Genevieve Buratto v Peter Sheppard Footwear Pty Ltd

[2020] FWC 5709

[2020] FWC 5709

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Genevieve Buratto
v
Peter Sheppard Footwear Pty Ltd
(U2020/7825)

COMMISSIONER HARPER-GREENWELL MELBOURNE, 30 OCTOBER 2020

Application for an unfair dismissal remedy.

[1] Ms Genevieve Buratto (the Applicant) was employed by Peter Sheppard Footwear Pty Ltd (PS Footwear, the Respondent) as an Assistant Store Manager on a permanent part time basis until she was notified on 22 May 2020 that her employment had been terminated for reasons of abandonment of employment. The dismissal took effect on 18 May 2020.

[2] Ms Buratto has made an application (the Application) to the Fair Work Commission (the Commission) claiming that she has been unfairly dismissed by Peter Sheppard Footwear Pty Ltd. Ms Buratto does not wish to be reinstated and is seeking compensation for loss of income as a result of her dismissal. 1

[3] Ms Buratto’s application was made within the time prescribed in s.394(2) of the Act. Peter Sheppard Footwear is not a small-business employer within the meaning of the Act therefore the Small Business Fair Dismissal Code does not apply. The dismissal was not a case of genuine redundancy.

[4] During her employment with PS Footwear, Ms Buratto was covered by the General Retail Industry Award 2010 and her annual earnings were below the high-income threshold. Ms Buratto had completed a period of employment with the company that was at least the minimum employment period. Ms Buratto was a person protected from unfair dismissal.

[5] This application was the subject of a conciliation conference however the matter was not resolved. I note there was a breakdown in communication between the parties and it is regrettable in the current circumstance being the Victorian Covid-19 lockdown that they did not make more of an attempt to maintain the relationship.

[6] At the hearing of this matter Ms Buratto gave evidence on her own behalf. Ms Golfo Karavia, Melbourne Store Manager, gave evidence for and on behalf of PS Footwear.

Submissions

[7] Ms Buratto submits that she failed to attend three of her rostered shifts between 18 May 2020 to 20 May 2020 due to illness which was supported by a medical certificate. 2

[8] Ms Buratto submits that despite providing a medical certificate to PS Footwear for her absence, they subsequently terminated her employment on the basis of abandonment of employment. 3

[9] PS Footwear submits Ms Buratto failed to attend work or notify her Store Manager as per company procedure that she would not be attending work for any reason. They submit Ms Golfo Karavia, Melbourne Store Manager made a number of unsuccessful attempts to contact Ms Buratto. Ms Buratto did not respond to any of Ms Karavia’s calls or messages. 4

[10] PS Footwear submits that due to Ms Buratto’s failure to attend work without explanation for her absence she demonstrated an unwillingness or inability to substantially perform her obligations under her employment contract and hence was considered a renunciation of the employment contract. Her employment with PS Footwear ended on 18 May 2020 as confirmed in correspondence on 22 May 2020. 5

[11] PS Footwear submits that Ms Buratto responded to the termination notification providing a medical certificate for her absence, however they maintained their position that Ms Buratto was in breach of her employment contract and the decision to terminate her employment remained. 6

Case Presented

[12] The facts in this matter are largely uncontested. At the time of Ms Buratto’s dismissal PS Footwear employed approximately 90 employees and until recently operated stores in both Collins Street Melbourne and Burke Street Camberwell.

[13] On 13 June 2016 Ms Buratto commenced her employment with the Respondent as an Assistant Store Manager on a permanent part time basis at the Camberwell Store. 7

[14] On or around 8 February 2020 Ms Buratto met with PS Footwear representatives who informed her that the Camberwell Store would be closing down. 8

[15] On 18 February 2020 Ms Buratto received a letter confirming the details of the previous discussions held in person being that the Camberwell Store would be closing. The letter stated that Ms Buratto was to be redeployed to the Collins Street Melbourne Store and she would be provided with equivalent hours to her current roster at the Camberwell Store. The letter also stated that Ms Buratto would commence at the Melbourne Store on 9 March 2020.  9

[16] It is not in contention that PS Footwear was able to direct Ms Buratto to attend work at a different location. Ms Buratto’s employment contract Clause 11 Location, states the following:

“You may be required at Peter Sheppard Footwear’s discretion to carry out your duties either permanently or temporarily at other locations where Peter Sheppard Footwear conducts business.” 10

[17] Ms Buratto did not attend her first rostered shifts at the Melbourne Store, her evidence was that she was sick at the time and she provided PS Footwear with a medical certificate to that effect. 11

[18] Ms Buratto remained on sick leave until she received a letter by email on 24 March 2020 from Mr Chris Sheppard, 12 Chief Executive Officer stating:

“Due to the devastating impact of the global Coronavirus pandemic on our communities, the extreme economic downturn as a result and enforced Federal and State Government shut downs which have all resulted in a stoppage to work across our operations, particularly within our retail stores, we have had to make the very difficult decision to temporarily shut down and close our doors to the public.” 13

[19] The letter advised that Ms Buratto was to be stood down due to the Covid-19 lockdown and that she may use her accrued leave entitlements during the stand down period. Ms Buratto then proceeded to receive Job Keeper payments for the remainder of the stand down period. 14

[20] On 13 May 2020 Ms Karavia emailed Ms Buratto advising that the Melbourne Store was reopening at reduced hours and she had been rostered to work on 18, 19 and 20 May 2020. 15 Ms Buratto was required to confirm her acknowledgement and receipt of the email by 15 May 2020 and was invited to “get in touch” should she have any questions.16

[21] On 15 May 2020 Ms Buratto emailed Peter Shephard Footwear (with a copy to her lawyer) expressing the following concerns:

“….I am a little concerned about how the business is preparing to follow the protocol from the Government. In the past few days there have been a lot more positive cases than there has been in recent weeks and this is with the new restrictions being relaxed. In saying this, I am a little anxious that if rushed back to work too soon I may in fact be exposed to the disease and the company in turn will be exposed to it also. At the present time, I feel much safer and far better mentally and physically being at home.

It is evident that there are procedures being discussed by the federal and state governments as to how people in society will need to interact and go about day to day life with the restrictions slowly being lifted. However, nothing has been determined by the Victorian government, it is all quite blurred. With this uncertainty, I think it is foolish for me to rush back to work and the thought of that in this current climate is daunting. Eventually, once the pandemic has become manageable and there are more coherent guidelines, I will be more confident to return to work.” 17

[22] On 16 May 2020 Peter Shephard Footwear emailed Ms Buratto acknowledging her concerns, they provided some statistics from the Victorian Department of Health and Human Services website and advised Ms Buratto that they had been following the government directions to ensure the safety of the public and their team members. They further advised that they had sought advice from “Fair Work” to ensure that they were being compliant and that the request for her to return to work was a lawful direction. The email went on to state that PS Footwear were looking forward to seeing Ms Buratto on “Monday” for her scheduled shift. 18

[23] Ms Buratto did not reply to the 16 May 2020 email. Ms Buratto’s evidence in cross examination was that she didn’t respond because she had already raised her concerns in an earlier email.

[24] Ms Buratto failed to attend for her rostered shifts from 18 May 2020 to 20 May 2020. Ms Buratto’s evidence was that she had been sick over the weekend and went to the Doctors and her Doctor forwarded a medical certificate to her. Ms Buratto says after seeing the Doctor she went home and went to bed.

[25] Ms Buratto was questioned as to the nature of her illness. Her evidence was that she was sick with gastro and vomiting and she later added that she was stressed. She also gave evidence that she was at home sick and could not move and therefore couldn’t contact her employer. Ms Buratto’s says she was stressed about going to work as she lived 15 minutes from the Melbourne Store and she would have to catch public transport.

[26] Ms Buratto’s evidence was that she lives at home with her family and her husband was working at the time, however Ms Buratto was extremely evasive when giving evidence about whether her husband had been working from home or not during that period.

[27] From 16 May 2020 to the date of her dismissal Ms Buratto had not attempted to contact her employer to advise that she would not be in attendance.

[28] Ms Buratto’s evidence is that she did not receive any messages, calls or emails from the Respondent during that period. 19 Mr Buratto provided a screen shot of her text messages received between 5 May 2020 and 15 June 2020. Ms Buratto was not cross-examined as to whether or not the screen shot was a true copy of the messages or whether she had deleted any of the messages from her phone. Ms Buratto did however give evidence that it was her phone number on the text messages allegedly sent to her by PS Footwear that formed part of PS Footwear’s evidence.20

[29] Ms Karavia gave evidence that on 18 May 2020 when Ms Buratto failed to attend for work she phoned her on her mobile however Ms Buratto did not answer so she sent a text message later that afternoon. 21 Ms Buratto did not respond to the text message or return Ms Karavia’s calls.

[30] Ms Karavia’s evidence was that when Ms Buratto failed to attend for work again on 19 May 2020, she again made several unsuccessful attempts to contact Ms Buratto. Ms Karavia was unable to leave a message because the phone rang out. 22 Later that day Ms Karavia made another attempt to contact Ms Buratto however this time the phone had been turned off. Ms Karavia again sent a text message but she did not receive a response. Ms Karavia’s evidence was that the General Manager also made attempts to contact Ms Buratto however he was also unsuccessful.23

[31] On 22 May 2020 Ms Buratto received an email from PS Footwear stating that she had failed to attend work for 3 consecutive shifts and that PS Footwear had not heard from her since 15 May 2020. The email states that in the circumstances where Ms Buratto has failed to attend for work and had not contacted anyone at PS Footwear they accept that she had abandoned her employment as of the 18 May 2020 and that the employment relationship ended at her own initiative. 24

[32] On 22 May 2020 at 3:14pm Ms Buratto responded to the email stating the following:

“Hi All,

Please find attached medical certificate. I have been terribly stressed and unable to think straight at the current time.” 25

[33] Ms Buratto did not contest the dismissal in her email nor did she attempt to provide any further explanation.

[34] Later that evening at 10:33pm Ms Sathiamoorthy responded confirming that Ms Buratto’s failure to respond to PS Footwear’s attempts to contact her and her failure to attend for work without notification were unacceptable conduct in breach of her employment contract. Ms Sathiamoorthy wrote that under those circumstances PS Footwear considered Ms Buratto’s conduct to be a renunciation of her employment obligation’s and therefore the end of her employment relationship with PS Footwear. Ms Sathiamoorthy concluded stating that the employment with PS Footwear ended on the basis of Ms Buratto’s repudiation of her contract. 26

Statutory framework

[35] Section 386 of the Act deals with the meaning of dismissed while s.394 sets out who may apply for an unfair dismissal remedy. The sections provide as follows:

“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)….”

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.”

Consideration of the issues

[36] Ordinarily termination occurs without the agreement of the employee, however there are circumstances when an employee acts to sever the relationship by resigning or accepting the employer’s repudiation of the employment contract.

[37] The issue of dismissed at the initiative of the employer was considered by the Full Court of the then Industrial Relations Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd (No 2) (Mohazab) 27. The Full Court stated in its decision that:

“In these proceedings it is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer but plainly an important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship. This issue was addressed by Wilcox CJ in APESMA v David Graphics Pty Ltd (unreported, Industrial Relations Court of Australia, 12 July 1995, Wilcox CJ). His Honour, at p 3, referred to the situation of an employee who resigned because ‘he felt he had no other option’. His Honour described those circumstances as:

‘…a termination of employment at the instance [of] the employer rather than the employee.’

And at p 5:

‘I agree with the proposition that termination may involve more than one action. But I think it is necessary to ask oneself what was the critical action, or what were the critical actions, that constituted a termination of employment.” 28 (underlining added)

[38] Abandonment of employment was considered by the Full Bench in Boguslaw Bienias v Iplex Pipelines Australia Pty Ltd (Iplex). 29 In its decision the Full Bench confirms that in circumstances in which abandonment of employment occurs as contemplated by an applicable award or agreement the employment will not automatically come to an end. Rather, the employer will have to take some further action to bring about the termination of the employment.

[39] Following the principles espoused in Iplex even if Ms Buratto abandoned her employment this does not of itself end the employment relationship. Rather, it provided the opportunity for PS Footwear to form that conclusion and end the employment relationship on that basis.

[40] It’s not in contention PS Footwear terminated Ms Buratto’s employment. They submit that the termination was for a valid reason being Ms Buratto’s repudiation of her employment contract by way of her abandonment of her employment. They further submit that the absence of Ms Buratto’s communication and failure to notify PS Footwear that she would not be attending her rostered shifts was misconduct and a valid reason for her dismissal.

[41] In the present case Ms Buratto contends that she was dismissed by PS Footwear by email dated 22 May 2020 and that there was no valid reason for her dismissal. Ms Buratto relies on the decision in Alexis King v D.C Lee & L.J Lyons (King) 30in support of her assertion that the dismissal should be considered as harsh and disproportionate to the gravity of the misconduct in respect of which PS Footwear relies upon as a valid reason for the dismissal.

[42] Ms Buratto submits that the principles in King stipulates that a dismissal in such circumstances (absence without notice) is to be considered harsh and disproportionate to the gravity of the misconduct. I respectfully disagree with the summation made by Ms Buratto, the decision in King does not stand for the general proposition proffered.

[43] In his decision Commissioner Johns found that Lee and Lyons had a valid reason for dismissing King because she owed contractual obligations to her employer, she had been placed on notice about her attendance and she breached her obligations by not notifying anyone that she would not be in attendance at the time expected. After considering the relevant facts being that Lee and Lyons did not seek, or ignored advice from their Human Resources Manager as to the dismissal and the applicants domestic violence situation the Commissioner ultimately found that the dismissal was ‘harsh and disproportionate to the gravity of the misconduct in respect of which the respondent acted’.

Harsh, Unjust Unreasonable

[44] 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.”

[45] The type of conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained by the High Court of Australia in Byrne v Australian Airlines Ltd.³¹ McHugh and Gummow JJ explained as follows:

“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”32

[46] 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)

[47] The employer must have a valid reason for the dismissal of the employee, although it need not be the reason given to the employee at the time of the dismissal. 33 The reason for the dismissal should be “sound, defensible and well founded”34 and should not be “capricious, fanciful, spiteful or prejudiced.”35

[48] The Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer. 36 The question the Commission must address is whether there was a valid reason for the dismissal related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees).³⁷

[49] In cases relating to alleged conduct, the Commission must make a finding, on the evidence provided, whether, on the balance of probabilities, the conduct occurred.³⁸ It is not enough for an employer to establish that it had a reasonable belief that the termination was for a valid reason. 39

[50] The circumstances leading to Ms Buratto’s dismissal are largely uncontested. The parties’ evidence is at odds on a particular point being whether or not PS Footwear had made reasonable attempts to contact Ms Buratto during the period she failed to attend for her rostered shifts from 18 to 20 May 2020.

[51] Ms Buratto’s evidence was that she had not received any phone calls or text messages from PS Footwear during the period of 18 May 2020 to 20 May 2020. Ms Karavia evidence was at odds with Ms Buratto’s. I prefer Ms Karavia’s evidence on this point, she gave clear and candid evidence. I found Ms Buratto’s evidence regarding the phone calls to be unconvincing. Ms Karavia submitted records of the text messages sent to Ms Buratto and I am satisfied that Ms Karavia made numerous attempts to contact Ms Buratto by text and calling her and Ms Buratto did not make any attempt to contact Ms Karavia. However, I note that there were no other attempts made by PS Footwear to contact Ms Buratto even though they had her mailing address and her emergency contact details.

[52] Ms Buratto’s evidence was that she had attended the Doctors on 18 May 2020 and during that visit she obtained a medical certificate. She also gave evidence that she was so sick she was unable to contact her employer. Whilst I accept that Ms Buratto may have been unwell the evidence is that Ms Buratto was physically able to make an appointment, take herself to the Doctors and return to her residence. This supports a finding that she was physically capable of contacting her employer and notifying them that she was unfit for work. Ms Buratto failed to do so and for the 3 days she did not attend for her rostered shifts. Further, Ms Buratto did not live at home alone, she has a husband and children residing with her. Ms Buratto could have quite simply asked her husband to contact PS Footwear on her behalf.

[53] Ms Buratto was cross-examined as to her knowledge of her contractual obligations to notify PS Footwear that she would be absent from work. Again, I found Ms Buratto to be extremely evasive during cross-examination and she consistently avoided answering questions. Ms Buratto did after some considerable time acknowledge that she was aware of the requirements to notify her employer if she was unable to attend work. Ms Buratto had a contractual obligation to notify her employer if she was unable to attend her shifts as soon as practicable before (or as soon as practicable after) her scheduled start time. The evidence supports a finding that Ms Buratto simply chose not to comply with those requirements therefore breaching the obligation she owed to her employer.

[54] I will now turn to consider whether Ms Buratto abandoned her employment. Ms Buratto was clearly concerned about potential exposure to Covid-19 and I accept that her fears caused her a degree of stress. I have formed the view that it was not Ms Buratto’s intention to abandon her employment. Instead she foolishly chose to remain absent from work without notifying PS Footwear of the reasons for her absence. It is unfortunate that Ms Buratto did not make any attempt to have her concerns considered subsequent to PS Footwear’s 16 May 2020 email.

[55] Ms Buratto’s employment contract provides at clause 24. Abandonment of Employment:

“Your absence from work for a continuous period exceeding three (3) days without the consent of Peter Sheppard Footwear and without notification to Peter Sheppard Footwear shall be prima facie evidence that the employee has abandoned their employment with Peter Sheppard Footwear.”

[56] The contract states that after more than three consecutive days of absence without consent and notification PS Footwear will automatically consider that the employee has abandoned their employment. PS Footwear’s presumption that Ms Buratto had abandoned her employment was made in haste and was premature, as Ms Buratto’s absence from work had not exceeded three days.

[57] I am not satisfied that Ms Buratto had abandoned her employment however I am satisfied that Ms Buratto had breached her contractual obligation owed to her employer and that her behaviour was misconduct. Ms Buratto’s misconduct was a valid reason for termination of her employment.

Notification of the Valid Reason –s.387(b) and an Opportunity to Respond –s.387(c)

[58] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made 40, and in explicit41 and plain and clear terms.42 In Crozier v Palazzo Corporation Pty Ltd a Full Bench of the Australian Industrial Relations Commission dealing with a similar provision of the Workplace Relations Act 1996 stated the following :

“As a matter of logic procedural fairness would require that an employee be notified of a valid reason for the termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.” 43

[59] An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality. 44

[60] Other than the phone calls and texts to Ms Buratto’s phone to ascertain if she would be attending her rostered shifts there were no other attempts made to check on Ms Buratto’s welfare. PS Footwear had the emergency contact details and Ms Buratto’s residential address available to them however there were no attempts made to contact her by either of those methods.

[61] Ms Buratto was notified of the reasons for her dismissal after the decision was made to terminate her employment. Ms Buratto was not advised either in writing or by phone that PS Footwear was considering terminating her employment due to her failure to comply with the notice requirements as set out in her employment contract. Ms Buratto was not afforded an opportunity to respond.

Unreasonable Refusal of a Support Person – s.387(d)

[62] 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.⁴⁵ 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.46

[63] Ms Buratto was not provided with an opportunity to have a support person as the decision to dismiss her was made prior to her being made aware of the dismissal. As such the issue of an unreasonable refusal does not arise.

Warnings regarding Unsatisfactory Performance – s.387(e)

[64] 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.⁴⁷ Unsatisfactory performance is more likely to relate to the employee’s capacity to do the job, than their conduct.⁴⁸ 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.⁴⁹

[65] Ms Buratto was dismissed for reasons of conduct and not capacity to perform her role. There were not warnings for unsatisfactory performance. It is not a relevant consideration.

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)

[66] 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.⁵⁰ 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.⁵¹

[67] PS Footwear utilises an external Human Resource Consultant to assist with their human resource management. The Consultant engaged submits that she has little expertise in the field of Industrial Relations. This was evident in the procedural deficiencies. Ms Buratto’s dismissal was enacted in haste which may also have been a contributing factor to the procedural deficiencies. The conduct of dismissing Ms Buratto prior to putting her on notice that PS Footwear was considering that she had abandoned her employment was procedurally unfair given that her contract specifies that an absence of more than three days is required before it would be deemed an abandonment of employment.

Other Relevant Matters – s.387(h)

[68] Ms Buratto submits that it is suspicious that she was treated so harshly after the permanent closure of the Camberwell Store. She submits that considering PS Footwear was well staffed, it is reasonable to conclude that the closure of the Camberwell Store would effectively mean there was an excess of employed staff. Ms Buratto submits that her dismissal was an attempt to avoid paying her a redundancy payment.

[69] PS Footwear strongly objected to such an assertion submitting that they had consulted with Ms Buratto about the closure of the Camberwell Store and they had redeployed her to the Melbourne Store to ensure she remained gainfully employed.

[70] There is no evidence to support a finding that PS Footwear were seeking to avoid an obligation to pay Ms Buratto a redundancy payment. PS Footwear had redeployed Ms Buratto to a position 15 minutes from the location she had previously worked. She was not eligible for a redundancy payment.

Finding

[71] Having considered each of the matters specified in s.387, I am satisfied that there was a valid reason for the dismissal of Ms Buratto, however the haste with which the dismissal was enacted led to a lack of procedural fairness being afforded to Ms Buratto. Ms Buratto was medically incapacitated at the time of her dismissal. I therefore find in all the circumstances the dismissal to be harsh.

[72] Had PS Footwear not taken such a punitive approach in its management of the matter an unfair dismissal application may have been avoided.

Remedy

[73] PS Footwear did not file any submissions pertaining to remedy, nor did they address remedy in their closing submissions. I am therefore unable to determine remedy. The parties will be provided with an opportunity to make written submissions addressing the issue of remedy.

[74] Directions for the filing of submissions for remedy will be issued from my Chambers accordingly.

COMMISSIONER

Appearances:

T. Hu of SLF Lawyers for the Applicant
A.Sathiamoorthyof E&I People Solutionsfor the Respondent

Hearing details:

2020.
Melbourne (by video link via Microsoft Teams):
September 9.

Printed by authority of the Commonwealth Government Printer

<PR723923>

 1   Exhibit A1

 2   Ibid

 3   Ibid

 4   Exhibit R1

 5   Ibid

 6   Ibid

 7   Exhibit A3, p2

 8   Exhibit R1

 9   Ibid, Annexed letter 18 February 2020

 10   Ibid, Annexed Employment Contract

 11   Audio recording of Hearing on 9 September 2020

 12   Exhibit R3, p5

 13   Ibid, Annexure 2

 14   Ibid

 15   Exhibit A3, p6

 16   Ibid, Annexure 3

 17   Ibid, Annexure 4

 18   Ibid, Annexure 5

 19   Ibid, p9

 20   Audio recording of Hearing on 9 September 2020

 21   Exhibit R2, p3-4, Annexure 3

 22   Exhibit R2, p5

 23   Exhibit R2, Audio recording of Hearing on 9 September 2020

 24   Exhibit A3, Annexure 7

 25   Ibid

 26   Ibid

 27 (1995) 62 IR 200

 28   Ibid at 205-206

 29   [2017] FWCFB 38

 30   [2016] FWC 1664

31 (1995) 185 CLR 410

32 Ibid at 465

 33   Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-8

 34   Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373

 35   Ibid

 36   Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681 at 685

37 Ibid

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

 39   Ibid

 40   Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41]

 41   Previsic v Australian Quarantine Inspection Services Print Q3730

 42   Ibid

 43   Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at [73]

 44   RMIT v Asher (2010) 194 IR 1 at 14-15

45 Fair Work Act 2009 (Cth) s.387(d)

46 Explanatory Memorandum, Fair Work Bill 2009 (Cth) [1542]

47 Fair Work Act2009 (Cth) s.387(e)

48 Annetta v Ansett Australia Ltd (2000) 98 IR 233, 237

49 Johnston v Woodpile Investments Pty Ltd T/A Hog’s Breath Café – Mindarie[2012] FWA 2 [58]

50 Fair Work Act 2009 (Cth) s.387(f)

51 Fair Work Act2009 (Cth) s.387(g)