Kelly Mahlook v Market Europa Kingston Pty Ltd

[2015] FWC 8717

[2015] FWC 8717

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kelly Mahlook
v
Market Europa Kingston Pty Ltd
(U2015/10276)

COMMISSIONER BISSETT MELBOURNE, 18 DECEMBER 2015

Application for relief from unfair dismissal - dismissal - no abandonment of employment - unfair dismissal - compensation.

[1] Ms Kelly Mahlook commenced employment on 29 August 2014 with Market Europa Kingston Pty Ltd (Market Europa). Market Europa is a supermarket outlet. Ms Mahlook worked on the cash register and performed other duties in the store. She was a full time, on-going employee.

[2] Ms Mahlook was at work on 31 July 2015 when she received a text message advising her that her daughter was threatening to self-harm. Ms Mahlook remained at work as there were other people taking care of her daughter.

[3] At about 4.15pm that day she was asked by Mr Dominic Bucci, the grocery manager, to meet with her manager, Mr Paul Rizza. She met with both managers in the boardroom where Mr Rizza told her that he had received two complaints from customers that day that she had a ‘foul’ look on her face. Ms Mahlook says she explained the situation with her daughter. Mr Rizza would not listen to her, kept talking over her and told her she had to leave her personal problems at home and not bring them into the workplace.

[4] Ms Mahlook says she was also told that she was taking excessive leave.

[5] Ms Mahlook says that Mr Bucci appeared more sympathetic and understanding of her position.

[6] Ms Mahlook was asked to wait outside and, after a short while, was called back in and told that, as of 17 August 2015, she would be taken off full time hours, employed as a casual employee and rostered for 25-30 hours per week. She says she did not agree to this change in her hours or status. She was also told that she was required to take the following day (a Saturday) off work. She was not paid for this day.

[7] Ms Mahlook continued working her normal full time shifts until 12 August 2015 when her mother died. Subsequently she was required to travel to Perth to make arrangement for her mother’s funeral and to deal with matters associated with the estate. Ms Mahlook says she kept in contact with Mr Rizza while she was in Perth. She returned to Melbourne on 21 August 2015.

[8] Ms Mahlook says that she was aware that for the week commencing 17 August 2015 (the first week of being a casual employee) she was on the roster to work a total of 21 hours.

[9] Ms Mahlook says that she never agreed to convert to a casual employee, that she was given no choice in the matter and that she has never received advice of her change of status in writing. Ms Mahlook says that she considers that her employment was terminated, that she was advised of the termination on 31 July 2015 and that it took effect on 17 August 2015.

[10] Market Europa says that Ms Mahlook has not had her employment terminated.

[11] Mr Rizza says that he received complaints from customers about Ms Mahlook on 31 July 2015 so he and Mr Bucci called her in to a meeting to discuss the issue. He says Ms Mahlook was asked by Mr Bucci if she wanted a support person and she said no. He says that in the discussion Ms Mahlook became quite emotional and told them about her daughter and that she felt guilty that she was not spending enough time with her.

[12] Mr Rizza also says that Ms Mahlook took excessive breaks and that she had a ‘sourpuss’ attitude although this does not appear to have been raised in the meeting.

[13] Mr Rizza says that he and Mr Bucci discussed the matter and they both thought that if they offered Ms Mahlook casual hours of between 25-30 per week she would be able to spend more time with her daughter. He says he put the proposal to Ms Mahlook and she gladly accepted it. He says they gave her two weeks’ notice of the change in hours as he thought he was required to do.

[14] Mr Rizza was aware that Ms Mahlook travelled to Perth in relation to her mother’s death on 12 August 2015. He says he was not sure when she would return and did not think much of it when she did not return to work on 17 August 2015 but was surprised when he did not hear from her at all that week. He says he sent her a text message on 24 August 2015 so he could roster her but she did not respond and he has not heard from her since.

[15] Mr Bucci provided a similar account of the meeting of 31 July 2015 to that of Mr Rizza. He says that he and Mr Rizza put the proposal of casual work to her and that the intention was to put her back on full time work once she had sorted out her affairs. He says that Ms Mahlook was a good worker and he would be happy to have her back in the workplace. Mr Bucci also says that there was no intention to dismiss Ms Mahlook at this meeting.

[16] He says that Mr Rizza had taken notes during the meeting and these had been placed on the file. He was not aware of any letter formalising the change in working arrangement having been provided to Ms Mahlook.

[17] Market Europa, in its employer response to the application, said that Ms Mahlook had not been dismissed, rather she had abandoned her employment because she never returned to work and did not respond to attempts to contact her.

Was Ms Mahlook dismissed?

[18] Ms Mahlook says that, by changing her status and her hours of work to the extent that it did, Market Europa terminated her employment. She did not ask for, or want, the reduction in hours or the change in status to a casual employee.

[19] Market Europa says that Ms Mahlook quite happily accepted the change in her employment arrangements and that they were only in place until she sorted out her personal affairs.

[20] The meaning of ‘dismissed’ is set out in s.386(1) of the Fair Work Act2009 (the Act):

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

[21] Prior to considering if Ms Mahlook has been unfairly dismissed I must first determine if she has, in fact, been dismissed. As such I must determine if her employment was terminated at the employer’s initiative or she was forced to resign because of conduct or a course of conduct engaged in by Market Europa.

[22] In O’Meara v Stanley Works Pty Ltd 1 the Full Bench considered whether a termination of employment was at the initiative of the employer. The Full Bench said:

In our view the full statement of reasons in Mohazab which we have set out together with the further explanation by Moore J in Rheinberger and the decisions of Full Benches of this Commission in Pawel and ABB Engineering require that there to be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. It is not simply a question of whether “the act of the employer [resulted] directly or consequentially in the termination of the employment.” Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution as they may not give full weight to the decision in Mohazab. In determining whether a termination was at the initiative of the employer an objective analysis of the employer’s conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign. 2

[Footnotes omitted]

[23] The important consideration is whether there was some action of the employer intended to, or with the probable result of, bringing the employment relationship to an end.

[24] Ms Mahlook was a full time, on-going employee of Market Europa. By its actions Market Europa altered her status and the security of her employment by giving her two weeks’ notice that she would be converted to a casual employee with less than full time hours.

[25] Further, Market Europa told Ms Mahlook that this was occurring at a time when, on the evidence of Mr Rizza, she was emotionally upset because of what had happened to her daughter.

[26] Whilst Ms Mahlook continued to work out the ‘notice period’ she did not return to work (after attending to her mother’s death) on the causal employment arrangement.

[27] There is conflicting evidence as to whether or not Ms Mahlook accepted the changed employment status and hours. Ms Mahlook says she had no choice and was not given the option of rejecting the proposal. Mr Rizza says she accepted the change.

[28] In the circumstances I prefer the evidence of Ms Mahlook. Had she ‘happily accepted’ the change as suggested by Mr Rizza there is no reasonable explanation as to why she did not return to the workplace following her return from Perth. Although Ms Mahlook did not dispute the change before she went to Perth, she says she was expecting that the change would be put in writing. I make no assumption of what she might have done had it been put in writing

[29] I am prepared to acknowledge that Mr Rizza and Mr Bucci thought they were doing the right thing by Ms Mahlook – providing her with support and flexibility to enable her to spend time with her daughter. However, the way they went about the task was flawed. Had they really considered this a reasonable proposal to put to her it should have been put in writing and Ms Mahlook given some time to consider it as a possibility. The decision to reduce her hours and employment status to casual should have been hers and she should have been given the time and space to consider if that was what she wanted without pressure.

[30] Even if Mr Rizza thought Ms Mahlook had agreed to his proposal he should have recognised that she was distressed at what her daughter had attempted that day, put the proposal in writing and given Ms Mahlook a chance to consider it.

[31] In these circumstances I am satisfied that, in altering Ms Mahlook’s hours of work and changing her from an on-going to a casual employee, Market Europa dismissed Ms Mahlook from her employment. The date of effect of her dismissal was 17 August 2015.

Was Ms Mahlook unfairly dismissed?

[32] I am satisfied that Ms Mahlook was dismissed, that the dismissal was not a redundancy and that the Small Business Fair Dismissal Code does not apply.

[33] In determining if a person has been unfairly dismissed it is necessary that I consider those matters in s.387 of the Act.

Section 387(a) – valid reason

[34] For a reason for dismissal to be a valid reason it must be ‘sound, defensible and well founded. A reason that is capricious, fanciful, spiteful or prejudiced could never be a valid reason’. 3

[35] I do not consider the reason for the termination of Ms Mahlook’s employment to be spiteful or prejudiced but, by the same token it is not sound or defensible or well founded. While the motivation may have been well founded it was totally misplaced.

[36] There was some suggestion that complaints had been made by customers about Ms Mahlook that day and that these were not the first complaints made about her. Whilst this may have been the case no evidence was put to the Commission to suggest that these provided a valid reason for her dismissal.

[37] Mr Rizza agrees that he did not speak to Ms Mahlook of her lengthy breaks in the meeting of 31 July 2015 and again nothing was put to the Commission that would allow a finding that this provided a valid reason for dismissal.

[38] As to the complaint of Mr Rizza that Ms Mahlook had a ‘sourpuss’ attitude I accept that he used the expression in the vernacular. I do not find it a particularly descriptive term in assessing issues associated with her attitude at work. In any event it was not expanded upon in the hearing and does not appear to have been put to Ms Mahlook at any stage. I do not find that this provides a valid reason for her dismissal.

[39] I therefore find that there is no valid reason for the dismissal of Ms Mahlook.

Section 387(b) & (c) – whether she was advised of that reason and given an opportunity to respond

[40] Market Europa dismissed Ms Mahlook (in altering her employment status) in response to its understanding of her desire to spend more time with her family. I am not convinced that, in taking the action that it did, it advised her of that reason or gave her an adequate opportunity to respond. The alteration did not have to be determined that day and the reasoning behind it was not spelt out.

[41] Insofar as the reason for dismissal may have been her attitude to customers this was not discussed in any substantive way with Ms Mahlook in the meeting on 31 July 2015 and she was certainly not given this reason as the basis to alter her status and hours of work. On the basis of the material before me I do not consider that this was the reason for dismissal.

[42] Section 387(d) – support person

[43] Mr Bucci says that, at the beginning of the meeting on 31 July 2015, he asked Ms Mahlook if she would like a support person and she refused.

[44] Ms Mahlook says that she was not offered the opportunity to have a support person.

[45] Section 387(d) does not require that an employer offer an employee a support person. It is that the employer not unreasonably refuse the person to have a support person present.

[46] I am satisfied that Market Europa did not unreasonably refuse to allow Ms Mahlook to have a support person present.

Section 387(e) – unsatisfactory performance

[47] I do not understand Ms Mahlook’s dismissal to relate to performance.

Sections 387(f) & (g) – the impact of the size of the employer’s enterprise and absence of specialist on the procedures effecting the dismissal

[48] Nothing was put to me on this matter.

Section 387(h) – any other matters

[49] There was no issue raised of Ms Mahlook’s departure to Perth in relation to the death of her mother. Mr Rizza knew that this was a possibility as Ms Mahlook’s mother had been terminally ill. Mr Rizza however says he did not hear from Ms Mahlook while she was in Perth.

[50] Ms Mahlook produced her mobile phone records which indicated she had sent numerous texts to Mr Rizza whilst she was away.

[51] On her return from Perth Mr Rizzo says he texted Ms Mahlook but she did not reply while Ms Mahlook says she did reply. I do note however, from the mobile phone details provided by Ms Mahlook, that there is no record of Ms Mahlook either texting or calling Mr Rizza from her mobile phone any time after 16 August 2015.

Conclusion

[52] I have considered all of the material before me. I note that there is no evidence that Ms Mahlook advised Mr Rizza verbally or in writing that she did not accept the changes put by him but also that she thought she would get the details in writing. I also have some doubts as to Ms Mahlook’s attempts to contact Market Europa after 16 August 2015.

[53] Whilst I understand the motivations of Mr Rizza and I do not consider that his intent was to dismiss Ms Mahlook this ultimately was the result of the actions he took.

[54] However, despite this, given the lack of a valid reason for the dismissal I am satisfied the dismissal was harsh, unjust or unreasonable.

[55] I therefore find that Ms Mahlook was unfairly dismissed.

Remedy

[56] Ms Mahlook says that she does not seek reinstatement although Market Europa indicates it would be willing to have her back. Given her views however I do find that reinstatement would not be appropriate. I will therefore consider compensation.

Compensation

[57] Section 392(2) of the Act sets out those matters I must take into account in determining compensation.

[58] Ms Mahlook worked 38 hours per week at Market Europa earning (gross) $742.11 (excluding a laundry allowance) per week plus superannuation. She commenced working for Market Europa in August 2014.

[59] I am satisfied that if Ms Mahlook’s employment had not been terminated she would have remained with Market Europa for another 6 months. By all accounts Ms Mahlook was happy working there and she was generally a good worker. That there may, from time to time, be complaints about her from customers does not indicate that her employment would not have continued. By all accounts the customer complaints were not of a serious nature that would indicate her employment was untenable. I have taken into account that Ms Mahlook was with Market Europa for a relatively short period of time in determining how long she may have remained there.

[60] I am therefore satisfied that Ms Mahlook’s lost remuneration for a 6 month period would amount to $19,132.

[61] Ms Mahlook’s evidence is that she enrolled with a job network agency and has applied for a position at Coles. Whilst I appreciate Ms Mahlook’s attempts to find work and the limited nature of the work she can perform (I am not aware that she has any qualifications that might open up a broader range of employment opportunities to her) I am not convinced she has made reasonable efforts to mitigate her loss. Her evidence was that she had applied for only one job vacancy since her dismissal. Whilst she has enrolled with a job agency the obligation is on Ms Mahlook to do those things necessary to mitigate her loss. Enrolment at a job agency alone does not, in my view, demonstrate this. I shall therefore discount the amount I award in compensation by 20% for this reason.

[62] I shall also discount the amount of lost remuneration by 15% for contingencies. On Mr Rizzo’s evidence Ms Mahlook had taken over 20 days of personal leave and leave without pay in the 10 months of her employment. Given this history I am satisfied that a 15% discount for contingencies is warranted.

[63] Ms Mahlook says that she has not secured employment. I am therefore satisfied that she has earned no income in the period since her dismissal. I therefore do not consider that she might earn any income between the making of the order and payment of compensation.

[64] I am satisfied that the amount I order will not affect the viability of the Market Europa’s business.

[65] I have not included any amount for shock, humiliation or distress of Ms Mahlook for the termination.

[66] The amount of compensation I shall award is therefore $13,009.00 plus 9.5% superannuation. I shall order that this amount be paid to Ms Mahlook within 21 days of the making of the Order.

[67] This amount does not exceed the compensation cap set by the Act.

[68] An Order to this effect will be issued with this decision.

COMMISSIONER

Appearances:

K.Mahlook for herself.

M. Rizza and D. Bucci for the Respondent.

Hearing details:

2015.

Melbourne:

November 30.

 1   PR973462, (11 August 2006).

 2   Ibid, [23].

 3   Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371.

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