Kate Clift v Tony's Wholesale Flowers Pty Ltd
[2022] FWC 2559
•7 OCTOBER 2022
| [2022] FWC 2559 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Kate Clift
v
Tony's Wholesale Flowers Pty Ltd
(U2022/5576)
| COMMISSIONER HAMPTON | ADELAIDE, 7 OCTOBER 2022 |
Application for an unfair dismissal remedy – contest over the reason for dismissal – issue determined based upon direct evidence before the Commission – whether dismissal unfair – whether valid reason – not a valid reason within the meaning of s.387(a) of the Act – proper business grounds for dismissal based upon objective evidence – manner of dismissal unreasonable and not justified – dismissal unfair – compensation to be awarded – parties to agree compensation or provide further evidence and submissions – liberty to apply also granted.
What this decision is about
This decision concerns an application by Ms Kate Clift (Applicant) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (Act). Ms Clift had been employed as a Production Worker with Tony’s Wholesale Flowers Pty Ltd (Tony’s Flowers or Respondent), which is a wholesale supplier of flowers. Ms Clift commenced employment as a casual Production Worker with Tony’s Flowers on 26 August 2020.
The termination of Ms Clift’s employment was communicated to her by email on 4 May 2022. It is uncontested that the dismissal occurred on that date. The dismissal took place in the context of the Respondent’s stated view that “the event season is coming to an end”, and that there was no work available for the Applicant. The email dismissing Ms Clift also simultaneously communicated the dismissal of 2 other employees.
Ms Clift disputes this claimed basis, contending she was employed for “ongoing factory fulfilment requirements”, and that she was dismissed due to “taking unplanned leave/not being able to attend rostered shifts”.
The s.394 application in this matter was lodged with the Fair Work Commission (the Commission) on 20 May 2022.
The Commission conducted an MS Teams Video Hearing to determine the merits of the application. Ms Clift was represented by Mr Artemis Vasilaras of Vasilaras + Co Lawyers, and Ms Kim Dinh of Employsure Law represented the Respondent. In each case permission was granted.
There were no jurisdictional barriers to the application being heard and determined on its merits.
For reasons that follow, I have determined that the dismissal of Ms Clift was unfair and that a measure of compensation should be awarded. The basis of those findings is set out in the Decision that follows.
The cases presented by the parties
2.1Ms Clift
In her originating application, Ms Clift contends her dismissal was unfair for the following reasons:
“• The event season in question was not what I was hired for it was just ONE of the events that Tony’s flowers was going through.
· I worked with this company since July 2020 for ongoing factory fulfilment requirements and was Employed through all seasons throughout the years.
· My hours were consistent and systematic and there was indication that would continue as there is always ongoing work available.
· The dismissal took place immediately after a period where I had taken some unplanned leave due to sickness in WC2504 (2x Days) out of 3 shifts that I was rostered for.
· Subsequently the next week I had to take unplanned leave again due to experiencing a home invasion and as a result, experiencing trauma and emotional distress. I did not, however disclose this reason to my employer as I was too emotional to discuss it at the time, so I just took unplanned sick leave to reject the shifts I had. I do have a police report for this instance.
· I had 4 shifts scheduled on WC0205 and I only requested that one day off (that week for the 03/05) not the other 3 shifts that I had rostered which I intended on attending.
· I received a text message on the 3rd May stating that I had been taken off the roster for the rest of the week so I can focus on my recovery, however, then was terminated the next morning 4th May.
· I met the notice period of letting my Employer know that I would not make it in for my shift and followed all the correct procedures.
· I was a dedicated Employee and performed well in my role and there were ongoing systematic shifts due to be given to me on an ongoing basis and do not believe that my Employer terminated me for the lack of work – but rather because of taking this unplanned leave and not being happy about it.
· I was not warned that this was a concern for my Employer in taking unplanned days off/rejecting my shifts as a Casual and this completely took me by shock.
· I have subsequently been left unemployed and under significant financial hardship attempting to find new work since this occurred.”[1]
Ms Clift also contends that the employment contract was not a contract for a specified season, she worked all seasons during her employment, and that the timing of the dismissal was during the Respondent’s busiest week, and before the Mother’s Day “season” had occurred. Ms Clift additionally contends that the Respondent did not consult as required by the relevant modern award and effected the dismissal shortly after she took unplanned leave.
Ms Clift provided a witness statement[2] and provided further sworn evidence.
2.2Tony’s Flowers
The Respondent opposed any remedy sought on the basis that there was a valid reason for the dismissal, and that it was not harsh, unjust, or unreasonable. In support of this position, it submitted that:[3]
Seasonal Work
· Every year the Respondent grows, sources and delivers flowers according to Event Seasons. This corresponds with holidays such as Christmas and annual celebratory days such as Valentine’s Day and Mother’s Day. (Event Season)
· Appropriately, the Respondent therefore requires more staff to be rostered on during these peak periods, as work significantly increases and is readily available.
· Mother’s Day is the busiest time of the year for the Respondent, whereby the flowers are in high demand, however the volume of work significantly drops thereafter.
Dismissal
· Clause 13.1 of the contract states that:
“at any time during the operation of the Contract, either party may terminate your employment without notice or without a payment in lieu of notice.”
· Further, pursuant to s.123 of the Act, a casual employee is not entitled to notice of dismissal.
· On Wednesday, 4 May 2022, the Respondent confirmed with the Applicant that the Events Season has come to an end and advised the Applicant that her employment has ended.
The Respondent also copied another 2 employees into the same email, effectively dismissing all of them on the basis there was no work available because of the 2022 Off Season.
· The Respondent further noted that the Applicant’s details will be kept on file for future events.
Conclusion
· The Applicant was engaged as a true casual because of the seasonal nature of the work.
· As a true casual, the Applicant’s employment ceased at the end of each engagement.
· Following the end of the Events Season, the work available to the pool of casuals decreased.
· The Applicant, along with a number of other casual employees, was informed their engagement had come to an end, however their details would be retained for consideration next Events Season.
The Respondent provided witness statements and led evidence from the following:
· Mr Tristan Smith[4], Production Manager;
· Mr Michael Vallelonga[5], General Manager; and
· Mr Tony Amorico[6], Owner/Director.
Observations on the evidence
With only minor caveats, I found that each of the witnesses in this matter gave their evidence openly and honestly. Each made appropriate concessions and their evidence about facts and events in which they were directly involved, or had direct knowledge about, was convincing.
There are “factual” disputes, however these are largely matters of interpretation of events or based upon each witness’s understanding of the circumstances. To the extent that any of the witness statements expressed views about the proper application of the law or the fairness of the dismissal, these are matters for the Commission itself to determine.
I observe that some statements were made in closing submissions on behalf of Ms Clift that went to additional aspects of bona fides of the claimed reduction in employees at the end of the peak flower production period. These matters were not the subject of any evidence and were not put to the Respondent’s witnesses. I make no criticism of Mr Vasilaras in that regard; however, I must determine this matter based upon evidence that is properly before the Commission, noting that it is the Respondent which bears the onus of demonstrating an objective basis for the dismissal.
The general chronology of events
Ms Clift commenced employment for the Respondent on 26 August 2020. Her employment was governed by a written Employment Contract, dated 21 August 2020, and the Nursery Award 2020 (the Award). The Applicant was employed as a Process Worker on a casual basis.
The Respondent is a fresh flowers provider, specialising in growing, sourcing, importing, bouquet arranging and distributing flowers to Australia’s retailers. Every year the Respondent grows, sources, and delivers flowers according to demand. This demand corresponds with holidays such as Christmas and annual celebratory days such as Valentine’s Day and Mother’s Day.
The requirement for staff varies according to the time of the year and the peaks in connection with the Event Season. The Respondent’s peak period is the week before Mother’s Day, where all of the Respondent’s flower stock and bouquets need to be at the stockists approximately four days prior to Mother’s Day.
The Respondent’s off-season period, where less staffing is required, generally commences when all Mother’s Day flowers have been delivered.
Ms Clift’s employment contract was self-described as being a casual contract and provided that it could be concluded at any time by either party without notice or without a payment in lieu of notice.[7]
Ms Clift was based at the Pooraka production facility of the Respondent. There are some administrative and management functions at that facility; however most administration and management functions are conducted at the Respondent’s head office, located at another site.
There was nothing in the employment contract that expressly limited the employment to seasonal work, such as the event season, or to any other period.
Ms Clift generally worked between 3 and 4 days per week based upon a roster that was published later in the week before it was due to commence. Ms Clift would also work from time to time when specific requests were made for additional or varied shifts. Ms Clift was regularly and systematically employed and had a reasonable expectation of ongoing employment.
In mid-July 2021, the day-to-day planning of the business was heavily impacted due to the COVID-19 Pandemic and consequential events as they unfolded. This included experiencing a shortage of labour due to illness, isolation requirements, and restrictions imposed at the time. Further, supply and distribution chain issues impacted upon the business. I find that the Respondent had significant work at that time and despite the end of the normal Event Season, Ms Clift was requested to and did perform additional administrative work in the role of data entry and associated work at the Pooraka facility. This occurred over “3-4 months” alongside the Applicant’s usual duties in production and filled in what would otherwise have been a period of significant reduction in the amount of production work required within the production facility. The labour shortage continued into October 2021, with the Applicant continuing to be rostered on. This meant that the hours offered to and worked by Ms Clift continued beyond the peak season into the next season.
There is no evidence that Ms Clift was informed that the additional role and work was unusual or that in the normal course her employment would have concluded at the end of the event season. However, the evidence does support the contention that during the 2021 Off-Season, because of the consequences of the COVID-19 pandemic, there was work available to Ms Clift in that period when ordinarily there would have been a significant reduction in the extent of production work and this is what maintained her employment at that time.
On 27 and 28 April 2022, Ms Clift was unable to attend her rostered shifts because she was unwell. Ms Clift (Kate) notified Mr Smith (Tristan) of the Respondent, via text messages[8] as follows:
“Wed, 27 April, 3.53am
Kate: I’ve been vomiting for the last two hours Tristan so I won’t be in today, but I will update you tomorrow how I am.
Tristan:Thanks
Wed, 27 April, 5.09pm
Kate:I’ll be okay for tomorrow
Wed, 27 April, 7.49pm
Tristan:6am start tomorrow please Kate
Kate:Okay see you then.
Thu, 28 April, 5.47am
Kate:Tristan I’m actually still sick this morning. I felt really lethargic getting dressed and I don’t think it’s a good idea for me to start driving
Thu, 28 April, 7.34am
Tristan:Thanks”
On 29 April 2022, Ms Clift received a text message[9] from the Respondent asking if she could attend work that day to make up for the shifts missed on 27 and 28 April. The Applicant did not reply until later in the day due to anxiety stemming from a home invasion she had experienced at that time. This led to Ms Clift informing the Respondent she would be unable to attend work on 3 May 2022. That exchange was in the following terms:
“Fri, 29 April, 7.54am
Tristan:Hi Kate, any chance you could work today to make up the two days you missed or are you still feeling too weak to do that? Please let me know thanks
Fri, 29 April, 2.24pm
Kate: Hey, sorry ive had rough day so didn’t I haven’t read this until now!
Have the chance*
In 2 weeks I can make up for those days!
Fri, 29 April, 4.49pm
Tristan:Can you do Monday or Tuesday next week Kate?
Sun, 1 May, 5.36pm
Kate:Yes I can do Tuesday
Tue, 3 May, 5.35am
Kate:Sorry, deffs sick and I’m chesty Tristan, I don’t feel comfortable coming in this way.
Tue, 3 May, 4.55pm
Tristan:Hi Kate, I have taken you off the roster for the rest of the week so you can focus on your recovery”
I observe that Ms Clift did not indicate that she was the subject of a home invasion and did state that she was unwell with chesty symptoms. I make no criticism of the Applicant in that regard given the circumstances. Ms Clift also did not seek to be removed from the roster for the balance of that week. Although this removal was done without consultation, Mr Smith’s evidence about the circumstances applying at that time and concerns about having a casual employee attend work with the stated symptoms at the peak of the Covid-19 pandemic, was convincing and reasonable.
On 4 May 2022, Mr Smith approved the following which was sent as an email to Ms Clift (and 2 other employees) terminating her employment which read as follows:
“Good morning
As the event season is now coming to an end, please be advised your position with Tony’s Flowers has now ended.
We would like to thank you for all of your hard work during this period.
Your details will be kept on file for future events.
Thanks
Tristan”[10]
What was the reason for the dismissal?
There is a fundamental dispute about what the actual reason for dismissal was in this case. Ms Clift contends that based upon the timing of the dismissal, there was a strong inference that the dismissal occurred because she took unplanned leave and did not make herself available for the scheduled shifts. That is, Mr Smith was annoyed about these events and took the opportunity to dismiss Ms Clift.
Tony’s Flowers contends that due to the 2022 Events Season ending, it no longer required the Applicant to perform her role in the 2022 Off-Season and that Ms Clift and 2 other casual employees were dismissed at the same time and for the same reason. This is also the reasons advanced by its defence of this application.
The objective evidence before the Commission is that the (major) events season concluded at the time of the Applicant’s dismissal and that the Respondent decided to reduce its workforce by dismissing some of its production workforce at that time. I accept from Ms Clift’s perspective that she has taken the sequence of events to mean that the absences were the reason for the dismissal. This is also understandable as the notion that her employment was linked to the events season was not expressed as part of her contract and the circumstances of the previous year would have led her to hold the contrary view, in the absence of any explanation, which was not provided.
However, Mr Smith’s evidence about the circumstances and basis of the dismissal was convincing and consistent with the objective information before the Commission. This may have been informed by a less than fulsome understanding of the circumstances of Ms Clift and her employment, and undertaken in a very poor manner, but I find the reasons themselves provided by the Respondent for the dismissal were the genuine reason and broadly supported by the objective evidence.
I observe that there is no evidence that the dismissal was related to Ms Clift’s work performance or associated with any misconduct. Indeed, Ms Clift was very well regarded by the Respondent who was keen to have her available for future work opportunities.
Was Ms Clift’s dismissal unfair within the meaning of the Act?
Section 385 of the Act provides as follows:
“385 What is an unfair dismissal
(1)A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
© the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.”
There is no dispute that the Application was made within the time required by s.394(2) of the Act, or that Ms Clift was a person protected from unfair dismissal. Further, it is common ground that there was a dismissal and that the Small Business Fair Dismissal Code and the genuine redundancy provisions of the Act (as a jurisdictional objection) are not relevant.
Accordingly, the Commission must determine whether the dismissal was harsh, unjust, or unreasonable within the meaning of the Act. If so, the dismissal of Ms Clift will be unfair and the relevant remedy provisions must be applied to consider whether a remedy is to be awarded.
The Act relevantly provides as follows:
“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 is 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.”
Although an overall assessment is required, it is convenient to initially consider each factor as applied to the circumstances of this case.
Section 387(a) – whether there was a valid reason for the dismissal related to Ms Clift’s capacity or conduct (including its effect on the safety and welfare of other employees).
Valid in this context is generally considered to be whether there was a sound, defensible or well-founded reason for the dismissal. Further, in considering whether a reason is valid, the requirement should be applied in the practical sphere of the relationship between an employer and an employee where each has rights, privileges, duties and obligations conferred and imposed on them. That is, the provisions must be applied in a practical, common sense way to ensure that the employer and employee are each treated fairly.[11]
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. 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).[12]
It is also clear from the authorities that the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts before the Commission. That is, it is not enough for an employer to rely upon its reasonable belief that the termination was for a valid reason.[13] The employer bears the evidentiary onus of proving that the conduct or incapacity on which it relies took place.[14]
Although there may have been an objectively justifiable reason for the dismissal, it was not related to Ms Clift’s capacity or conduct. There was no valid reason, at least as contemplated by s.387(a) of the Act.
Section 387(b) – whether Ms Clift was notified of the reasons for dismissal.
This consideration requires the Commission to assess whether the applicant concerned was relevantly notified of the reasons leading to the dismissal before that decision was taken.[15]
Ms Clift was not notified of the reasons for her dismissal prior to that decision being made.
Section 387(c) – whether Ms Clift was given an opportunity to respond to any reason related to her capacity or conduct.
Given that the reason for dismissal was not related to Ms Clift’s capacity or conduct, this consideration is not engaged in this matter.
Section 387(d) – any unreasonable refusal by the respondent to allow Ms Clift a support person.
There was no meetings or process associated with this dismissal. This might raise other considerations, however there was no request for a support person. As a result, this consideration is not engaged in this matter.
Section 387(e) – if the dismissal is related to unsatisfactory performance by Ms Clift – whether she has been warned about that unsatisfactory performance before the dismissal.
This consideration relates to performance of the job. Performance in this context includes the employee’s capacity to do the work, and the diligence and care taken with that work.[16] The Applicant’s dismissal was unrelated to her work performance.
Section 387(f) – the degree to which the size of the respondent’s enterprise would be likely to impact on the procedures followed in effecting the dismissal.
Section 387(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.
The Respondent is a medium-sized business with “approximately 90 employees” at the time of the Applicant’s dismissal. The Respondent had engaged the assistance of external workplace relations specialists, Employsure. As a result, I do not consider that the size of the business or the absence of a dedicated human resources expertise impacted upon the procedures adopted in affecting the dismissal.
Section 387(h) - other matters considered to be relevant.
Although a casual employee with no guarantee of ongoing employment, Ms Clift had no insight into the practical implications of her employment given the absence of information about the importance of the events season and the unusual events of 2021. Ms Clift also had, when objectively assessed, a reasonable expectation of ongoing employment. This does not mean that the employer could not end the employment in accordance with the contract and the notion of being a casual. However, amongst other considerations, the Commission should consider the impact of the dismissal upon Ms Clift given all of the circumstances.
Further, I observe that the consideration established by s.387(h) is limited only by reference to matters considered to be relevant. In this case there are 2 additional, and somewhat competing, considerations.
First, although not a valid reason within the contemplation of s.387(a) of the Act, the business circumstances of the Respondent provided an objectively justifiable reason to reduce the number of casuals employed. The objective information confirms that a very significant reduction in flower production and associated work takes place after the immediate lead up to Mother’s Day each year and that this occurred in 2022. Further, that evidence also supports the notion that, unlike 2021, there were no vacancies in the administration area of the Pooraka facility that were utilised that year to maintain Ms Clift’s employment. No basis to suggest that the Respondent was obliged to seek out alternative work for Ms Clift has been made out in this case.
The evidence does reveal that there may have been some administrative or other work at the head office of the Respondent, however this was not explored, and the evidence falls short of indicating that anything other than a short-term position might have been available. I find that whatever short-term employment that might have been available to provide to Ms Clift was very unlikely to be sustainable to cover the time until the next peak flower production period. I will return to this aspect as part of my consideration of remedy in this matter.
Second, the manner of the dismissal was unreasonable. In the context of having been regularly and systematically employed for over 18 months, and without any real understanding of the intended (by the Respondent) seasonal circumstances of her employment, dismissal by a common email without any prior discussion was not appropriate and also involved the Applicant’s (and the other 2 employees’) dismissal, improperly, being disclosed to others.
Conclusions on nature of dismissal
The Act requires a global assessment having regard to the various relevant statutory considerations. In that context, procedural unfairness is an important consideration given the provisions of the Act but does not necessarily mean that the dismissal was unfair. This is reinforced by the objects relating to Part 3-2 Unfair Dismissal of the Act in s.381 which relevantly provides as follows:
“381 Object of the Part
… …
(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.
Note: The expression “fair go all round” was used by Sheldon J in in re Loty and Holloway v Australian Workers’ Union [1971] AR (NSW) 95.”
Having regard to all of the relevant circumstances of this matter and the considerations provided by the Act, I consider that Ms Clift’s dismissal was unreasonable. As a result, it was unfair within the meaning of the Act.
Remedy
Ms Clift does not seek reinstatement to her former position, but rather, compensation. Ms Clift seeks the maximum compensation available under the Act. Tony’s Flowers contends that no compensation should be awarded by the Commission.
Division 4 of Part 3-2 of the Act relevantly provides as follows:
“Division 4—Remedies for unfair dismissal
390 When the FWC may order remedy for unfair dismissal
(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:
(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) the FWC may make the order only if the person has made an application under section 394.
(3) the FWC must not order the payment of compensation to the person unless:
(a) the FWC is satisfied that reinstatement of the person is inappropriate; and
(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.
Note: Division 5 deals with procedural matters such as applications for remedies.
… …
392 Remedy—compensation
Compensation
(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.
Criteria for deciding amounts
(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:
(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e)the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that the FWC considers relevant.
Misconduct reduces amount
(3)If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.
Shock, distress etc. Disregarded
(4)The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.
Compensation cap
(5)The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:
(a) the amount worked out under subsection (6); and
(b) half the amount of the high income threshold immediately before the dismissal.
(6) The amount is the total of the following amounts:
(a) the total amount of remuneration:
(i) received by the person; or
(ii) to which the person was entitled;
(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and
(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.
393 Monetary orders may be in instalments
To avoid doubt, an order by the FWC under subsection 391(3) or 392(1) may permit the employer concerned to pay the amount required in instalments specified in the order.”
The prerequisites of ss.390(1) and (2) have been met in this case.
Section 390 of the Act makes it clear that compensation is only to be awarded as a remedy where the Commission is satisfied that reinstatement is inappropriate and that compensation is appropriate in all the circumstances. As Ms Clift does not seek reinstatement and in fact is strongly opposed to that form of remedy, I find that such would be inappropriate in all of the circumstances of this matter.
As set out above, under the Act, it is then necessary to consider whether compensation in lieu of reinstatement is appropriate.
A Full Bench in McCulloch v Calvary Health Care Adelaide[17] (McCulloch) confirmed, in general terms, that the approach to the assessment of compensation as undertaken in cases such as Sprigg[18] remains appropriate in that regard.
Section 392(2) of the Act requires me to take into account all of the circumstances of the case including the factors that are listed in paras (a) to (g). Without detracting from the overall assessment required by the Act,[19] it is convenient to discuss the identified considerations under the various matters raised by each of the provisions.
The effect of the order on the viability of Tony’s Flowers
Nothing was put on this aspect, but the Respondent is a relatively substantial business and there is no indication that an order of the kind being considered here would impact upon the viability of that business.
The length of Ms Clift’s service with Tony’s Flowers
Ms Clift worked for the Respondent for about 18 months. This is not a significant duration and represents a neutral consideration.
The remuneration Ms Clift would have received, or would have been likely to receive, if she had not been dismissed
This involves, in part, consideration of the likely duration of Ms Clift’s employment in the absence of what I have found to be an unfair dismissal. That is, the establishment of the anticipated period of employment.[20]
The anticipated period of employment requires consideration as to how long the employment would have continued before it otherwise came to an end fairly, or on some justified or mutual basis. An applicant employee might also leave of their own volition.
This is not an easy assessment in the context of this case. The employment was casual, and this brings with it the normal notions of uncertainty. Although Ms Clift may have intended to remain employed for at least a year beyond her dismissal, this is only part of the parameters for the present assessment. Indeed, given my findings about the basis of the dismissal and the objective evidence to support that approach, it is likely that if handled in a more reasonable and open manner, the dismissal would have taken place relatively soon after that event occurred. The prospect that some additional, albeit short-term, alternative work could have been available, should also be taken into account.
I consider that the anticipated period of employment for present purposes should be some 5 weeks. This reflects the balancing of all of the circumstances and inferences arising from the facts of this particular matter. There is a prospect that Ms Clift would, in the absence of the dismissal occurring in the manner that it did, subsequently be offered and accepted work in the next peak season. However, given all of the circumstances, including the casual nature of the engagement and the fact that Ms Clift (having been dismissed) may not in any event have been available or willing to return to the Respondent at that later time, I consider this to be too speculative to be included for the purpose of the anticipated period of employment.
Ms Clift was paid a weekly amount that reflected her hours of work in any given week. The only evidence before the Commission is that this involved an average wage of $577.91 (gross) per week.[21]
The projected remuneration that Ms Clift would have received based upon the anticipated period of employment with Tony’s flowers and the rate of remuneration paid would therefore have been $2,890 plus superannuation contributions.
The efforts of Ms Clift to mitigate the loss suffered by her because of the dismissal
Ms Clift actively sought alternative employment and obtained some casual work in July 2022, albeit at a reduced level than with Tony’s Flowers. This continues, although the precise commencement date and earnings from that new employment are not presently before the Commission.
Tony’s Flowers principally relies upon 2 proposals that were made by it after the dismissal in support of its contention that Ms Clift did not take steps to mitigate her losses and should not be entitled to any compensation.
On 1 or 2 June 2022, after receipt of this application, Mr Amorico contacted Ms Clift in an attempt to resolve the matter as he had had a good working relationship with the Applicant and wished to have her leave on good terms and be available for future employment.
Mr Amorico explained that the dismissal could have been managed better and that he was embarrassed that it had caused her distress. Mr Amorico then asked Ms Clift:
“Would you like me to see if there’s anywhere else in the company you can work? We can investigate and see if there’s work available at our other facility at Mile End. Would you consider that?”[22]
Mr Amorico had in mind the possibility of a role at the Head Office, which is located at Mile End, about 21 minutes away from the Pooraka facility.
Ms Clift indicated that she would think about the matter and get back to Mr Amorico.
Ms Clift did not respond to Mr Amorico; however, Mr Vallelonga took over the exchanges with her when Mr Amorico went overseas. On 10 June 2022, Mr Vallelonga also contacted the Applicant and indicated:
“Is there any way I can help you? Can we work something out? Can we resolve it?”[23]
Mr Vallelonga had contemplated providing Ms Clift with “a letter of reference, a couple more weeks of work in another team, or 2 weeks’ payment in lieu of notice.”[24]
Mr Vallelonga did not consider that Ms Clift was very forthcoming or receptive to the suggestion and indicated only that she would “get back to” him.
On Saturday 11 June 2022, Ms Clift sent an email rejecting the Respondent’s proposals to resolve the matter and apparently made an offer of a different kind.
I accept that the proposals made by Mr Amorico and Mr Vallelonga to explore options to resolve the application were genuine, but no definite future employment was offered. Further, the evidence does not reveal that the investigation of these possibilities would have led to any substantive positions being open to Ms Clift and despite the apologies provided, I accept that there was some legacy left by the manner of the dismissal. That is, the manner of the dismissal created a trust deficit that should be considered in assessing Ms Clift’s response to the Respondent’s approaches to her.
I also observe these exchanges occurred some weeks after the dismissal had been communicated and in response to this application being lodged.
Although I am not without reservations about Ms Clift’s rejection of the concept of these options being investigated, on balance, I do not consider that Ms Clift has failed to take reasonable steps to mitigate her losses to justify a discount on the compensation that I have otherwise determined.
The amount of any remuneration earned by Ms Clift from employment or other work during the period between the dismissal and the making of the order for compensation
The amount of any income reasonably likely to be so earned by Ms Clift during the period between the making of the order for compensation and the actual compensation
Although there is relevant remuneration that may need to be taken into account for this purpose, the detail is not presently before the Commission. This would also require consideration of when that income began in terms of the projected period of employment. That is, I would only be inclined to make a deduction if the remuneration from the new employment fell within a period of 5 weeks following the dismissal (mid-June 2022). The preliminary evidence is that this new employment commenced in July 2022; however, this was not confirmed by direct evidence.
Any other matter that the FWC considers relevant and the remaining statutory parameters
I have taken into account the projected nature of the anticipated loss of remuneration over a known period and given the circumstances of this case, it is not appropriate to make a further allowance for contingencies.[25]
I do not consider that a deduction for misconduct as provided by s.392(3) of the Act is relevant or appropriate in this case.
In accordance with s.392(4) of the Act, I make no allowance for any shock, distress or humiliation that may have been caused by the dismissal. I also observe that compensation in this context is not in the nature of damages or a penalty for the actions of the employer.
The maximum compensation limit in this case is the lesser of 26 weeks remuneration[26] before the dismissal occurred or the stated statutory compensation cap of $79,250.[27] The amount of compensation otherwise arising from the statutory considerations is less than the lower figure.
Taxation as required would be payable on any amount determined. I consider that superannuation of 10 per cent[28] should be taken into account in relation to the compensation figure ultimately to be awarded in this matter.
Conclusions on remedy
Having regard to the circumstances of this matter applied to the considerations established by s.392 of the Act, I consider that it is appropriate to make an award of compensation to Ms Clift in lieu of reinstatement. The basic parameters of that compensation have been set out above.
However, as the precise details of Ms Clift’s new employment are not presently before the Commission, it is not possible to finalise the compensation amount or to settle the Order to be made in this matter.
Conclusions and further steps
As a result of the above findings, the dismissal of Ms Clift was unfair within the meaning of the Act. Further, I have found that compensation should be awarded as set out above.
I direct the parties to seek to resolve the amount of compensation to be provided in light of this decision. This should be done within 7 days of this Decision. If this cannot be agreed, Ms Clift is within 14 days of this Decision to file and serve the outstanding details associated with her new employment together with any relevant submissions. The Respondent may file and serve any response submissions within a period of a further 7 days.
Subject to further application, and in the absence of agreement, the Commission will determine the compensation order based upon all the material then before it.
General liberty to apply is also granted.
COMMISSIONER
Appearances:
A Vasiliras of Vasilaras + Co. Lawyers, with permission for Ms Clift, the Applicant.
K Dinh of Employsure Law, with permission for Tony's Wholesale Flowers Pty Ltd, the Respondent.
Hearing details:
2022
September 19
Video Hearing.
[1] Form F2 Application, DCB at page 12.
[2] Exhibit A1.
[3] Outline of Submissions of Respondent DCB at page 61.
[4] Witness Statement Exbibit R1.
[5] Witness Statement Exbibit R2.
[6] Witness Statement Exbibit R3.
[7] Clause 13.1.
[8]“B” attached to the exhibit A1.
[9] “C” attached to the exhibit A1.
[10] “D” attached to the exhibit A1.
[11] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 as cited in Potter v WorkCover Corporation, (2004) 133 IR 458 per Ross VP, Williams SDP, Foggo C and endorsed by the Full Bench in Industrial Automation Group Pty Ltd T/A Industrial Automation [2010] FWAFB 8868, 2 December 2010 per Kaufman SDP, Richards SDP and Hampton C at par [36].
[12] Walton v Mermaid Dry Cleaners Pty Ltd (1996) IRCA 267 per Moore J at [685].
[13] See Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1; King v Freshmore (Vic) Pty Ltd AIRCFB Print S4213 per Ross VP, Williams SDP, Hingley C, 17 March 2000; Edwards v Giudice (1999) 94 FCR 561; Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport AIRCFB Print S5897 per Ross VP, Acton SDP and Cribb C, 11 May 2000 and Rode v Burwood Mitsubishi AIRCFB Print R4471 per Ross VP, Polites SDP, Foggo C, 11 May 1999.
[14] King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) Print S4213 at [24].
[15] See Trimatic Management Services Pty Ltd v Daniel Bowley [2013] FWCFB 5160.
[16] See Anetta v Ansett Australia Ltd (2000) 98 IR 233.
[17] [2015] FWCFB 873.
[18] Sprigg v Paul’s Licensed Festival Supermarket (1998) 88 IR 21. See also Bowden v Ottrey Homes Cobram and District Retirement Villages Inc T/A Ottrey Lodge[2013] FWCFB 431.
[19] Smith and Others v Moore Paragon Australia Ltd (2004) 130 IR 446.
[20] McCulloch.
[21] Exhibit A1 at para 3.
[22] Exhibit R3 at para 9.
[23] Exhibit R2 at para 12.
[24] Ibid.
[25] See the discussion of contingencies in McCulloch at [20] – [23]; Bowden v Ottrey Homes Cobram and District Retirement Villages Inc T/A Ottrey Lodge[2013] FWCFB 431, at par [52]; Ellawala v Australian Postal Corporation AIRC Print S5109, per Ross VP, Williams SDP and Gay C, 17 April 2000 and in Enhance Systems Pty Ltd v James Cox AIRC Print PR910779, per Williams SDP, Acton SDP and Gay C, 31 October 2001.
[26] It is the higher of the amount of remuneration received or entitled to be received for the previous 26 weeks period that is to be used under s.392(6)(a) of the Act.
[27] Section 392(5) of the Act.
[28] Based upon the Superannuation Guarantee Charge Act 1992 (Cth) and related scheme.
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