Dorian Hanaor v Mercury Colleges Pty Ltd T/A Mercury Colleges
[2010] FWA 4512
•30 JUNE 2010
Note: An appeal pursuant to s.604 (C2010/4251) was lodged against this decision - refer to Full Bench decision dated 23 September 2010 [[2010] FWAFB 6705] for result of appeal.
[2010] FWA 4512 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Dorian Hanaor
v
Mercury Colleges Pty Ltd T/A Mercury Colleges
(U2009/14786)
COMMISSIONER RAFFAELLI | SYDNEY, 30 JUNE 2010 |
Application for unfair dismissal remedy.
[1] On 18 December 2009 Mr Dorian Hanaor (the Applicant) made application for unfair dismissal remedy.
[2] On 19 January 2010, Mercury Colleges Pty Ltd T/A Mercury Colleges (the Respondent) replied and indicated that in its view, the Applicant’s employment had not been terminated. Rather, his engagements as a casual teacher had merely been reduced partly by the Applicant’s own inability to commit to revised work arrangements of the Respondent.
[3] On 6 May 2010 I conducted proceedings which included conciliation concerning the termination and whether it had in fact been the result of action by the Respondent. At the conclusion of proceedings I determined that the Applicant had been terminated at the initiative of the Respondent (a decision to that effect was issued on 7 May 2010 (2010 FWA 3637 [PR996900]).
[4] By agreement, a program of written submission going to the merits of the Applicant’s claim was determined. Those submissions were provided and the latest received on 10 June 2010.
[5] Section 385 of the Fair Work Act 2009 (the Act) defines unfair dismissal as:
“A person has been unfairly dismissed if FWA 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.”
[6] I have already determined that section 385(a) is satisfied. Sections 385(c) and (d) do not apply, in that the code is not applicable here and there has been no redundancy.
[7] The only live question is whether the termination of the Applicant was harsh unjust or unreasonable. In that regard section 387 if the Act provides:
“In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA 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 FWA considers relevant.”
[8] In submissions, Mr Bailey of the NSW/ACT Independent Education Union which represented the Applicant, addressed the relevant criteria.
[9] It was put on behalf of the Applicant, that the Respondent’s alleged basis for termination of the Applicant was the Applicant’s inability to commit to a new six week block system of teaching periods. In fact such system was, on the evidence at the jurisdiction hearing, shown to be unrelated to the system of engagement of teachers.
[10] Rather, the real reason for the Applicant’s termination was because of an acrimonious conversation which he had held on 11 December 2009 with Mr Andrew Waters. In that conversation, Mr Waters informed the Applicant that in the forthcoming year his engagement would only be on a relief basis.
[11] There was no communication with the Applicant as to the reasons for his termination, nor was there any opportunity afforded to him to answer the Respondent’s concerns.
[12] The submissions of Mr Waters, on behalf of the Respondent, focussed on the introduction of the six-week teaching programme in 2010. It had made clear to the casual teachers that there would be an expectation that they would teach for six weeks at a time. While minor absences would be accepted, lengthy breaks (including overseas holidays) would result in the loss of regular classes. Such teachers would only be utilised as the need arose.
[13] The Applicant had already taken five weeks off between October and December 2009 and planned to be away in February 2010. This was contrary to the consistency of commitment now necessary for the Respondent. It was as a consequence of this that he had sent an email to the Applicant indicating that until he could better commit he would be utilised as a relief teacher.
[14] The submissions implicitly denied any spiteful reasons for the termination arising out of the discussions on 11 December 2010. It was put that the Respondent has taken steps to assist other teachers who were made relief teachers to maximise their employment opportunities. If the Applicant had been more reasonable, further opportunities would have been made available to him.
[15] Mr Waters put that the needs of the Respondent had to take precedence over the personal wishes of teachers, particularly casual employees. The Applicant was to be away in February 2010 and again from May until August 2010. The Applicant’s availability was not consistent with the Respondent’s operational needs.
Determination
[16] I accept that the Respondent had a right to run its college as it saw fit. This includes introducing the six week block system and a desire to ensure that its teachers commit to such entire periods.
[17] It seems that the Applicant was unable to guarantee his attendance in the February 2010 period.
[18] If that was the extent of the Applicant’s inability, the decision to terminate the employment was probably unreasonable and would not provide a valid reason for termination. If however, the Applicant’s inability to commit to block periods of teaching was to be an ongoing problem, the Respondent would have had a valid reason for termination.
[19] On the basis of the evidence from the jurisdiction hearing and the subsequent submissions, it is difficult to be certain as to the Applicant’s ongoing availability for teaching after February 2010.
[20] However, I propose to tentatively accept the possibility of a valid reason based on past periods of unavailability of the Applicant and no clear indication that he would accept (and fit in with) Mr Waters’s planned six-week course.
[21] As to whether the Applicant was informed of the reason for his termination, I do not discount that he may have thought that the acrimonious discussion of 11 December 2010 was a reason for termination. However, it must have been clear also to the Applicant that the genesis of the disagreement was Mr Waters’s desire to have, from 2010, a system of greater commitment by teachers to the six week programme. The Applicant would have understood that he was being terminated because Mr Waters perceived him to be less committed to such arrangements.
[22] The evidence of the Applicant himself (Exhibit H1) makes it clear that the basis of Mr Waters’s concerns was the need for teachers to be available.
[23] I find that the Applicant was made aware of the reason for his termination.
[24] As to whether the Applicant was given an opportunity to respond to the Respondent’s desire for a consistent commitment in the 2010 teaching program, I note that Mr Waters said that the Applicant’s emotional state inhibited any further talks with him. This is unconvincing. Whatever happened on 11 December 2009 between Mr Waters and the Applicant, the Applicant had been able to complete his teaching that evening. The Respondent took precipitous action in cancelling work for the rest of the week (Exhibit H3). The Respondent made it clear that it would be in touch in January 2010. Such action prevented any further engagement between the Respondent and the Applicant.
[25] True it is, that at times the failure to consult may not result in any change to a decision. In this case however, I consider that a real opportunity was missed. A chance for the Applicant to respond to the 13 December 2010 SMS would have enabled Mr Waters to better explain the decision as to the 2010 course program and the impact on casual teachers. It would also have enabled the Applicant to respond, including as to any ability to accommodate such new system after February 2010. It may have led to acceptable arrangements all round.
[26] I find no opportunity was afforded to the Applicant to respond, and this was a matter of consequence.
[27] I have considered those matters set out in section 387(d), (e), (f), (g) and (h) and consider that they are either not relevant to the case at hand or are of minor effect.
[28] Overall, even if I assume there was a valid reason for termination, I consider the failure to give the Applicant an opportunity to respond to the Respondent’s concerns makes the termination unreasonable.
[29] Having so found and given what I have said before I am satisfied that, pursuant to section 385 the Applicant was unfairly dismissed.
[30] Section 390 provides that Fair Work Australia may order an Applicant’s reinstatement or the payment of compensation. It reads:
“390 When FWA may order remedy for unfair dismissal
(1) Subject to subsection (3), FWA may order a person’s reinstatement or the payment of compensation to a person, if:
(a) FWA 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) FWA may make the order only if the person has made an application under section 394.
(3) FWA must not order the payment of compensation to the person unless:
(a) FWA is satisfied that reinstatement of the person is inappropriate; and
(b) FWA considers an order for payment of compensation is appropriate in all the circumstances of the case.”
[31] In this case, I am satisfied of the necessary pre-conditions set out in section 390(1) and (2).
[32] I have had to consider whether or not in the circumstances the Applicant ought to be reinstated. I note that the Applicant does not seek reinstatement, largely on the basis of strained relations with Mr Waters.
[33] I am satisfied that reinstatement of the Applicant is not appropriate given the strained relationship and my concern that the Respondent’s demands and the Applicant’s availability are yet to be reconciled.
[34] Pursuant to section 390(3)(b), I consider that it is appropriate to make an order for the payment of compensation in lieu of reinstatement.
[35] In determining the amount of compensation section 392(2) provides criteria for deciding the amount. It provides:
“(2) In determining an amount for the purposes of an order under subsection (1), FWA 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 FWA considers relevant.”
[36] In considering the matters above, I have considered the submissions where relevant.
[37] There is no evidence as to the effect of any order as to compensation on the viability of the Respondent.
[38] The Applicant’s employment commenced in July 2007. It is not an insignificant period.
[39] The Applicant has taken action to instigate his loss. He worked for a time with the Australian Catholic University earning a total of $1,462.40.
[40] I am unable to dispute the submission that he has continued to seek other work. I am unable to determine what amounts he may have earned if he had found other employment.
[41] As to the consideration of the remuneration which the Applicant would have been likely to have received from the Respondent but for his termination, it may have been that the Applicant might have satisfied the demands of the Respondent and worked on for many months.
[42] On the other hand, he might have left at the end of 2009. If this had occurred he would at least have worked and been paid for the week commencing 14 December 2009. Or, he might have returned as a casual relief teacher.
[43] I have given some weight to the Applicant’s desire to pursue his doctorate and the bona fide indication of Mr Waters to provide the Applicant with relief work as it becomes available.
[44] In the end, I have decided that it is more likely than other outcomes, that the Applicant would have worked in the week commencing 14 December 2009 and resumed in 2010 as a relief teacher.
[45] There is no scientific approach to these assessments. I have assessed that in addition to the week’s pay that he would have earned in the week of 14 December 2009, he would have been given another 20 days of work in 2010.
[46] There is no other matter I consider of relevance.
[47] Balancing all the circumstances, I determine that the Respondent pay to the Applicant five weeks pay at 25 hours per week. The hourly rate of pay was said by Mr Bailey correctly to be $43.25 per hour. This would amount to $5,406.25.
[48] Because the Respondent has not conceded the suggested hourly rate, I await its further advice prior to issuing any order.
[49] Unless I hear to the contrary I will issue the order seven days from the issuing of this decision.
COMMISSIONER
Appearances:
I. Bailey for the Applicant.
A. Waters for the Respondent.
Hearing details:
2010
Sydney:
May 6.
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