Jessica Vidacic v Foxtons Estate Agents

[2010] FWA 8838

Note: An appeal pursuant to s.604 (C2010/5738) was lodged against this decision - refer to Full Bench decision dated 18 March 2011 [[2011] FWAFB 1679] for result of appeal.

[2010] FWA 8838

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jessica Vidacic
v
Foxtons Estate Agents
(U2010/1134)

COMMISSIONER BISSETT MELBOURNE, 25 NOVEMBER 2010

Application for unfair dismissal remedy.

[1] This is an application under s.394 of the Fair Work Act 2009 (the Act) by Ms Jessica Vidacic (the Applicant) alleging that she was unfairly dismissed from her employment.

[2] Ms Vidacic’s application was lodged against Foxtons Estate Agents. It became apparent during the course of the matter that the employer’s registered name is Tobiahs Pty Ltd t/as Foxtons Estate Agents. This decision and any related orders shall apply to Tobiahs Pty Ltd t/as Foxtons Estate Agents.

[3] Ms Vidacic was employed by Foxtons Estate Agents (Foxtons) (the Respondent) as a Property Manager. In this role she was responsible for managing about 300 properties. She commenced employment on 27 May 2009.

[4] Ms Vidacic went on annual leave for two weeks, returning to work on 5 July 2010. 1 On her return she was advised by Mr Fakhri of the Respondent - who at the time she understood to be a business partner and Property Manager but is now a Director of the company2 - to meet with him at 4.00pm.3 When she met with him, her evidence is that:

He handed me the termination letter and just said - didn’t give me a reason as to why. Said, “There was a few complaints”, but didn’t want to go into any detail. Then I’d said to him that I wouldn’t actually be coming in tomorrow because I wasn’t sure legally, I wanted some advice. 4

[5] Ms Vidacic gave evidence that she was not aware of any complaint against her. 5

[6] Ms Vidacic filed her application for unfair dismissal with Fair Work Australia on 19 July 2010. She named Mr Patrick Rahme as the contact person at Foxtons. Mr Rahme was at some stage a Director of the company that traded as Foxtons Estate Agents. He had signed Ms Vidacic’s employment contract in 2009 and still worked at the company at the time Ms Vidacic’s employment was terminated.

[7] The file was forwarded to a Fair Work Australia conciliator. The Respondent advised Fair Work Australia that it did not intend to participate in the conciliation process.

[8] Directions were therefore issued for the filing and serving of submissions and witness statements by the Applicant and Respondent. This material was again sent to Mr Rahme for the Respondent.

[9] The Respondent failed to file any submissions or evidence in this matter. It also failed to attend the hearing. Attempts to contact Mr Rahme at the time of the hearing were not successful. There is no doubt however, through email contact with Fair Work Australia, that he was aware of the proceedings.

[10] Ms Vidacic’s evidence and submissions are uncontested.

Was Ms Vidacic unfairly dismissed?

[11] Ms Vidacic was dismissed from her employment. She was employed for greater than 12 months.

Was there 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)?

[12] Ms Vidacic was told that there had been complaints about her from clients and was then provided with a termination letter. 6 The Respondent refused to detail those complaints.

[13] For there to be a valid reason for the termination of employment that reason must be ‘sound, defensible or well founded’. 7 The absence of any evidence of the reason for the termination of Ms Vidacic’s employment - beyond a statement that there had been ‘complaints’ - strongly suggests that there is no sound or defensible or well founded basis for the termination of employment.

[14] The termination of Ms Vidacic’s employment can only be described as a capricious act of her employer, completely without foundation.

[15] With no evidence of failings in Ms Vidacic’s capacity and/or conduct I find that there was no valid reason for the termination of Ms Vidacic’s employment.

Was the person was notified of that reason?

[16] Ms Vidacic was told that the reason her employment was terminated was that there had been complaints from clients. The Respondent refused to detail these complaints either by reference to the conduct complained of or by detail of the circumstances which gave rise to the complaints.

[17] To not advise Ms Vidacic of the reason for the termination of her employment was to deny her basic procedural fairness.

[18] I find that Ms Vidacic was not advised of the reason for the termination of her employment.

Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[19] The Respondent refused to detail the complaints from clients. I find that Ms Vidacic was denied the opportunity to respond to the reason for the termination of her employment.

Unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal

[20] Ms Vidacic was not told the reason of the meeting nor asked if she wished to have a support person present. 8

[21] The Respondent knew well what he intended to do at the meeting. He came prepared with a letter advising Ms Vidacic that her employment was to be terminated. Not only did he deny her the right to know the allegations against her and to respond to these, but, by not advising her of the reason of the meeting he unreasonably refused her the right to have a support person present.

The degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal

[22] The Respondent failed to participate in any proceedings relating to this application. An assessment of the size of the undertaking and the effect this may have had on the procedures followed would be purely speculative.

[23] All that can be said is that it appears from the business’ website that there are three Foxton’s Estate Agents offices. The size of these, the number and the make up of staff is not known.

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

[24] Again, the refusal of the Respondent to participate in these proceedings would make an assessment of this speculative. Evidence from the Respondent is required to make any meaningful determination of the issue.

Any other matters that FWA considers relevant

[25] There is nothing in the manner and behaviour of the employer in terminating Ms Vidacic’s employment that has any merit. Her treatment at the hands of the Respondent denied her any procedural fairness.

[26] The Respondent has had total disregard for these proceedings, for the legislation that governs these matters and for the right of Ms Vidacic to dispute the termination.

Harsh, unjust or unreasonable

[27] I find that the termination of Ms Vidacic’s employment was harsh, unjust and unreasonable. There is no evidence on which I could decide otherwise.

Conclusion

[28] Ms Vidacic was unfairly dismissed. An Order to this effect will be issued.

Remedy

[29] Ms Vidacic does not seek reinstatement. I consider that an order for compensation in lieu of reinstatement is appropriate in all of the circumstances.

[30] Prior to determining an amount of compensation I forwarded by registered mail to Mr Rahme, Mr Fakhri, who is now listed as a Director of Tobiahs Pty Ltd t/as Foxtons Estate Agents and to the Registered Office of Tobiahs Pty Ltd t/as Foxtons Real Estate a copy of the transcript of the proceedings in this matter.

[31] I advised each of the addressees that I was considering an order of compensation to Ms Vidacic and indicated a willingness to consider any submissions they should seek to make with respect to such an order. I provided seven days within which they could do so.

[32] The letter addressed to Mr Rahme was returned with an indication that he was no longer at that address. The correspondence to the Registered Office of Tobiahs did not elicit a response.

[33] Mr Fakhri responded on 19 November 2010, in which he raised matters associated with Ms Vidacic’s termination. These are matters that should have been placed before Fair Work Australia in determining if Ms Vidacic had been unfairly dismissed. The Respondent chose not to do so and as such has denied the Applicant the capacity to test the truthfulness or otherwise of claims made by it. I note that some of the matters raised in the Respondent’s letter are contradicted by evidence placed before Fair Work Australia. In any event, the Respondent’s material does not go to matters of compensation (except perhaps the conduct of the employee).

[34] I have, as is relevant, considered the material from the Respondent.

Compensation

[35] Ms Vidacic’s evidence is that, had she not had her employment terminated, she would have remained in employment with Foxtons for the next three to four years. 9 There is no reason to doubt this.

[36] She has been seeking work but has to date been unsuccessful. 10 I note that the Respondent suggests there are ‘property manager jobs available around the clock’11 but provides no evidence of this.

[37] At the time of her dismissal Ms Vidacic was earning $47,706.42 per annum.

[38] In considering the amount of compensation that should be ordered to Ms Vidacic I have had regard to all of the matters in s.392(2) of the Act. In particular I have considered:

a. Her length of service with the Respondent. I find that she would have remained there for another 3 years;

b. What she would have earned had she not been dismissed;

c. That she has taken steps to mitigate her loss - that she has sought (unsuccessfully to date) alternative employment since the time of the termination of her employment;

d. That the Respondent has refused to participate in these proceedings.

[39] I have received nothing to suggest the effect of any order I may make on the viability of the employer.

[40] Whilst Ms Vidacic has not been able to secure employment as yet I am confident she will do so. She has worked for many years in property management.

[41] I have found no misconduct on the part of the Applicant that suggests the need to reduce the amount of compensation and I have not included any component for shock, humiliation or distress.

[42] The unwillingness of the Respondent to appear before Fair Work Australia in this matter, to provide any defence to the application, or to provide any information to the Applicant to justify its decision to terminate her employment make this a very serious case. The statutory protections from unfair dismissal exist to protect employees from capricious behaviour of employers. The behaviour of the employer in this instance can only be described as such.

[43] The purpose of s.392(5) and (6) of the Act is not to set six months’ remuneration (or half the high income threshold) as a maximum amount of compensation that is warrantedin any particular circumstances but rather to say that, having determined what amount of compensation is warranted, this amount must be reduced so that it does not exceed the statutory cap.

[44] Ms Vidacic’s earning over six months is $23,853.21. This is the cap that is to be placed on the compensation awarded.

[45] In all of the circumstances of this case it is appropriate that Ms Vidacic be awarded the maximum amount possible. I therefore determine that Ms Vidacic be paid an amount of $23,853.21 in lieu of reinstatement.

[46] An Order requiring payment of this amount to Ms Vidacic by Tobiahs Pty Ltd t/as Foxtons Estate Agents will be issued today. It will be sent to both Mr Fakhri as a Director of Tobiahs Pty Ltd t/as Foxtons Estate Agents and to the Registered Office of Tobiahs Pty Ltd.

COMMISSIONER

Appearances:

J. Vidacic, on her own behalf

Hearing details:

2010.

Melbourne:

8 November.

 1   Exhibit A1 paragraph 5.

 2   Transcript PN52 & 55.

 3   Exhibit A1 paragraph 7.

 4   Transcript PN59.

 5   Transcript PN71-2.

 6   Exhibit A1 paragraphs 10-11.

 7   Selvachandran v Petron Plastics Pty Ltd (1995) 62 IR 371, 373.

 8   Exhibit A1 paragraphs 8-9.

 9   Transcript PN86.

 10   Transcript PN91.

 11   Respondent correspondence, 15 November 2010.

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