Ellie Wood v Gunbalanya Sports and Social Club

[2017] FWC 6806

[2017] FWC 6806

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ellie Wood
v
Gunbalanya Sports and Social Club
(U2017/9023)

COMMISSIONER BISSETT MELBOURNE, 22 DECEMBER 2017

Application for an unfair dismissal remedy - no valid reason for dismissal - dismissal harsh unjust or unreasonable - remedy considered.

[1] Ms Ellie Wood (Applicant) was employed by the Gunbalanya Sport and Social Club Inc (Respondent) from April 2015 until her employment was terminated on or around 3 August 2017. The Applicant has applied for relief from unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[2] The Applicant and her partner (Rodney Shannon) – who also worked for the Respondent – took extended leave from 10 May 2017 with a return to work date of 9 or 10 September 2017. The Applicant says that her leave had been approved by Mr Alex Siebert, the relevant manager for the Respondent, some time prior to proceeding on leave. Further, she says that she did not fill in a leave form as there was no such system. Instead, her leave period was written on the whiteboard in the office along with leave being taken by other employees. She said that this was how leave was notified.

[3] The Applicant agrees that not all of her leave was paid leave but says this was because she needed to take some otherwise unplanned paid leave in 2016 when her grandfather died.

[4] Mr Shannon said that when he and the Applicant commenced working for the Respondent they advised that they would not be taking any leave for some time as they intended to have an extended break in 2017. He said this was approved around that time. He said that when they went on their extended leave they asked that some of their annual leave pay be held back so that they had some money when they returned and prior to the first regular pay day after returning to work.

[5] On return from annual leave the Applicant was advised that her position had been filled. She was told by Mr Syd Laker, the Social Club Manager, that prior to going on leave her partner, Mr Shannon, had made it clear that she would not be returning to work. Mr Laker further told the Applicant she had not contradicted Mr Shannon when he said this. For this reason, Mr Laker understood that she had resigned her employment. Alternatively it was suggested she had abandoned her employment.

[6] The Applicant stated that matters associated with her employment and whether she intended to return to employment had not been discussed with her. She also said she had never given her partner any authority to speak on her behalf in relation to her on-going employment. The Applicant agreed that whilst she was overseas her partner made a phone call to the Respondent in which he spoke on her behalf and that he sent an email which was also sent on her behalf. She said that this did not change the fact that she did not authorise her partner to resign from her employment on her behalf and no-one asked her about this. She stated that she did not either verbally or in writing resign her employment.

[7] The Applicant stated she did not abandon her employment. Her period of absence was covered by approved leave and she returned on the date previously notified by her. In any event, if there had been any concern as to her whereabouts and if she had, indeed, abandoned her employment, the Respondent had contact details for her (phone and email). However the Respondent did not seek to contact her to determine the reason for her absence or if she was returning to work.

[8] Mr Alex Siebert was the General Manager for the Respondent in 2016 and early 2017. He gave evidence that he had a discussion with Mr Shannon who told him that the Applicant would not be returning to work at the conclusion of their leave. He said that the Applicant was not present at this discussion. He said he did not approve leave without pay for the Applicant.

[9] Mr Syd Laker is the current General Manager for the Respondent. He says he became aware in early March 2017 that the Applicant and Mr Shannon had applied for and been granted leave. He was told by Mr Alex Siebert that they were going on leave and would not be returning to work. He said that Mr Shannon had 11.3 weeks’ leave and the Applicant had 7.6 weeks leave. He was not aware that the Applicant had applied for leave without pay.

[10] Mr Laker said that at a social gathering some weeks prior to the Applicant going on leave, Mr Shannon said that the Applicant did not want to return to work for the Respondent and that the Applicant did not contradict this.

[11] Mr John Hansman is a manager for the Respondent. He said that Mr Shannon had told him on at least two occasions that the Applicant would not be returning to work for the Respondent on her return from leave. On both occasions the Applicant was present but did not contradict what Mr Shannon said.

[12] Mr John Siebert is a maintenance employee of the Respondent. He stated that “on more than one occasion” Mr Shannon said that the Applicant would not be returning to work when they returned from their holiday. The Applicant never said that Mr Shannon did not speak for her.

Was the Applicant dismissed?

Did the Applicant resign?

[13] The totality of the evidence relied upon by the Respondent to support its claim that the Applicant resigned her employment were statements made by her partner Mr Shannon. The employees of the Respondent argued that they were entitled to reach the view that they did as the statements were made in the presence of the Applicant and she did not contradict them.

[14] Whilst I appreciate that the Respondent had reached a view based on the statements of Mr Shannon, none of those who gave evidence of Mr Shannon’s statements in the presence of the Applicant turned to the Applicant to ask her if it was true that she did not intend to return to work after her leave. For some reason they assumed that her partner spoke for her.

[15] This was a matter easily resolved by a simple question that no-one thought to ask.

[16] Further, it appears that the context of many of the discussions were in a social setting. None of what was said in such a setting was then followed up at work where a matter such as this is best dealt with.

[17] It cannot be blindly accepted that one person in a relationship speaks for the other and certainly not, as a matter or fact, that a male speaks for his female partner. The Applicant did not give Mr Shannon permission to speak for her, it was matter that could easily have been clarified but it was not.

[18] I am therefore not satisfied that the Applicant resigned from her employment prior to going on leave. That the Applicant had a return to work date on the whiteboard and had asked to have some of her leave payment withheld until her return (even though this was asked to be paid earlier) supports my conclusion that the Applicant did not resign her employment.

Did the Applicant abandon her employment?

[19] There is no evidence that the Applicant abandoned her employment. She was contactable by email or phone during the period she was absent from work. No evidence was given of any attempt by the Respondent to contact her to determine her whereabouts or clarify if she intended to return to work following her period of approved leave.

[20] I accept that the Applicant and Mr Shannon advised, at the time they commenced working for the Respondent, that they intended to proceed on long leave in May 2017 and hence would not take leave until then. It was clear on the whiteboard the period the Applicant intended to be absent including her return date. There is no evidence that, following her period of paid leave in 2016, the Applicant was told her period of leave for 2017 would be reduced. The Applicant understood – and it was not contradicted by anyone – that she would be on approved leave (paid or otherwise) for the period indicated on the whiteboard.

[21] The Applicant had no reason to believe that she would not be able to be absent for the period of time originally sought with some of the period being taken as unpaid leave. This is reasonable considering the workplace environment where the application for and grant of leave was an extraordinarily informal affair.

[22] There are no grounds to find that the Applicant had abandoned her employment.

Was she dismissed?

[23] In the circumstances the only conclusion available to the Commission is the Applicant was dismissed from her employment by her employer and that this occurred when she returned to work following a period of leave on 3 August 2017.

Was the Applicant unfairly dismissed?

[24] I am satisfied that the applicant is protected from unfair dismissal and that the application has been made in accordance with the relevant provisions of the FW Act.

[25] The FW Act states:

385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.

[26] In this case I am satisfied that the dismissal was not a redundancy.

[27] Further, given that I am satisfied that the Applicant did not resign or abandon her employment, I am satisfied that she was dismissed.

[28] The Respondent stated that at the time the Applicant left employment, it had 14 employees. This makes the Respondent a small business as defined in the FW Act. For this reason it must first be determined if the dismissal was consistent with the Small Business Fair Dismissal Code (the Code).

Did the dismissal comply with the Code?

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.

[29] The Applicant in this matter was not summarily dismissed. Further, there is no submission that the Applicant was dismissed for reasons associated with her conduct or capacity to do the job. In these circumstances it is difficult to see how the “other dismissal” provisions of the Code would apply.

[30] It is apparent that the Code, insofar as it relates to “other” dismissals, requires a consideration of those matters that go to whether a dismissal was harsh, unjust or unreasonable under s.387 of the FW Act. The wording of the Code strongly suggests this including:

● the need for a valid reason relating to conduct or capacity;

● the need for warnings to be given;

● the requirement that an employee be given an opportunity to respond to any reason and the need to consider that response; and

● the right of an employee to have a support person if they so chose.

[31] Further, there is no indication in the Code that the obligation on the Commission to properly consider all of the criteria and the standard of proof is in any way diminished because the employer is a small business.

[32] I shall therefore consider whether the dismissal was harsh, unjust or unreasonable.

Was the dismissal harsh, unjust or unreasonable?

[33] In determining if a dismissal was harsh, unjust or unreasonable it is necessary to consider those matters set out in s.387 of the FW Act. Section 387 states:

387 Criteria for considering harshness etc.

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

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

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

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.

Section 387(a) was there a valid reason or dismissal?

[34] As is apparent from the background to this matter set out above there was no valid reason for the dismissal of the Applicant. Assumptions as to what she might do based on statements of her partner are not a sufficient basis to determine her intentions.

[35] It should be observed that the casual approach to the process of applying for and having leave approved have contributed to this issue. The lack of paperwork, even in a small workplace, will invariably lead to unanticipated problems. Forms do not have to be complex but will clearly indicate an employee’s intentions, whether or not the leave has been approved, a return date from leave and any amendments to the leave.

[36] As observed above, this situation could easily have been resolved if anyone had thought to ask the Applicant what her intentions were at the end of her leave, instead of apparently accepting the word of her partner.

[37] In all of the circumstances I am satisfied that the Applicant’s leave was approved and that she intended to return to work. There was no reason that was “sound, defensible or well founded” and hence no valid reason for her dismissal.

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

[38] The Applicant was advised that her employment had come to an end but the reason given was that she had resigned. Given the absence of a valid reason she could not have been advised of “that” reason.

Section 387(c) whether the person was given an opportunity to respond

[39] All who were present when the Applicant was told she had resigned agree that the meeting became a bit heated.

[40] The meeting however could not be considered an opportunity to respond to matters relating to capacity or conduct as these were not reasons for the termination of the Applicant’s employment.

Section 387(d) unreasonable refusal to allow a support person to attend

[41] This was not put as an issue during proceedings.

Section 387(e) unsatisfactory performance

[42] This is not a relevant consideration. The Applicant’s employment was not terminated for unsatisfactory performance.

Section 387(f) & (g) - the effect of the size of the business and the lack of access to dedicated human resources specialists on the procedures adopted

[43] This is a valid consideration. The Respondent is a small business operating in a remote area of the Northern Territory. I am satisfied that its size and lack of human resources specialist may have effected how it dealt with the Applicant. This however does not offer a reasonable excuse for its failure to carry out any basic due diligence on the intentions of the Applicant prior to her going on leave.

Section 387(h) other matters

[44] There are no other matters to consider.

Conclusion as to harsh, unjust or unreasonable

[45] For the reasons given above and, in particular the lack of a valid reason for the dismissal of the Applicant, I am satisfied that her dismissal was harsh, it was unjust and it was unreasonable.

[46] For this reason I am satisfied that the Applicant was unfairly dismissed.

Remedy

[47] Having found that the Applicant was unfairly dismissed I must now consider a remedy.

[48] The Applicant does not seek reinstatement and I am satisfied reinstatement is not appropriate. I will therefore consider compensation.

“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 subsection (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 subsection (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 subsection (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 subsection (1) must not exceed the lesser of:

(a) the amount worked out under subsection (6); and

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

(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.”

[49] Whilst the Applicant has sought the maximum compensation, I have not received detailed submissions from her or the Respondent on those matters set out, in particular in s.392(2), which I need to consider.

[50] I shall therefore issue further directions for the filing of further submissions from the parties.

COMMISSIONER

Appearances:

E. Wood on her own behalf.

M. Grove on behalf of the Respondent.

Hearing details:

2017.

Darwin:

December 4.

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