Khaleda Botris v Inghams Enterprises Pty Limited

[2013] FWC 5567

[2013] FWC 5567

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Khaleda Botris
v
Inghams Enterprises Pty Limited
(U2013/6339)

COMMISSIONER BULL SYDNEY, 14 AUGUST 2013

Application for unfair dismissal, ex-tempore decision, grievance re no redundancy payment does not equate to an unfair dismissal, no capricious act by employer resulting in unfair dismissal.

[1] This is a decision given extemporaneously on transcript following a hearing in Sydney on 6 August 2013.

[2] The matter was attempted to be conciliated but has remained unresolved.

[3] Ms Khaleda Botris, (the Applicant) represented herself in this matter, and Mr Story for Inghams Enterprises Pty Limited (the Respondent) 1.

Background

[4] On 28 August 1996, the Applicant commenced employment with Inghams Enterprises Pty Limited at its Hoxton Park poultry processing plant as a process worker. The Applicant now alleges that she was unfairly dismissed when terminated on 15 January 2013, following a five-week notice period having been provided by the Respondent. Initially the application for unfair dismissal was filed out of time, but on 3 May 2013, the Commission granted an extension of time to file the unfair dismissal application based on exceptional circumstances. 2

[5] By way of background, in 2009 the Applicant was placed on light duties, having incurred a number of work-related injuries in her employment. On 1 June 2010, the Applicant was considered by the Respondent unfit to continue her work as a process worker due to her medical condition, making her unable to continue the duties that are inherently related to her position. Since June of 2010, the Applicant has not returned to work, being a period of approximately some two and a half years until her termination in January 2013.

[6] The Applicant has an ongoing workers compensation claim which remains unresolved. The Commission has been advised that that matter is still ongoing with the Applicant’s solicitors. It is noted that much of the Applicant’s absence from work since 1 June 2010, has been on unpaid sick leave while the workers compensation claim has been progressed.

Applicant’s Submissions

[7] The Applicant submitted that she was unfairly dismissed and relied on her own evidence and submissions. The Applicant did not call any witnesses to support her case.

[8] In essence, the Applicant argues that her dismissal is unfair on the basis that after a long and loyal period of employment involving considerable overtime with the Respondent her termination in January 2013 deprived her of a redundancy payment which she would otherwise have been entitled to had she continued on with her employment until her work site, the factory at Hoxton Park, closed on 3 May 2013, being some five months following her written notice of termination. That notice was provided to her on 10 December 2012.

[9] The Applicant states that a shop steward at the factory, at some time in January 2013 knew that the Hoxton Park site was to close. She argues that the Respondent could have kept her employment ongoing until the closure of the factory and that her termination was premature on the basis that she had already been off work for a period of well over two years.

[10] The Applicant states that as a result of the Respondent’s unfair dismissal she has been deprived of a redundancy payment of approximately 52 week’s pay.

Respondent’s Submissions

[11] The Respondent made submissions and called two witnesses.

[12] Mr Moody was the first witness called by the Respondent, having been the Plant Manager at the Hoxton Park processing plant of the Respondent at the relevant time.

[13] Mr Moody, in his evidence, advised that he had been employed with the Respondent since 2001 and from that period onwards there was always knowledge that the Hoxton Park plant was to close. However, there were many rumours as to when that may occur. In Mr Moody’s evidence it was not until Friday, 1 February of 2013, that he was advised that the plant would actually close in May 2013.

[14] Mr Moody’s evidence was that in June 2010, he met with the Applicant and advised her that the Respondent was unable to continue to provide her with alternative duties due to the nature of her injuries. However, she could return to work following the provision of a medical clearance stating that she was fit to work as a process worker, being the position she was employed for. Mr Moody advised that correspondence was given to Ms Botris on the same day. That correspondence has not been provided to the Commission. Mr Moody advised the Commission that from that day onwards, 1 June 2010, the Applicant provided medical certificates stating that she was unfit to return to her normal full time duties.

[15] He further advised that in November of 2012, he was shown medical reports concerning the Applicant that had been received from the Applicant’s representatives (Slater and Gordon Lawyers) for her workers compensation claim. A letter from Slater and Gordon was received on 4 October 2013, advising the Respondent that they had instructed Ms Botris to claim lump sum compensation benefits under the provisions of the Workers Compensation Act 1987 (NSW), namely ss. 66 and 67. Following a perusal of medical reports that attached to this correspondence, Mr Moody advises that he met with the Respondent’s Human Resources Business Partner, Ms Sharon Beaver, and they concluded that based on the medical reports received it appeared that the Applicant would remain unfit for her normal duties for the foreseeable future.

[16] Following this conclusion between the Human Resources Business Partner and Mr Moody, a letter was sent to the Applicant dated 27 November 2012, advising that on the basis of this information and ongoing medical certificates provided; the Respondent was considering terminating her employment as she was unable to perform the inherent requirements of her role as a process worker. The correspondence advised, however, prior to making any final decision, an opportunity was being provided for the Applicant to provide any further medical evidence concerning her ongoing medical condition and ability to continue her work for the Respondent.

[17] The Respondent states that no further medical evidence was presented by the Applicant to change the conclusion of the Respondent that she was unable to continue to perform the inherent requirements of her job. On 5 December 2012, Mr Moody states that Ms Botris came to the Hoxton Park plant and spoke to him in his office and at the conclusion of that meeting Ms Botris stated that she had nothing further to say and no further medical evidence was provided. Following that meeting, on 7 December 2012, Mr Moody states he spoke with Ms Beaver about the response of the Applicant and both concluded that there was no further information that could be obtained from Ms Botris concerning her health and fitness. They concluded that her employment should be terminated because of her inability to continue to perform her role since at least June 2010, and that inability would continue for the foreseeable future based on the available medical evidence.

[18] Correspondence was sent to the Applicant on 10 December 2012, stating that having considered all the information concerning her medical condition and the position being that she was unlikely to return to work in the foreseeable future, the Respondent had arrived at the conclusion to terminate her employment and would provide a notice period of five weeks, meaning that her employment would come to an end on 15 January 2013. As stated earlier, Mr Moody in his evidence advised the Commission that it was not until 1 February of 2013, that he was advised by the Company hierarchy that the Hoxton Park plant would be closing in May 2013.

[19] The second and last witness on behalf of the Respondent was Ms Sharon Beaver, the Human Resources Business Partner. Her evidence mainly corroborated that of Mr Moody in terms of the process involved in arriving at the conclusion to terminate the employment of the Applicant. Being, that in early November 2012, documentation was received from the Respondent’s workers compensation division that had received correspondence from Ms Botris’ solicitors, Slater and Gordon, which included medical opinion that the Applicant was unable to continue her normal duties in the foreseeable future. Having reviewed those medical reports, Mr Moody and Ms Beaver came to the conclusion that termination of employment was more than likely for the Applicant, based on that medical evidence.

[20] Contrary to the initial submissions made by Mr Story, the apparent lengthy period of time, some two and a half years, until the decision was made to terminate the Applicant’s employment, was due to it having slipped under the radar. Ms Beaver in her evidence stated that such a period of time was not unusual in the scheme of things at the Respondent’s work site. Her evidence was that there had been some 10 employees terminated on similar grounds in the last 12 months by the Respondent.

Conclusion

[21] In making a conclusion under the Fair Work Act 2009 (the Act) the Commission is bound to follow the criteria listed in s.387 of the Act. The first criterion is that a valid reason for dismissal exists in considering whether the termination has been harsh, unjust or unreasonable.

[22] The Applicant herself does not take issue with the reason given by the Respondent for her termination, that being that she was unable to perform the inherent requirements of her position. However, the Applicant takes issue with the timing of the termination, being some five months before the closure of the Hoxton Park plant, which has in effect deprived her of a redundancy payment.

[23] In examining whether a valid reason for termination exists the Commission must be confident that a sound, defensible or well founded reason exists such as to constitute a valid reason. Where that reason may include issues of being capricious or spiteful, a valid reason may not exist.

[24] While the Applicant has in as many words argued that her termination in January 2013, was capricious or spiteful, it is in essence the thrust of her submission, being that had the Respondent kept her on their books for a further five months she would have been entitled to a redundancy payment which she has not received.

[25] In my view, on the evidence available before the Commission, including the evidence given by the witnesses, I am unable to conclude that any of the Respondent’s personnel involved in making the decision to terminate the Applicant did so on the basis that it would free them of an obligation to pay the Applicant a redundancy payment that otherwise would have been payable.

[26] Both witnesses for the Respondent gave evidence that they were unaware of when that the Hoxton Park plant was to close, when they made the decision to terminate the Applicant. Indeed, they did not become aware of when the plant was to close until 1 February of 2013. The decision to terminate the Applicant was made in November of 2012.

[27] Based on that evidence which is before the Commission, I conclude that a valid reason did exist for the termination and I am unable to form a view that there was no such valid reason based on the decision being capricious or spiteful or done deliberately to deprive the Applicant of a benefit she would otherwise have been entitled to.

[28] Under s.387 of the Act I am bound to consider whether the Applicant was notified of that reason. It is again not disputed that the Applicant was notified in writing on 10 December 2012, of her termination. She was also advised in November 2012, of the potential of her termination. On that basis I am unable to hold that the Applicant was not advised of the reason for her termination.

[29] Further, the Applicant was given an opportunity to respond to that reason. She was advised on 27 November 2012, about the impending decision to terminate her employment and given the opportunity to provide any further information that may assist the Respondent in coming to a conclusion other than to terminate her employment. Again, it is not disputed that no further information was made available by the Applicant to alter the Respondent’s view that she was unable to continue in her employment based on the inability to perform the inherent duties of her role. The Applicant was asked to provide information by 6 December 2012. The Applicant had a meeting with Mr Moody on 5 December of 2012, and no further information was forthcoming.

[30] I am also required to have regard to whether there was any unreasonable refusal by the Respondent to allow a support person to provide assistance to the Applicant. This was not an issue raised by the Applicant and is not a matter in dispute. I need not consider that any further.

[31] I need not consider any aspects as to whether the dismissal related to unsatisfactory performance. There was no issue raised by the Respondent about the Applicant’s performance and, as far as the Commission is concerned, the Applicant’s performance was not an issue in question.

[32] Further, the degree to which the size of the Respondent’s enterprise may have had an impact on the procedures affecting the dismissal or the absence of any dedicated human resource management specialists are not issues that I need to be concerned with in respect to drawing a conclusion in respect to this application.

[33] The Applicant, in my view, may well feel aggrieved that had she remained employed (on unpaid sick leave) for a further (approximately) five months until May of 2013, she would have received a rather generous redundancy payment. It does seem a little bit incongruous as to why the Respondent has allowed the position of the Applicant to remain on unpaid leave from June of 2010, up until the end of 2012 and then, some five months prior to the closure of the Hoxton Park plant, made a decision to terminate the Applicant. However, based on the conclusions I have previously reached in respect of the witness evidence, I am unable to conclude that it was in the mind of the Respondent that terminating the Applicant prior to the closure of the plant, thus removing the ability of the Applicant to receive a redundancy payment, was a reason considered by the Respondent at the time.

[34] While the Applicant, as I stated, may well feel aggrieved that she has missed out on her redundancy payment, that grievance does not equate to a finding of unfair dismissal under the Act unless I conclude on the evidence that the reasons given do not constitute a valid reason or some other criteria under s.387 are not met, which I have been unable to in this case. As I stated earlier, the Respondent in November of 2012, had in its possession medical evidence provided by the Applicant’s solicitors indicating she was unfit to continue to work in the foreseeable future and, based on that medical evidence, made the decision to initiate termination of her employment.

[35] There is no question, nor has one been raised by the Applicant, that there has been any procedural unfairness involved in the termination; simply that the termination was unnecessary based on the fact that the Applicant was on unpaid sick leave at the time of her termination.

[36] In the Applicant’s view that situation could have remained until the Hoxton Park plant closed down. However, as I have already concluded, that may well have been a grievance but it is not one that satisfies the onus on the Applicant to demonstrate that the dismissal was unfair based on the lack of a valid reason or other reason which I must take into consideration under s.387 of the Act.

[37] Based on my conclusions, the matter is dismissed.

COMMISSIONER

Appearances:

Ms Khaleda Botris on her own behalf.

Mr David Story, Human Resources Business Partner for the Respondent.

Hearing details:

2013.

Sydney.

6 August.

 1   The true name of the Respondent has been substituted relying on s.586 of the Act

 2   [2013] FWC 2937

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