Karen Albert v Techni-Clean Australia
[2011] FWA 2665
•12 MAY 2011
[2011] FWA 2665 |
|
DECISION |
Fair Work Act 2009
s 394—Unfair dismissal
Karen Albert
v
Techni-Clean Australia
(U2010/12795)
DEPUTY PRESIDENT SAMS | SYDNEY, 12 MAY 2011 |
Application for unfair dismissal remedy - unsatisfactory performance - breach of respondent’s policies - valid reasons for dismissal - lack of procedural fairness - reinstatement inappropriate - modest compensation order.
[1] This decision will determine an application for an unfair dismissal remedy, filed by Ms Karen Albert(‘the applicant’), pursuant to s 394 of the Fair Work Act 2009(‘the Act’). The applicant was dismissed from her employment as a Graffiti Removalist by Techni-Clean Australia Pty Ltd (‘the respondent’), on 15 September 2010. As a conciliation conference on 20 October 2010 failed to settle the applicant’s claim, it proceeded to arbitration.
BACKGROUND
[2] The applicant had worked in the industry of graffiti removal for the past five years. She worked as a Grade 1 Graffiti Removalist for the respondent from June 2009, after her previous employer, Urban Maintenance Services (‘UMS’), lost the City of Sydney Council contract and 15 employees of UMS were retained by the respondent. The applicant’s letter of dismissal, dated 15 September 2010, was expressed as follows:
Dear Karen,
Re: Non-Compliance with Company Policy and Procedures
Upon commencement of employment at Techni - Clean Australia, you signed the Company Policies which detail standards to which all those involved in the company, must adhere to. As an employee of Techni - Clean Australia, it is your responsibility that these Policy and Procedures are conformed to on a daily basis. It has been noted by your Supervisors and Senior Management that you have been in breach of some of the Company’s Policy and Procedures relating to Employee Performance, Occupational, Health and Safety, Training, Motor Vehicles and Employee Behaviour. It is a requirement of your position that you act in accordance with these policies. Non-compliance or breach of Techni - Clean Australia’s Policy and Procedures may result in termination of employment, depending on the severity of reoccurrence of these actions.
Since July 2010, there has been various occasions where your Supervisor has offered you additional training on how to improve your performance and enhance your skill set, submit the daily paperwork and using plant and equipment correctly. It has been noted that on more then [sic] one instance, you have refused to participate in the required training or have not demonstrated the new skills or procedures implemented into the workplace which has resulted in a decrease in your performance level. Management would also like to remind you that under no circumstances are employees to remove company property from the premises without permission by Senior Management. It has been noted that you took home company property this week and on the 24th August 2010.
Due to the matter mentioned above regarding non-compliance and breach of the Company’s Policy and Procedures, Senior Management has made the decision to terminate your employment with Techni - Clean Australia, effective immediately. It is Techni - Clean Australia’s responsibility to provide you with two (2) weeks termination notice. Techni - Clean Australia has elected to pay out your notice period at your usual hourly rate of pay. Please return all property of Techni - Clean Australia to Nathan Lawrence. Please note that pay will be withheld until all property is returned.
If you have any questions regarding any employment matters, please contract Human Resources on 02 9648 5022.
Kind Regards,
Michelle Graham
General Manager
[3] While the above letter terminating the applicant’s employment is not particularly specific, it would appear from other material filed in this case, that the applicant was dismissed for poor performance in that it was alleged that she:
(a) Took excessive sick leave;
(b) refused to participate in graffiti removal training as she claimed to prefer working alone;
(c) failed to comply with the respondent’s paperwork policy, (despite undergoing training) in that she consistently produced incorrect Bill Poster Incident Reports with incorrect street names, precincts, photo numbers and type of work; and
(d) received a formal warning concerning her not holding a manual licence;
(e) received a second formal warning for failing to properly record her hours of work;
(f) removed the respondent’s property on two occasions, without approval.
THE APPLICANT’S CASE
[4] The applicant relied solely on her response to the above allegations in her originating F2 application. She said she had worked in the industry for five years, including driving gators (a medium-sized utility vehicle), and had never received any complaint about her performance or behaviour. She had never refused extra work. The applicant claimed that, in respect to her taking of excessive sick leave, she had always provided a medical certificate.
[5] The applicant said that when she was contacted by Mr Nathan Lawrence, Assistant Operations Manager, on 24 August 2010, concerning a missing fuel card, she discovered it in the pocket of her work clothes and returned it immediately. Similarly, when she discovered a work camera in her pocket when she was changing at home, she did not report it to the respondent, but returned the camera the next day.
[6] The applicant maintained that the respondent had never told her that there was an issue with her work performance and the only occupational health and safety issue she had was in respect to the faulty performance of a gator she was required to operate. She had told Mr Lawrence many times of its fault, but nothing was done. On 15 September 2010, she complained again that the gator was unsafe, because it kept breaking down.
[7] The applicant insisted that she had never refused to undertake any training. On 15 September 2010, Mr Will Lindsay, Training, Compliance and Occupational Health and Safety Officer, had met with the applicant in the field for training purposes. He asked her to remove graffiti from a nearby Roads and Traffic Authority (RTA) box. The applicant said she had a disagreement with him about what chemical to use and she mistakenly used a low strength chemical which was not strong enough to do the job. As a result, Mr Lindsay failed her on this job.
[8] Further, the applicant complained that she felt victimised and harassed by Mr Lawrence since the day the respondent took over the Sydney City Council contract; so much so she had filed a grievance against him. She said that he would speak to her in a very rude and abrupt manner and was always trying to belittle and humiliate her. He would often refer to her as “grandma” or the “old girl”. She had felt old, useless and unworthy and stupid. She lost self esteem and confidence. The applicant claimed that a senior manager had agreed with her that Mr Lawrence was inexperienced due to his age and the Company was working on improving his managerial skills.
[9] In oral submissions, the applicant said that on 15 September 2010, (the same day as Mr Lindsay’s onsite visit), she had asked Ms M Graham, the Managing Director, why she had not received a pay rise. The applicant said about half an hour later she was called to the office and dismissed during a half hour meeting. She was not told of the purpose of the meeting and was not offered a support person to be present. She agreed she was asked to give an explanation for her behaviour and reminded of two earlier warnings about a manual licence and work hours. However, she declined to respond any further and left the meeting.
[10] The applicant seeks $5,000.00 in compensation for her alleged unfair dismissal and said that since her dismissal she had been unemployed. She had applied for 15 - 20 jobs unsuccessfully and undertaken further TAFE training.
THE RESPONDENT’S CASE
[11] Of the five witness statements relied on by the respondent, only Mr Lindsay was required by the applicant for cross-examination. I will come to his evidence shortly.
[12] Mr John Walkom is the respondent’s Chief Executive Officer (CEO) and co-owner of the Company. His contact with the applicant was minimal, but he had been made aware that the applicant was not as competent as she had made out when she was first employed by the respondent. It was decided that the applicant should focus on removing posters until further training was undertaken on graffiti removal. However, she refused to undertake training and cited the following reasons for deciding not to do so:
- It was not fair;
- She knew how to paint; and
- She did not need training.
Mr Walkom had explained to the applicant that there was a need for her to receive additional training and for her work to be regularly monitored.
[13] Ms Michelle Graham is the respondent’s General Manager. She had been advised that the applicant’s work performance was below standard and that she had continually refused training by saying she preferred to work alone. Ms Graham said that she had also been advised that the applicant took Company property home without approval, despite ‘tool box’ training sessions concerning the respondent’s policies.
[14] Ms Graham was made aware that the applicant believed Mr Lawrence had no respect for her. Conversely, Mr Lawrence had also raised her disrespect towards him.
[15] Ms Graham said that during the applicant’s performance review, she was asked why she did not drive large vehicles or perform graffiti removal. She replied that she did not feel comfortable driving larger vehicles. Ms Graham told her that she was required to drive all of the respondent’s vehicles. The applicant had also said she was as good as her other peers, regardless of any performance review.
[16] Ms Graham said that on the day the applicant was dismissed she was made aware that the applicant had taken a camera home at the end of her shift. As it was a contractual requirement that all tasks are photographed “before and after” and there was a potential for loss of data, the respondent considered this a serious breach of Company protocol. Ms Graham said that she raised these matters with the applicant in the dismissal meeting. However, given the applicant’s history, her employment was to be terminated. When asked to respond, the applicant declined and immediately left the meeting.
[17] Ms Graham deposed that, as the respondent’s General Manager, she had a duty of care to all employees and clients. The applicant was dismissed for her constant breaches of policy and procedures, the poor effect on workforce morale - as she was argumentative towards supervisors and colleagues - and that she had already received two previous written warnings.
[18] Ms Ashleigh Jonesis the respondent’s Human Resources Manager. Ms Jonesconfirmed that the applicant had received two written warnings on 4 August 2010, for failing to comply with the respondent’s vehicle policy by not holding a manual driver’s licence and on 18 February 2010, concerning a dispute over hours of work. She had also taken 29 days personal leave since January 2010 and a further three days of approved leave.
[19] Ms Jonessaid that in the applicant’s performance review in July 2010, it was noted that she needed improvement. As a result, no pay rise was recommended.
[20] Ms Jonesconfirmed that the applicant had lodged a victimisation grievance against Mr Lawrence on 13 August 2010.
[21] Annexed to Ms Jones’statement were the following documents:
- The applicant’s training register demonstrating that she had received and signed for an induction kit before commencing employment;
- ‘before and after’ photos of graffiti work undertaken by the applicant;
- The respondent’s Vehicle and Driving Policy;
- The respondent’s Unethical Work Practices Policy;
- The applicant’s last performance review.
[22] Mr Nathan Lawrence, Assistant Operations Manager, was the applicant’s immediate supervisor. He had conducted training for the applicant on 22 July 2010, and observed her poor work on graffiti removal. Mr Lawrence attended a grievance meeting on 13 August 2010, with the applicant, concerning her allegations of harassment and bullying by him. Mr Lawrence denied her allegations and said he was unaware that his actions had offended her and were not aimed at her.
[23] Mr Lawrence said that as part of his role, he was required to conduct random checks of employees to ensure compliance with the Sydney City Council contract. He said that he had identified training required for the applicant, but she had refused to participate on several occasions. Mr Lawrence claimed that the applicant would consistently raise incidents of workplace harassment and gave the following examples:
- 19th February - Ms Albert was asked about her timings in relations [sic] to her photos taken. Ms Albert claimed that this was workplace harassment;
- 22nd July - Ms Albert was shown paper work, again said to me verbally that this is workplace harassment;
- 16th August - Ms Albert put a grievance in against me, as she didn’t like myself checking her work.
[24] Mr Will Lindsay, Training, Compliance and Occupational Health and Safety Officer, outlined the training undertaken by the applicant. He believed that the applicant’s ‘paperwork’ and her adherence to occupational health and safety requirements, were below standard. Mr Lindsay conducted a practice exercise with the applicant on removing graffiti from an RTA box. The task was not performed satisfactorily. Mr Lindsay said that he had carried out a range of graffiti removal work from January 2010 and the task the applicant performed was “easy.”
[25] Mr Lindsay provided a table of the applicant’s strengths and weaknesses which arose from her performance review. It demonstrated as follows:
STRENGTHS | WEAKNESSES |
Knowledge of the city | Correctly identify removal method |
[26] In submissions, Ms Graham, relied on the respondent’s evidence to refute the applicant’s claims that she:
- was never advised that her poor performance was an issue;
- had not refused to undertake training;
- was directed to drive an unsafe work vehicle.
As to the last point, Ms Graham said that all of the respondent’s vehicles undergo regular maintenance checks by licensed mechanics and all vehicles are registered and considered roadworthy by the RTA. Ms Graham noted that on one occasion, when the applicant complained about gear change difficulties, the vehicle was driven around the block and found to have no problems.
[27] Ms Graham submitted that the applicant’s health was not a reason for her dismissal. However, Ms Graham conceded that the applicant was not advised of the reasons for the meeting at which she was dismissed, nor had she been offered a support person to attend the meeting with her. However, the applicant was offered an opportunity to refute or explain the allegations, but she had refused and abruptly left the meeting.
CONSIDERATION
Preliminary issues
[28] At the conclusion of both parties’ submissions, and given the admissions of the respondent to which I have noted earlier at par 27, it appeared to me that it may well have been possible to have resolved this application. With this in mind, I took the very unusual step of conducting a conciliation conference at the conclusion of the case. However, this conference did not resolve the matter and I thereupon reserved my decision.
[29] Both parties appeared unrepresented in these proceedings. This created the usual difficulties experienced by unrepresented litigants; although, thankfully, the case was not prolonged by unnecessary or irrelevant evidence. Indeed, as mentioned earlier, the applicant only required Mr Lindsay for cross-examination and only on one point which was not directly relevant to the substantive issues required to be considered by the Tribunal. Moreover, the respondent did not seek to cross-examine the applicant, at all, on her only statement; being her originating F2 application.
[30] As a result, this was truly a case devoid of legal technicalities or complexity. No authorities were cited by either party in support of their respective positions. Nevertheless, I am satisfied that both parties were provided with every opportunity to put whatever they wished to say in support of their respective positions. In some respects, the parties’ approach provided a refreshingly brief and focused explanation of the issues which must ultimately be determined by Fair Work Australia (FWA), according to the statutory requirements under the Act. It is to these matters which I now turn.
Legislation and Principles
[31] There is no doubt that the applicant was a person protected from unfair dismissal (s 382 of the Act); had been dismissed by the respondent on 15 September 2010, and that her dismissal was not one involving a genuine redundancy (s 385 (d) of the Act). Accordingly, this application for an unfair dismissal remedy, is competently before FWA. I proceed to consider the matter on that basis.
[32] In determining this application, the Tribunal is obliged to take into account all of the matters identified in s 387 of the Act. That section is expressed as follows:
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.
[33] Before applying the above criteria to the instant case before me, I remind the parties of a few of the relevant authorities applicable to a matter such as this. I do this so that they may be helped to understand the basis upon which my ultimate findings are made. The meaning of ‘harsh, unreasonable or unjust’ is found in Byrne & Frew v Australian Airlines Ltd (1995) 185 CLR 410:
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.
[34] Section 387(a) of the Act requires the Tribunal to make a finding as to whether there was a valid reason for the applicant’s dismissal. The meaning of the adjective ‘valid’, in this context, can be found in Selvechandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, where North J 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 reasons 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 treated fairly.
[35] Underpinning the Tribunal’s consideration of any unfair dismissal matter, is the principle found in s 381(2) of the Act, commonly referred to as ‘the fair go all round’ test:
(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a “fair go all round” is accorded to both the employer and employee concerned.
[36] As will become evident shortly, the question of procedural unfairness is a relevant consideration in this case. In this regard I refer to the decision of Moore J in Wadey v YMCA Canberra [1996] IRCA 568, 12 November 1996, as to the right of an employee to appropriately defend himself or herself against allegations made by an employer:
In my opinion the obligation imposed on an employer by that section has, for present purposes, two relevant aspects. The first is that the employee must be made aware of allegations concerning the employee's conduct so as to be able to respond to them. The second is that the employee must be given an opportunity to defend himself or herself. The second aspect, the opportunity to defend, implies an opportunity that might result in the employer deciding not to terminate the employment if the defence is of substance. An employer may simply go through the motions of giving the employee an opportunity to deal with allegations concerning conduct when, in substance, a firm decision to terminate had already been made which would be adhered to irrespective of anything the employee might say in his or her defence. That, in my opinion, does not constitute an opportunity to defend.
[37] Nevertheless, it must be steadily borne in mind that not all procedural defects, either singularly, or in combination, will result in the Tribunal finding that a particular dismissal is procedurally ‘harsh, unreasonable or unjust’. Put another way, the seriousness of the proven allegations will not always be outweighed by any identified procedural fault/s. In this respect, I refer to a decision of the Full Bench of the AIRC in Farquharson v Qantas Airways Limited[2006] AIRC 488 at par [41]:
The fact of unfairness in the employer’s decision making process, even if it involves a breach of a term in a certified agreement, is but a factor to be taken to account in determining whether a termination of employment was harsh, unjust or unreasonable. In circumstances where, as here, the merits of a termination of employment based on misconduct have been the subject of a full hearing in the Commission (in which the employer must establish the alleged misconduct on the balance of probabilities) and the dismissal has been found to be justified, it will be rare for a defect in an internal disciplinary process that preceded the termination justifying a conclusion that the termination was harsh, unjust or unreasonable. This is so because, almost invariably in such circumstances, it may be inferred that the outcome of the disciplinary process would have been the same even if there had been no such defect.
[38] That said, the issues in this case are relatively straightforward. In my judgment, the applicant seems to have a somewhat inflated view of her own capabilities. She was reluctant to comply with the respondent’s reasonable policies and had an unhealthy level of disdain for persons in management when she was criticised for not adhering to the respondent’s standards or when directed to engage in retraining to meet these standards.
[39] It is regrettable that the applicant had a somewhat misguided view that she did not need any retraining or that it was unnecessary for her to do so. The evidence does not support her self opinions. However, her views on training are not to the point. Plainly, the respondent had legitimate concerns that her performance was not up to Company standards and despite offering her opportunities to improve, she rejected them out of hand. Perhaps in hindsight, she might still be employed if she had not adopted such a stubborn, unreasonable and negative view of what was expected of her. It must also be emphasised, that previous warnings of poor performance or behaviour, particularly when they occur close in time to the decision to dismiss an employee, cannot be wistfully ignored or said to be irrelevant. If warnings are to have a cathartic impact which hopefully improves the employee’s performance or behaviour, then they must be seen to have a meaningful and demonstrable purpose. It seems to me that this is one of the reasons why the legislature chose to include in the criteria for FWA to consider ‘harshness,’ the requirement to take account of “whether the person had been warned about that unsatisfactory performance before dismissal.” (s 387(e)).
[40] In addition, I do not consider that such warnings must only relate to the same reason as to why an employee may be subsequently validly dismissed. Put another way, continued breaches of Company policies, does not mean each breach can be disaggregated from the employee’s overall behaviour, if earlier warnings related to breaches of different policies. Put simply, it may be that a valid reason for dismissal is the ongoing individual breaches of a number of the Company’s policies. With this in mind, I refer to John Lysaght (Australia) Limited and Federated Ironworkers’ Association of Australia, New South Wales Division & Ors (unreported Sheppard J, Matter 259 of 1972, 14 September 1972), where Sheppard J said:
The union’s argument in relation to this matter is not easy to understand. It suggests that although the record is not a satisfactory one, it should be overlooked because the company, except for a warning and a suspension here or there, allowed it to run on and in effect condoned or waived it. It further says that the record has to be looked at in the light of the fact that there is admittedly a good deal of absenteeism generally in the plant. If one were to take this argument to its full extent, it would involve the union in saying that Mr York should have been dismissed long ago. It is no doubt possible for the company to waive particular acts of misconduct that would otherwise justify dismissal without notice. These particular acts could not subsequently be used for this purpose once a decision was made not to rely on them. The act of misconduct however does not then disappear and become irrelevant when further misconduct occurs. It remains and makes up the continuing history and record of a man’s service. That record may always be referred to for the purposes for which the company now points to it and the presence of incidents such as I have described will always be a relevant factor to be weighed in the balance by an employer when he comes to consider whether or not a further breach or other act of misconduct should not bring about dismissal. This will be all the more so where, as here, the dismissal is upon notice.
[41] In this case, there can be no doubt that there were a number of breaches of the respondent’s policies in addition to the applicant’s reluctance to comply with the reasonable and lawful expectations of the employer. In these circumstances, it would seem unlikely that her dismissal would be found not to be for a valid reason. In my assessment, the respondent had valid reasons for the applicant’s dismissal and, accordingly, the essential criteria of s 387 of the Act have been satisfied. Viewed objectively, the respondent’s decision was not capricious, fanciful, spiteful or prejudiced. That said, however, I am not so sure that subsections (b) (c) and (d) of the Act were similarly satisfied.
This is so because it is not disputed by the respondent that:
(a) On 15 September 2010, the applicant was called at short notice to a meeting which was to discuss her future employment with the respondent. The meeting was attended by Ms Jonesand Ms Graham;
(b) the applicant was not made aware of the purpose of the meeting i.e. her dismissal;
(c) the applicant was not invited to have a support person present at the meeting.
As these are uncontested findings of fact, it must logically mean that the applicant was denied procedural fairness in the manner in which she was dismissed. I find accordingly. Nevertheless, it is also open for me to conclude that the applicant was well aware her performance was being monitored, as she had even expressed the view, some time earlier, that she felt her employment was in jeopardy, albeit for different reasons from her perspective. That said, in any view, s 387(b) of the Act was not expressly or properly complied with. The applicant was asked to respond to the allegations in circumstances where she was not told she was to be dismissed. In my opinion, she would have had no opportunity, let alone a reasonable one, to properly respond to the allegations. This was contrary to the requirements of s 387(c) of the Act. It is perhaps little wonder that she did not respond and abruptly left the meeting.
[42] By adopting a literal reading of the words of s 387(d) of the Act, it seems clear enough that a failure to comply with the subsection arises when the employer unreasonably refuses to allow a support person to be present. Thus, it would seem that an adverse finding against an employer, in this respect, must be predicated on the employee actually asking for a support person. In this case, the evidence was that while she was not invited to have a support person present, she had not asked for one. Strictly then, the subsection was complied with, but I do not believe this was consistent with the spirit or intent of the subsection. It would have been far more preferable for the respondent to have invited her to have a support person present. Even so, in the circumstances, she would have had little, or no opportunity to do so, given the short notice she had of the meeting. This was also a procedural fault.
[43] I am satisfied that the applicant was warned of her unsatisfactory performance and she failed to heed these warnings or take steps to address her shortcomings when offered to her (s 387(e) of the Act). I do not consider the size of the respondent’s enterprise is particularly relevant to this matter: see s 387(f). Given my earlier comments on procedural unfairness, it is curious that a dedicated human resource person (Ms Jones) would not have been alert to the obvious procedural faults in the process of the applicant’s dismissal; a fortori considering Ms Jones actually attended the dismissal meeting.
[44] Other matters I consider pertinent and relevant to this matter have been discussed earlier. In addition, I note the applicant’s short length of service (15 months), her age, qualifications and difficulties finding alternative employment (s 387(h) of the Act).
[45] For the aforesaid reasons, I find that the applicant’s dismissal was procedurally unfair in that it was unjust. I conclude that reinstatement of the applicant is inappropriate (s 390(3) of the Act) and indeed it is not sought by the applicant. I propose to make a modest order of compensation after taking into account the criteria for awarding compensation in s 392(2) of the Act, which are as follows:
(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that FWA considers relevant.
[46] The order I propose to make will have no impact on the viability of the respondent’s enterprise. I have also had regard for the applicant’s short period of employment. Given the respondent’s frustration with the applicant’s attitude to her work, her failure to improve her performance and the incidents of failing to comply with the respondent’s policies and procedures, (although most are relatively minor), I think it unlikely the applicant would have lasted very much longer in the job; probably, at best, another few weeks. I accept the applicant has made attempts to mitigate her loss. There was no suggestion of her obtaining other work since her dismissal, but, in any event, I would not discount the amount I propose to order on that account. Having regard for all the relevant circumstances and the necessary statutory requirements, particularly the “fair go all round” principle, I propose to order that the applicant be paid an amount of compensation of two weeks wages. An order to that effect will be published contemporaneously with this decision.
DEPUTY PRESIDENT
Appearances:
Ms K Albert (unrepresented)
Ms M Graham and Ms A Jones for the respondent (unrepresented)
Hearing details:
2011
Sydney
10 February 2011
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