthington’s employment was not a summary dismissal, the following section of the code is applicable:
“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.”
[45] Mrs Worthington’s dismissal was not by reason of conduct or capacity to do the job. It is not in contention Mrs Worthington was advised on the day she was dismissed that her employment was no longer required. Mrs Worthington had not received any prior warning that she was to be dismissed.
[46] Mr Esler’s written submission was Mrs Worthington was a casual employee and was dismissed without notice.
[47] It is not in contention Mr Esler approached Mrs Worthington on the day she was dismissed and advised her it would be cheaper to employ one full-time receptionist to work Sunday to Thursday from noon to 8pm. Mrs Worthington told Mr Esler she had an adult son with a disability who requires her care and she would not be able to work those days and hours however she was able to work Monday to Friday 7am to 3pm. Mr Esler then requested Mrs Worthington hand back her key and asked her to leave immediately because she no longer had a job. Mr Esler then produced a letter to that effect.
[48] Mr Esler’s oral evidence was he made the decision in December 2015 to reduce reception staff due to the cost of wages being too high. Mr Esler submits he advised staff in December he was intending to move from employing two casual staff members to one full-time member. However, Mrs Worthington was unable to satisfy the hours he required her to work as a full-time employee so he chose to dismiss her.
[49] Mr Esler’s oral evidence was he went on the Fair Work’s website to obtain information prior to dismissing Mrs Worthington however he did not read the small business fair dismissal code or any information pertaining to regular and systematic casuals.
[50] There were no submissions made to the effect that Mrs Worthington’s employment was at risk due to performance or conduct, therefore there were no warnings issued or performance discussions. Mr Esler’s submission was Mrs Worthington was being dismissed because the cost of wages was too high and she was advised she was being dismissed after the decision had already been made. Mrs Worthington’s dismissal was not for reasons based on her conduct or capacity to do the job. I am therefore satisfied that Mr Esler did not advise Mrs Worthington that her job was at risk. I am not satisfied the reason for the dismissal, being that the wages were too high, was a valid reason for dismissing Mrs Worthington.
s.396(d) Whether the dismissal was a case of genuine redundancy
[51] Mr Esler’s evidence was that he did not reduce reception staff numbers. Mr Esler’s oral evidence was his mother has taken up the role of receptionist and he has since employed another receptionist.
[52] Mrs Worthington’s dismissal was a cost cutting exercise and not a case of genuine redundancy.
[53] I will now consider if the dismissal of Mrs Worthington by the Esler Family Trust was unfair within the meaning of the Act.
Was the dismissal unfair?
[54] A dismissal is unfair if I am satisfied, on the evidence before me, that all of the circumstances set out at s.385 of the Act existed. Section 385 provides the following:
“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.”
Was the applicant dismissed?
[55] A person has been unfairly dismissed if the termination of their employment comes within the definition of “dismissed” for the purpose of Part 3-2 of the Act. Section 386 of the Act provides:
“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.
…”
[56] As outlined above, on 29 December 2015, the Esler Family Trust terminated Mrs Worthington’s employment (s.385(a) of the Act).
[57] In relation to ss.385(c) and (d) of the Act, I reiterate my findings at paragraphs [51] and [53] above.
Harsh, Unjust Unreasonable
[58] Having been satisfied of each of the matters prescribed by s.385(a), (c) and (d) of the Act, and being satisfied the dismissal was not in accordance with the small business fair dismissal code, I must now consider whether Mrs Worthington’s dismissal was harsh, unjust or unreasonable.
[59] Section 387 of the Act sets out the criteria for considering whether a dismissal was harsh, unjust or unreasonable:
“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.”
[60] I will now consider each of the matters set out in s.387 of the Act.
Was there a Valid Reason for the dismissal- s.387(a)
[61] Mr Esler’s decision to dismiss Mrs Worthington was to cut wage costs. For the reasons outlined above I am not satisfied that this was a valid reason for the dismissal of Mrs Worthington.
Notification of the Valid Reason –s.387(b)
[62] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account whether the person was notified of the reason. 11 Procedural fairness requires that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment.12 The notification of the valid reason must be in explicit, plain and clear terms.13
[63] For the reasons discussed earlier, I am satisfied that Mrs Worthington was told she was being dismissed due to the financial needs of the business, as it was going to be cheaper to have one full-time receptionist instead of two receptionists working part-time hours. Mr Esler provided Mrs Worthington with those reasons at the time she was notified she was being dismissed. I am satisfied the decision to terminate Mrs Worthington’s employment was made prior to Mrs Worthington being notified of her termination. Therefore, Mrs Worthington’s dismissal was procedurally unfair.
Opportunity to Respond –s.387(c)
[64] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person. 14 An employee must be notified of the reason for termination and must also be given an opportunity to respond to that reason before the decision to terminate is made.15 This process does not require any formality and is to be applied in a common sense way to ensure the employee has been treated fairly.16 Where an employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements of this section.17
[65] Mrs Worthington was notified she was being dismissed and handed a letter in that same meeting, she was subsequently requested to leave immediately as her services were no longer required. Mr Esler had by his own admission handed Mrs Worthington a prepared letter advising her she had been dismissed. I am satisfied that Mrs Worthington was not provided with the opportunity to respond to the reasons for the dismissal.
Unreasonable Refusal of a Support Person – s.387(d)
[66] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal. 18 With respect to this consideration, the Explanatory Memorandum states:
“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them. 19
[67] Mrs Worthington’s dismissal took immediate effect with no prior warnings. The circumstances in which the dismissal took place denied Mrs Worthington the opportunity to request or have a support person to be present.
Warnings regarding Unsatisfactory Performance – s.387(e)
[68] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, if the dismissal related to unsatisfactory performance by the person, the Commission must take into account whether the person had been warned about that unsatisfactory performance before the dismissal. 20 Unsatisfactory performance is more likely to relate to the employee’s capacity to do the job, than their conduct.21 The Commission must take into account whether there was a period of time between an employee being warned about unsatisfactory performance, and a subsequent dismissal. This period of time gives the employee the opportunity to understand their employment is at risk and to try and improve their performance.22
[69] As outlined earlier I do not consider the matter to involve unsatisfactory performance. Rather, the termination was on account of Mr Esler’s decision to reduce wage costs to the business.
Impact of the Size of the Respondent on Procedures Followed and Absence of dedicated human resources management specialist/expertise on procedures followed – s.387(f)-(g)
[70] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal. 23 Further, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account 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.24
[71] I am satisfied that the size of the business and the absence of human resource expertise affected the procedures followed by Mr Esler in dismissing Mrs Worthington from her employment. Mr Esler relied heavily on the belief Mrs Worthington was a casual employee and in making his decision to dismiss Mrs Worthington, he relied on information to that effect.
Other Relevant Matters – s.387(h)
[72] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account any other matters that the Commission considers relevant. 25
[73] There were no submissions to this effect and I am satisfied there are no other relevant matters to be considered.
Finding
[74] As a small business owner operator, Mr Esler’s lack of expertise in human resources is not sufficient to outweigh the lack of a valid reason in this matter. I have considered this together with the other matters dealt with in s.387 of the Act, and in all the circumstances I am satisfied that the dismissal was unfair in that it was harsh, unjust or unreasonable.
Remedy
[75] Mrs Worthington gave evidence that she obtained employment with a new employer on 25 January 2016 and for this reason is not seeking reinstatement.
[76] Mr Esler declined to make any submissions in relation to or in response to Mrs Worthington’s submission on remedy.
[77] Based on the evidence and submissions provided in the proceedings, I am unable to come to a concluded view about what remedy is appropriate. Both parties are accordingly directed to provide further written submissions dealing with these considerations. Directions on the filing of submissions dealing with remedy will be issued to the parties following this decision.
COMMISSIONER
Appearances:
C Worthington on her own behalf
L Esler for the Esler Family Trust T/A Commodore Motor Inn
Hearing details:
2016.
Wodonga:
May 25.
1 Transcript PN40-47.
2 Exhibit A1.
3 Transcript PN100.
4 Transcript PN149.
5 Transcript PN101.
6 Transcript PN148.
7 Transcript PN92.
8 Transcript PN107 to PN108.
9 [2010] FWA 2078.
10 [2015] FWC 7324.
11 Fair Work Act 2009 (Cth) s.387(b).
12 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151: Gooch v Proware Pty Ltd T/A TSM (The Service Manager)[2012] FWA 10626.
13 Previsic v Australian Quarantine Inspection Services (unreported, AIRC, Holmes C, 6 October 1998) Print Q3730.
14 Fair Work Act 2009 (Cth) s.387(c).
15 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
16 Royal Melbourne Institute of Technology v Asher (2010) 194 IR 1, 14 citing Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7 (Wilcox CJ).
17 Royal Melbourne Institute of Technology v Asher (2010) 194 IR 1, 14-15 citing Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7 (Wilcox CJ).
18 Fair Work Act 2009 (Cth) s.387(d).
19 Explanatory Memorandum, Fair Work Bill 2009 (Cth) [1542].
20 Fair Work Act 2009 (Cth) s.387(e).
21 Annetta v Ansett Australia Ltd (2000) 98 IR 233, 237.
22 Johnston v Woodpile Investments Pty Ltd T/A Hog’s Breath Café – Mindarie[2012] FWA 2 [58].
23 Fair Work Act 2009 (Cth) s.387(f).
24 Fair Work Act 2009 (Cth) s.387(g).
25 Fair Work Act (Cth) s.387(h).
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