Hermenia Azarcon v Sir Moses Montefiore Jewish Home
[2010] FWA 9507
•9 DECEMBER 2010
Note: An appeal pursuant to s.604 (C2010/6018) was lodged against this decision.
[2010] FWA 9507 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Hermenia Azarcon
v
Sir Moses Montefiore Jewish Home
(U2010/8652)
COMMISSIONER ROBERTS | SYDNEY, 9 DECEMBER 2010 |
Application for unfair dismissal remedy.
[1] This decision concerns an application lodged on 5 May 2010 by Ms Azarcon pursuant to s.394 of the Fair Work Act 2009 (the Act). The Respondent to Ms Azarcon’s application is the Sir Moses Montefiore Jewish Home (Montefiore or the Respondent). The application states that the termination of employment took effect on 9 April 2010. Accordingly, Ms Azarcon’s application was filed 12 days outside the 14 day time limit prescribed by the Act. The Respondent did not object to the out of time application and an extension of time was granted by Senior Deputy President Acton on 22 July 2010.
[2] The application was dealt with by a Fair Work Conciliator on 11 June 2010 but the conciliation was unsuccessful. The arbitration came before me for hearing in Sydney on 8 October 2010. On that day I suggested to the parties that further conciliation before a Member of the Tribunal might lead to a settlement. There was subsequently conciliation before her Honour Senior Deputy President Drake on 8 October and 20 October 2010. That further conciliation also failed to settle the matter. It then came back to me for arbitration on 26 November 2010 in Sydney. Ms Azarcon represented herself assisted by an interpreter, Mr R Amores. Montefiore was represented by Ms C Spruce, of Counsel, with Mr R Crofts of Harmers Lawyers. Ms Azarcon gave sworn evidence on her own behalf and Ms J Venman (Executive Care Manager at Randwick Campus) and Ms A Santikos (Human Resources Manager) gave sworn evidence for Montefiore.
Background
[3] Ms Azarcon entered employment with Montefiore at its Randwick Nursing Home in January 2008 as an Assistant in Nursing (AIN). Her employment was terminated by Montefiore by way of a letter dated 9 April 2010. Montefiore claims that Ms Azarcon abandoned her employment and further argues, in the alternative, that any termination of her employment was for serious and wilful misconduct in that she failed to follow reasonable and lawful directions by proceeding on a period of unauthorised leave and failing to return to work when requested.
[4] Ms Azarcon claims that she was entitled to take annual leave and that her employment was unfairly terminated by Montefiore.
Legislative Framework
[5] Section 385 of the Act provides:
“385 What is an unfair dismissal
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.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”
[6] Montefiore does not claim to be a Small Business, as defined.
Evidence
Ms Azarcon
[7] Ms Azarcon gave sworn evidence with the assistance of Mr Amores and submitted a witness statement. 1
[8] In her witness statement, Ms Azarcon, in summary, said:
- That she had been searching for airfare prices since August 2009 to allow her and her mother to visit the Philippines.
- That she did not request annual leave from Montefiore before booking the tickets, as she wished to obtain an air ticket first.
- That she completed a request for annual leave on 14 February 2010.
- That Ms Venman: “... told me just fill up the form it is case to case basis anyway.”
- That two days later she read on the Company’s internal AutumnCare system, which is a software program the Nursing Home uses to distribute notices to the nursing staff, that no annual leave or rostered days off would be approved due to the Nursing Home preparing for its Accreditation. She believed her leave would still be approved as she had spoken to Ms Venman some time around 9 February 2010.
- That her travel was to commence on or about 20 March 2010.
- That she received a letter dated 24 February 2010 denying her request for leave.
- “I was so frustrated because it is my entitlement and I positively expected that there is a consideration because I already mentioned ahead before the Accreditation issue, that I had an airfare ticket booked already and it is family matters.”
- That on 1 March 2010 she wrote to Ms Santikos about taking leave but leave was still not approved.
- That she checked the shift roster before going overseas and found that her name did not appear on the roster.
- “As far as I believe I have the right to take my entitlement when ever I want as long as I have sufficient leave for a reasonable circumstances ... Respondent don’t have the right to control my Annual leave entitlement.”
- That Ms Santikos had told her that Montefiore was not sure if there would be a job available for her when she returned from her holiday. She proceeded to take her annual leave because she believed that this was a threat and Montefiore had planned to terminate her for some time and “they are just looking for an excuse”.
- That she returned to Sydney on 3 May 2010, checked her mailbox and found two letters from Ms Venman, including the termination letter of 9 April 2010.
- “On 30th of March 2010 I received express by post letter saying, that you are directed to return to work by 2nd of April 2010. You need to be aware that failure to adhere to this lawful and reasonable directive may result in the termination of your employment.”
- That her dismissal was unjust and harsh as she applied for annual leave more than one month before she wished to take it.
- That the provision of the collective agreement under which she worked, provides that annual leave will be taken at a time mutually agreed between an employee and Montefiore. She believed that the Agreement provision favoured the employer which then abused that power by using the pending Accreditation to argue that she could not take leave and that Montefiore “wanted to get rid of me ..”
- That the letter from Montefiore dated 2 April 2010 requiring her to return to work was impossible to comply with as she was overseas.
[9] Attached to Ms Azarcon’s witness statement were a number of documents including her flight itinerary, her leave application form, various pay advices and copies of correspondence from Montefiore.
[10] In cross-examination, Ms Azarcon:
- Agreed that she did not inform Montefiore that she was planning to go overseas when she first started investigating airfares in August 2009. 2
- Said that she presumed her leave request would be approved. 3
- Agreed that she submitted an annual leave request after Montefiore advised that no leave requests would be granted. 4
- Said that she had two or possibly three conversations with Ms Venman concerning the taking of leave. 5
- Said that the Accreditation process did not require her to be at work. 6
- Agreed that she was invited to seek a review of the initial decision to refuse her leave request. 7
- Agreed that the review confirmed the original refusal to grant leave. 8
- Said that she was aware of the refusal by Montefiore but proceeded on leave anyway because she had bought an air ticket. 9 “I have my ticket and it is my entitlement.”10
- Agreed that Ms Santikos told her that she might not have a job when she returned. 11
- Said that she did not expect Montefiore to attempt to contact her while she was away. 12
- Said that she has been working in a nursing home since the end of September 2010 on a casual basis. 13
- Said, in response to a question from me, that she did not contact Montefiore after she found the termination letter in her mailbox on 3 May 2010. 14
Ms Venman
[11] Ms Venman gave sworn evidence and submitted a witness statement. 15 In her statement, Ms Venman said that she has overall managerial responsibility for the Randwick Nursing Home which has around 100 staff, mostly Registered Nurses and AINs. She took up her position in August 2008.
[12] Ms Venman went on to say that the Nursing Home is required to obtain accreditation by the Aged Care Standards and Accreditation Agency (the Agency) every three years to ensure compliance with Government accreditation standards. Random spot checks are conducted by the Agency, which attended the Nursing Home to perform such checks on 6 May 2009 and 2 March 2010. In July 2009 Montefiore conducted its own internal audit which “... identified a number of problem areas in the Nursing Home, particularly in the clinical care and practices of the nurses and AINs.” Ms Venman prepared an Action Plan in response to those findings. A further internal review in January 2010 showed that the many of the problem areas remained. On 9 February 2010 she received an email from the Director of Support Services of Montefiore which “... instructed me not to approve leave applications for staff until the ACSAA accreditation process was completed in May. It also instructed me to reconsider all existing leave already approved for that period on a case-by-case basis.” She went on to say: “The risks of failing the accreditation review were too high and immediate improvements were needed. ... I would notify the staff as soon as possible on the AutumnCare system ...”
[13] “On 11 February 2010, I posted a notice on the AutumnCare system to all staff, including the Applicant. The notice stated that I had been given a directive that no further annual leave or RDOs would be approved until after the accreditation process in May. It also said that anyone who had already had leave approved would need to see me for review.”
[14] The AutumnCare system records show that Ms Azarcon viewed the notice at 6.26 am on 12 February 2010. Ms Venman denies that the Applicant mentioned her leave request to her at any time before the notice was distributed on 11 February 2010.
[15] In spite of the 11 February notice, the Applicant submitted a leave form on 14 February 2010 requesting 34 days annual leave, to commence on 20 March 2010. Ms Venman subsequently met with Ms Santikos to review annual leave applications and the two agreed that Ms Azarcon’s request could not be approved. “If we had approved the Applicant’s leave she would have been away for over six weeks in the vital time leading up to the accreditation process (from 20 March to 5 May 2010). This would mean she would miss a lot of the training arranged, as well as the monitoring and one-on-one assistance that would be given by the Learning and Development Officers that were at the Home at the time. Between 20 March and 5 May 2010 ... training sessions were conducted which were directly relevant to the Applicant’s duties.”
[16] “The very reason for restricting leave was to ensure that all staff were appropriately trained and that there were no ‘weak links’ in clinical care across the Home. It was also vital for morale that all staff operated as a unit at this time to achieve consistency. This would not be possible with the Applicant absent for such a long period at such an important time.”
[17] Ms Venman formed the view that there were no extreme circumstances or compassionate grounds for granting leave to Ms Azarcon. She sent a memo to the Applicant on 24 February 2010 explaining that leave could not be approved. No annual leave request was approved for any other member of staff. Ms Santikos approached Ms Venman with Ms Azarcon’s letter of 1 March 2010 and it was decided to maintain the refusal to grant leave. “I did not think that the prior purchase of airfares was a sufficient extenuating circumstance. She had, after all, purchased them before applying for leave, and the reasons for requiring her at work were too important in the circumstances.”
[18] All staff were given a letter with their pay slips on or about 5 March 2010 “explaining the reasoning behind the decision to halt leave approvals”.
[19] On 19 March 2010, Ms Venman had a conversation with the Applicant to the following effect:
“Applicant: | I wanted to tell you that I’m taking my leave. |
[Ms Venman]: | I’ve already informed you that leave isn’t approved. |
Applicant: | I’m taking it anyway. |
[Ms Venman]: | That’s your decision.” |
[20] Ms Venman then arranged for casual staff to replace Ms Azarcon on her upcoming shifts. Ms Venman does not deny that Ms Azarcon’s name may have been deleted from the shift roster: “This would have happened to ensure cover was arranged as it was clear to me on 19 March 2010 that she was not going to attend work and I did not want to be short-staffed. In no way did this indicate that I was approving the leave, I just wanted to ensure the Nursing Home would have sufficient staff on duty.”
[21] Ms Venman’s statement went on to say that she had not seen the Applicant since 19 March 2010. She denies that there was any plan to dismiss Ms Azarcon, with whom she had had very few dealings. “The simple fact was that I wanted her to continue working in the lead-up to the accreditation. It was her decision to go on unapproved leave and the subsequent events were a consequence of that decision only.” It was Ms Venman’s view that Ms Azarcon had abandoned her employment.
[22] In cross-examination, Ms Venman repeated her evidence that she had not had any conversation(s) with Ms Azarcon prior to the lodging of the leave request. 16 She went on to say that she did not recall approving annual leave for any person around that time.17
Ms Santikos
[23] Ms Santikos gave sworn evidence and submitted a witness statement. 18 In her statement, Ms Santikos gave evidence in line with that of Ms Venman concerning the Agency accreditation procedure and the requirements within the Nursing Home to remedy various identified defects in preparation for accreditation. Her statement also accorded with that of Ms Venman concerning Ms Azarcon’s application for annual leave and subsequent events.
[24] “The only ‘extenuating’ circumstances appeared to be the fact the Applicant had already booked her airfares, but she had one so before submitting her leave request to Jenny. Given the nature of the service provided by staff, which requires constant around the clock care for residents by a requisite number of staff at all times, rostering is a very important part of planning in the business. It is therefore not unusual for restrictions to be placed on the taking of annual leave, such as periods where only a limited number of staff are allowed on leave at any time (such as at Christmas or other holidays). The Applicant was aware that decisions like this could be made at any time and should have known she needed approval for leave before booking her airfares otherwise it would be at risk.”
[25] She agreed with the position taken by Ms Venman concerning Ms Azarcon’s leave request. She said that the following conversation had occurred between herself and the Applicant on 19 March 2010:
“Applicant: I’m just letting you know that I’m going on leave. I’ve been treated unjustly and have a right to my leave.
[Ms Santikos]: We’ve carefully reviewed your request for leave. If you do go off we’ll consider it unauthorised leave and can’t say there will be a position on your return.
Applicant: It’s unfair the way I’ve been treated.”
[26] She drafted correspondence for Ms Venman to send to Ms Azarcon on 30 March 2010 and drafted the letter of termination dated 9 April 2010.
[27] In cross-examination, Ms Santikos was asked by Ms Azarcon: “The only thing I have to ask, because annual leave is my entitlement, I just wondering why, I mean, it’s refused?” and replied: “Sure. There was no dispute that you had annual leave accrued, but in accordance with the annual leave provision of Montefiori’s collective agreement, an employee needs to provide at least 28 days’ notice of their intention to take annual leave and that request for annual leave has to be agreed to by the employer. Simply having an annual leave entitlement doesn’t automatically give you the right to proceed on annual leave. You must give that 28 days’ notice that I mentioned and it needs to be taken at a time that the employer is also in agreement with.”
[28] Ms Santikos was asked why in a case by case decision making by Montefiore on requests for the taking of leave, her application was refused. 19 Ms Santikos replied: “...we did again consider your leave application form, but due to the directive that was in place which stemmed from the issues that had been identified in the nursing home and there was a concern that the nursing home would not meet accreditation, and due to the length of time that you had requested it was approximately a six-week period, the decision was made to refuse your leave request.”20
The chronology of events
[29] The following chronology is useful:
1. July 2009.
Internal Montefiore audit identifies various problems within the Nursing Home which would impact on its accreditation.
2. August 2009.
Ms Azarcon commences a search for suitably priced air tickets to the Philippines for herself and her mother.
3. January 2010.
A further internal audit finds that many problems earlier identified have not been rectified.
4. 5 - 6 February 2010.
Air tickets for Ms Azarcon and her mother are confirmed, with a departure date of 21 March 2010.
5. 9 - 10 February 2010.
Ms Azarcon claims to have spoken to Ms Venman on two or more occasions concerning her desire to take leave for the period 20 March 2010 to 5 May 2010.
6. 9 February 2010.
Ms Venman receives an email from Mr Burns, Montefiore’s Director of Support Services, in the following terms:
“In review of the situation in the nursing home, you are now directed to not approve any leave applications for staff. We want the full compliment of staff to be on hand to rectify the nursing home from the poor state it is currently in to fix it to be an acceptable standard.
This directive will remain in force and will be reviewed after accreditation of the Randwick campus.
If you have already approved leave for staff, these are all to be reconsidered on a case by case basis. Any short periods of leave will need to be cancelled. If you believe some should still be granted leave, you are to bring it to Fleur’s attention, who will then consider the leave request.”
7. 11 February 2010.
Ms Venman sends a message to all staff in the following terms:
“I have been given a directive from HR that no annual leave or RDO’s will be approved until after accreditation which is still to be confirmed however estimated to be in May. If you have leave already booked you will need to come and see me to discuss this. I know this may be frustrating for many of you however we need as many as possible of our team to get things together during this very important time.
I will also put a note out with the pay slips to this effect.”
8. 12 February 2010.
Ms Azarcon views the message.
9. 14 February 2010.
Ms Azarcon submits a leave application form.
10. 24 February 2010.
Ms Venman sends a message to Ms Azarcon in the following terms:
“Please find attached a copy of your leave form. I have discussed this leave request with Human Resources and unfortunately I am unable to approve this leave. Should you have any queries regarding this I would like to recommend you contact HR directly. I have also put a copy of the annual leave clause in our collective agreement which states on point c. that we do not have to approve all leave.”
11. 1 March 2010.
Ms Azarcon writes to Ms Santikos claiming that the refusal of her request of leave was unjust, that her leave is an entitlement and that she had already booked air tickets for herself and her mother.
12. On or about 5 March 2010.
All staff are given a letter with their payslips giving further details of the reasons for restricting access to annual leave.
13. 9 March 2010.
Ms Venman writes to Ms Azarcon further explaining the reasons for the refusal of her leave request.
14. 19 March 2010.
Ms Azarcon informs Ms Venman that she still intends to proceed on leave from 20 March 2010.
15. 19 March 2010.
Ms Santikos informs the Applicant that if she proceeds on unauthorised leave there would be no guarantee that she would have a job on her return.
16. 30 March 2010.
Ms Venman writes to Ms Azarcon directing her to return to work by 2 April 2010 and advising her that failure to obey that directive “may result in the termination of your employment”.
17. 9 April 2010.
Ms Venman writes to Ms Azarcon terminating her employment.
18. 3 May 2010.
Ms Azarcon returns to Australia and retrieves Montefiore’s correspondence of 30 March and 9 April 2010.
19. 5 May 2010.
Ms Azarcon files her application for relief with the Tribunal.
[30] It is also relevant to note that the accreditation process was due to be conducted during May 2010 and was to be preceded by updated training for AINs and others.
Conclusions and Findings
[31] The factual matrix of this case is not a complicated one. Ms Azarcon believes that she had an unfettered right to take annual leave once that leave had accrued and she had given Montefiore 28 days notice of her intention to take leave. She further appears to have believed that the lodging of a form requesting leave was more in the nature of a notification to the employer of her intention rather than the making of a request which may be declined. Ms Azarcon further believes that her action in taking the leave, despite the refusal of Montefiore to approve it, was justified as she had already purchased air tickets for herself and her mother and needed to attend to ‘family matters’ in the Philippines. She submits that the subsequent termination of her employment by Montefiore was harsh, unjust and unreasonable. She does not appear to have intended the employment relationship ended. Ms Azarcon does not seek reinstatement but seeks the maximum compensation available under the Act.
[32] Montefiore submits that the collective agreement pursuant to which Ms Azarcon was employed, provides that leave will be taken at times mutually agreed between Montefiore and an employee. That agreement is the Sir Moses Montefiore Jewish Home Union Collective Agreement 2009-2010 (the Agreement).
[33] At subclauses I2b and I2c the Agreement relevantly provides:
“b. Annual Leave shall be taken at a time determined by mutual agreement which meets the needs of the Employer.
c. The Parties shall give at least twenty eight days notice to take Annual Leave. The employee must receive approval from the Employer, whom will not unreasonably refuse any request to take Annual Leave.”
[34] Montefiore submits that it acted reasonably in refusing to grant annual leave to Ms Azarcon in the light of its operational needs and treated her fairly in that it also refused the taking of annual leave by other employees around the same time. It further maintains that Ms Azarcon’s action in absenting herself from work on and after 20 March 2010 amounts to the abandonment of her employment or, in the alternative, provided Montefiore with a valid reason based on misconduct, for the termination of her employment.
[35] In the light of my ultimate finding in this matter, I do not propose to deal further with the abandonment of employment issue. For the purposes of this decision I am satisfied that Montefiore terminated Ms Azarcon’s employment and will now proceed to determine whether there was a valid reason for the termination on the ground of misconduct and then to determine whether the termination of Ms Azarcon’s employment was harsh, unjust or unreasonable.
Valid reason
[36] As Ms Azarcon’s conduct is the reason given by Montefiore for the termination of employment, I have to determine for myself whether the impugned conduct occurred and, if so, whether it amounted to a valid reason for termination of employment. In this regard I respectfully agree with the following observations of the Full Bench in King v Freshmore (Vic) Pty Ltd 21:
“When a reason for a termination is based on the conduct of the employee, the Commission must, if it is an issue in the proceedings challenging the termination, determine whether the conduct occurred. The obligation to make such a determination flows from s.170CG(3)(a). The Commission must determine whether the alleged conduct took place and what it involved.
The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.”
[37] In Container Terminals Australia Limited v Toby 22, a Full Bench of the Australian Industrial Relations Commission said: “In our view, the consideration of whether there was a valid reason for termination is a separate issue from the determination of whether a termination was harsh, unjust or unreasonable…”23
[38] Northrop J in Selvachandran v Peteron Plastics Pty Ltd 24 said:
“In its context in s 170DE(1), the adjective “valid” should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘be applied in a practical, commonsense way to ensure that’ the employer and employee are each treated fairly, ….”
[39] In Qantas Airways Ltd v Cornwall 25, the Full Court of the Federal Court said:
“The question is whether there was a valid reason. In general, conduct of that kind would plainly provide a valid reason. However, conduct is not committed in a vacuum, but in the course of the interaction of persons and circumstances, and the events which lead up to an action and those which accompany it may qualify or characterize the nature of the conduct involved.”
[40] In Edwards v Justice Giudice 26, Moore J said:
“The reason would be valid because the conduct occurred and justified termination. The reason might not be valid because the conduct did not occur or it did occur but did not justify termination.”
[41] After a thorough review of the transcript, witness statements, oral evidence and materials, I find that Ms Azarcon’s action in absenting herself from the workplace on and after 20 March 2010 amounted to misconduct. The refusal of her leave application was lawful within the terms of the Agreement and reasonable in all the circumstances applying at the Nursing Home at the relevant time. In saying this, I am not without sympathy for Ms Azarcon’s situation and the difficulty which Montefiore’s refusal of leave caused her. However, her action in refusing to obey a lawful direction still constitutes misconduct. Where there is conflict between the evidence of Ms Azarcon and that of Ms Venman or Ms Santikos, I prefer the evidence of Ms Venman and Ms Santikos. Accordingly, I find that there was a valid reason for the termination of Ms Azarcon’s employment.
Harsh, unjust or unreasonable
[42] I now turn to the question of whether the dismissal of Ms Azarcon was harsh, unjust or unreasonable. Section 387 of the Act provides:
“387 Criteria for considering harshness etc.
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.”
[43] In Byrne v Australian Airlines 27, McHugh and Gummow JJ of the High Court said:
“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.”
[44] The question of valid reason is dealt with above.
[45] It is apparent from the materials and evidence that Ms Azarcon was notified of the reason(s) for the termination of her employment and I so find.
[46] It is further clear on the materials and evidence that she was not given an opportunity to respond and I so find. However, this finding must be placed in the context of Ms Azarcon being warned on 19 March 2010 that her employment would be in danger should she absent herself from the workplace without permission.
[47] Given my finding concerning an opportunity to respond, the provision relating to the presence of a support person is not relevant to my consideration.
[48] Ms Azarcon’s dismissal did not relate to unsatisfactory performance so this provision of s.387 of the Act is not relevant to my consideration.
[49] The size of the employer’s enterprise is a factor which is likely to have impacted on the procedure followed in effecting Ms Azarcon’s dismissal. Here, I have taken account of the existence of internal human resources personnel within Montefiore.
[50] It is not in issue that Montefiore employs dedicated human resources management specialists or possesses expertise within the enterprise relating to human resources management and I so find.
[51] Taking into account all of the factors above, together with Ms Azarcon’s age, personal circumstances both at present and at the time of the dismissal and her employment prospects, I find that the termination of her employment was not harsh, not unjust and not unreasonable. Accordingly, Ms Azarcon’s application for relief is dismissed. I further find that each party has been given a ‘fair go all round’ in the making of this decision.
[52] An order reflecting this decision is in PR504868.
COMMISSIONER
Appearances:
H Azarcon, the Applicant.
C Spruce, of Counsel, with R Crofts, for Sir Moses Montefiore Jewish Home.
Hearing details:
2010.
Sydney:
October 8;
November 26.
1 Exhibit Azarcon 1.
2 Transcript PNs243-251.
3 Transcript PN253.
4 Transcript PNs258-259.
5 Transcript PN273.
6 Transcript PN291.
7 Transcript PNs315-316.
8 Transcript PNs325-326.
9 Transcript PN334.
10 Transcript PN338.
11 Transcript PNs341-346.
12 Transcript PNs349-350.
13 Transcript PNs382-388.
14 Transcript PN402 and following.
15 Exhibit Montefiore 1.
16 Transcript PN476.
17 Transcript PN486.
18 Exhibit Montefiore 2.
19 Transcript PN539.
20 Transcript PN540.
21 Print S4213, 17 March 2000.
22 Print S8434, 24 July 2000.
23 Ibid at para 15.
24 (1995) 62 IR 371 at 373.
25 [1998] FCA 865.
26 [1999] FCA 1836.
27 (1995) 185 CLR 410.
Printed by authority of the Commonwealth Government Printer
<Price code C, PR504867>
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