Kirsten Karbowiak v 1000 Mile Travel Group Pty Ltd

[2019] FWC 6112

[2019] FWC 6112

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kirsten Karbowiak
v
1000 Mile Travel Group Pty Ltd
(U2019/5895)

COMMISSIONER MCKENNA SYDNEY, 27 SEPTEMBER 2019

Application for an unfair dismissal remedy.

[1] Kirsten Karbowiak (“the applicant”) has made an application, pursuant to s.394 of the Fair Work Act 2009 (“the Act”), in which she seeks an unfair dismissal remedy of financial compensation with respect to her dismissal by 1000 Mile Travel Group Pty Ltd (“the respondent”).

[2] As to preliminary matters, there were no issues, and I otherwise find, that the application was made within time (s.396(a)); the applicant was a person protected from unfair dismissal (s.396(b)); and the dismissal did not involve a genuine redundancy (s.396(d)). I will return later in the decision to the consideration of whether the dismissal was consistent with the Small Business Fair Dismissal Code (“the Code”) (s.396(c)), and before considering the merits relating to the application.

Background

[3] This application for an unfair dismissal remedy arises against the background of circumstances which are, in some ways, atypical. There were no (past) performance-related issues raised in connection with the decision to dismiss. In some ways, the respondent’s concerns about capacity, performance or practicability were anticipatory. That is, the respondent determined to dismiss the applicant in circumstances arising from the applicant’s decision to relocate with her family from a suburb of Sydney to Orange in regional New South Wales.

[4] The respondent is a Melbourne-based travel management and booking company, solely or principally involved in work with travel professionals/corporate clients. The applicant was employed by the respondent in the role of “NSW Sales & Partnerships Manager” in the period 8 May 2017 until her dismissal, with a payment in lieu of notice, on 7 May 2019.

[5] The applicant was the respondent’s only New South Wales-based employee and she was recruited to, for instance, target the potential New South Wales market. Apart from the comparatively small employee base of the respondent, the respondent also has arrangements with a much larger number of independent contractors. The applicant’s role involved working-from-home as well as face-to-face liaison with clients, suppliers and travel agents in Sydney’s central business district (“CBD”) and surrounds, and occasional work-related travel to Melbourne. When the applicant was recruited, as a full-time employee, she then resided in a suburb of Sydney named Riverstone. The contract of employment between the applicant and respondent contained, among other provisions, a “Location” clause. The arrangements about undertaking work-from-home responsibilities were effected because the respondent was in “start-up mode” in Sydney and it was not cost-sustainable to rent office accommodation in Sydney. That location clause in the employment contract relevantly identified the usual workplace as being the applicant’s residential address in Riverstone (and, when located in Victoria, at the respondent’s head offices in Melbourne). The evidence of the respondent’s managing director, Benjamin Ross, was that a “Sydney work location was … critical to the performance of the role and I simply would not employ someone unless they were CBD based which was clear and making sure her address was on her employment contract and any move from this location would need to be approved”. Nonetheless, it should also be noted that clause 4.1 of the employment contract provides also that: “The employment of the Employee by the Company will continue to be subject to the terms of this agreement, unless varied or replaced by an agreement in writing, despite any change to the Position, Duties or Location within the scope of this agreement” (my emphasis). I do not envisage, for example, that the employment contract could reasonably be construed to tether the applicant to that particular Riverstone address. I apprehend that no issue about the applicant’s work location would have arisen if the applicant relocated to a part of Sydney which was within what might be described as something akin Sydney’s “commuter belt”; this would be within a reasonable reading of the scope of the agreement. Relocation to another part of New South Wales which is some hundreds of kilometres away from the address in the location clause of the employment contract does not seem to be within the scope of the agreement.

[6] The applicant returned to work on a part-time basis on 6 March 2019 (following consecutive periods of annual leave and parental leave which had commenced around September 2018). Within a short time thereafter, the applicant’s spouse obtained a new job which was located near Bathurst, a regional city within New South Wales. On 4 April 2019, the applicant informed an employee of the respondent she would be moving to Bathurst; that employee duly relayed matters to more senior management. In connection with the applicant’s spouse securing that new Bathurst-based job, the applicant and her spouse subsequently determined to relocate to Orange instead of Bathurst for reasons the applicant described as being related to the availability to more suitable childcare facilities or full availability of such facilities in Orange.

[7] Using Google-derived information (the estimates vary, depending on the site information), with Sydney’s General Post Office (“GPO”) in the CBD as a notional reference point:

•  the distance between the applicant’s former Riverstone home and the GPO is about 50 km;

•  the distance between Bathurst and the GPO is about 200 km;

•  the distance between Orange and the GPO is about 255 km.

[8] The applicant advised the respondent that, following the relocation, her intention was “to use public transport to travel to Sydney”, primarily by trains. The train (and/or train/bus) connection between Orange and Sydney involves approximately five hours of travel time; driving by car from Orange to Bathurst (approximately 55 km and travelling time of 45 minutes), and catching a train from Bathurst to Sydney, the applicant’s evidence appeared to suggest, results in a shorter travelling time than using public transport on all legs of the trip from Orange to Sydney. Orange also has an airport with direct flights available to Melbourne. In this regard, the applicant’s role involved occasional visits to the respondent’s head office in Melbourne.

[9] For her part, the applicant considered that she could continue to work for the respondent from Orange, and satisfactorily discharge those parts of her role which involved in-person liaison and other aspects of her role which did not involve the performance of work-from-home-based responsibilities. A majority, but by no means all, of the clients for whom the applicant would have had responsibility were within near-shot of Sydney’s CBD – where, it was anticipated by the respondent’s management, in-person liaison would, in any event, be expected mostly to be conducted.

[10] The applicant made representations to the respondent about matters, such as personally-assuming travel costs (up to around $500 each month), that would arise from additional travel and, separately, that she would make accommodation arrangements with Sydney-based family members, or make alternative accommodation arrangements, as needed. The applicant advised the respondent that “For the additional costs due to distance, I’m happy to claim the balance on my tax return rather than expensing.”

[11] Other options were canvassed, which ultimately did not find favour with the respondent because of the competitive nature of the business area in which it operates, including the applicant conducting virtual meetings instead of in-person attendance at meetings with clients and the like. Various aspects of the applicant’s proposals concerning her employment were set out, particularly, in emailed correspondence of 15 April 2019. For her part, Nicola Veltman, an executive director of the respondent, said that she explained to the applicant from the outset that the respondent’s business model was to build rapport and relationships face-to-face in preference to “over the phone or virtually”.

[12] The respondent, through its decision-makers, Mr Ross and Ms Veltman, considered it would be impracticable for the applicant to work for the business from regional New South Wales, given, for example, the issues presented by the travel distances and those components of the role which were not performed on a work-from-home basis - particularly given what the respondent’s management considered was the need to attend a minimum of two meetings a week in Sydney (not atypically required, the respondent considered, to be arranged on very short notice) and two networking events a month. The respondent held other concerns such as duty of care concerns related to significant travelling distances for work purposes. As an overlay, the decision-makers were concerned that the applicant had not been, put at its lowest, entirely forthcoming about matters related to the then-impending relocation to Bathurst and - as it later emerged - the then-impending relocation to the even more distant Orange.

[13] There were various emailed and telephone communications between the applicant and representatives of the respondent. In the end, agreement could not be reached about the applicant’s decision to relocate. On 7 May 2019, Ms Veltman sent emailed correspondence to the applicant which also attached a letter concerning the dismissal in PDF form. The covering email read, in part (as written):

“Thank you once again for your time earlier over the phone unfortunately as we were unable to come to an agreeable outcome we verbally needed to terminate your employment due to your relocation effective immediately. Please find attached the official letter to support this.

This was certainly not the outcome we were expecting when we welcomed you back from maternity leave.

…”

[14] The “official letter” which was attached to the email in PDF form read, again in part:

“This letter serves to confirm the termination of your employment for the role of NSW Sales & Partnership Manager.

Over the past few months we have been in discussion in relation to the amendment of your terms of employment (Schedule A, Part 4, Location). Unfortunately, we have not been able to reach agreement to amending these terms, notably the location of your employment. Your change of location is not reasonable for us to accommodate.

As a result, your employment is terminated by 1000 Mile Travel Group effective immediately.

You will be paid four week’s pay (base and super) in lieu of notice as per the terms of your employment contract dated 7 April 2017. …”

Small Business Fair Dismissal Code

[15] The Code was raised by the respondent in the proceedings. It reads:

“Summary dismissal

It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.

Other dismissal

In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job.

The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.

The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee's response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer's job expectations.

Procedural matters

In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.

A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to the Fair Work Commission, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.”

[16] The “Summary dismissal” provisions of the Code do not arise in this matter; the reasons for dismissal did not involve any allegation of serious misconduct and the dismissal was effected with a payment in lieu of notice. It is possible that the applicant’s relocation to regional New South Wales may engage the “capacity to do the job” criterion within the Code in the “Other dismissal” provisions of the Code, but those provisions just do not seem appositely to arise when considered in the usual sense. For example, the Code specifies that: “The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.”

[17] The dismissal did not turn on lack-of-improvement-type issues turning on “conduct or capacity to do the job”, at least as ordinarily comprehended in the authorities. The applicant was a generally well-regarded employee, albeit she did not generate nearly as much business in New South Wales as the respondent had hoped for or expected (a matter the respondent now, in light of the applicant’s evidence in the proceedings, considers may be attributable to the amount of time she was working from home in Sydney as opposed to engaging in face-to-face dealings before she proceeded on leave in September 2018). The dismissal turned on the impasse concerning the applicant’s unilateral decision to relocate to regional New South Wales (when the employment contract presupposed, and the respondent certainly considered, that the usual place of work would be within an area of reasonably proximate commuting distance to Sydney’s CBD, even if not at the exact residential address) and the unacceptability of the proposals and counter-proposals that respectively were raised by each of the parties to address this impasse. For example, the respondent had floated as an option that the applicant may wish to resign her employee position as NSW Sales and Partnerships Manager and assume an altered (sales) role as a contractor so as, in effect, to have the commuting on her own time and to allow her, as Mr Ross put it, “the flexibility to work and travel as she determined and for the business to pay based in success of winning new clients”, or, as Ms Veltman put it, so the applicant could be “directly remunerated for her sales efforts without risk to 1000 Mile Travel by her new location”. The applicant declined to resign her employment so as to become a contract worker. For her own part, the applicant had floated as an option being given a redundancy package - which the respondent declined on the basis that the position NSW Sales and Partnerships Manager was not redundant.

[18] In the end, the applicant did not “feel” that “the location impacts my current role”, whereas the respondent’s management view was that the new residential location “would not work for the business”. The dismissal was not consistent with the Code because the circumstances of the dismissal do not fit comfortably, if at all, within its parameters. It seemingly must follow, thereby, that the respondent did not comply with the Code – with the result that provisions other than those in the Code must be taken into account. In consequence, it is unnecessary to further consider the contentions of the applicant that the respondent may not have been a small business and/or that the Code was not initially raised by the respondent in response to the applicant’s application for an unfair dismissal remedy.

Harsh, unjust or unreasonable

[19] While I do not advert in this decision to the multiple matters raised in the proceedings by way of evidence and submissions, I do note that the case for each party was well-developed both in terms of evidence and written submissions, and also involved engaging oral submissions by the parties’ solicitors and close cross-examination of the witnesses. In considering whether a dismissal was harsh, unjust or unreasonable, the Commission must take into account certain matters cumulatively specified in s.387 of the Act. In so doing, I have considered the matters advanced in the parties’ cases, including, for example, that as to the question of valid reason the submissions for the applicant were that the applicant’s relocation with her family was not a matter which affected her capacity to perform her role. I turn now to those matters specified in the Act.

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)

[20] I am satisfied there was a valid reason for the dismissal related to the applicant’s capacity to undertake her role within the scope of reasonable expectations of the respondent. Included among those expectations were that the applicant should have ready availability to attend in person to the expected incidents of her employment, being those which were anchored in Sydney’s CBD or its environs, albeit the applicant had work-related dealings with persons located outside that district, and as far afield as, for example, Newcastle, Ulladulla and interstate. The applicant’s explanations and proposals as to how the geographical issues presented by her residing in regional New South Wales were not such as to persuade or satisfy the respondent that its business needs properly could be discharged by the applicant, with the respondent’s focus on generating work with clients predominantly proximate to Sydney’s CBD and also its focus on face-to-face interactions. The evidence leads me to the view that the respondent’s conclusions in such respects were not unreasonably-based. To put matters in a different context, travelling on a non-stop flight from Sydney to Perth would take approximately the same travelling time that would be involved in travelling from Sydney to Orange by train; and an employer might reasonably be concerned about an employee’s ability to responsively be available to discharge the duties of a role if residing in a location that entails such significant amounts of travel time in connection with part-time employment.

[21] Conduct-related issues did not arise around the time of the dismissal and are unnecessary to consider further, albeit the respondent’s evidence indicates there was deep concern, or deep concern has now belatedly now come into sharper focus in defending the application, about the applicant’s failure to disclose that she was relocating or contemplating relocating. The matter of relocation to Bathurst was presented as a fait accompli, and the applicant had not engaged in any consultation about matters to the time she conveyed her advice about that relocation. The applicant developed her own proposals about how work commitments would be met during her two days (or as had been proposed, but the details were not ironed-out before the dismissal, three days) of work each week where the respondent expected a solid, Sydney-based presence involving at least a couple of face-to-face meetings weekly as well as attendance at work-related networking functions. The applicant subsequently determined to relocate from Sydney to an even more distant location than Bathurst, namely Orange; she did not provide any information to the respondent about the relocation to Orange at any point in time before that matter indirectly came to the attention of the respondent (after information about a Facebook post concerning the Orange relocation was conveyed to Mr Ross by another employee).

Whether the person was notified of that reason

[22] The applicant was advised in discussions that preceded the eventual dismissal that dismissal was being considered. Alternative options were also canvassed, albeit ones which were considered unsatisfactory by the applicant, such as a resignation by the applicant and re-engagement as a contractor so the commuting would be undertaken on her own time (in this regard the applicant indicated, for example, she would likely work or sleep while commuting by train).

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

[23] The applicant advanced a range of reasons and proposals which she considered should assuage the concerns of the respondent about her capacity to undertake her role, and also to undertake that role considered against the background of duty of care considerations for the respondent given the amount of travelling that necessarily would be associated with commuting to Sydney in her part-time employment. Mr Ross recounted that in a telephone conversation on 24 April 2019:

“I explained to [the applicant] my disappointment in the way that she had not raised her decision to move and I felt it had damaged the trust we had in her. At no point in the discussion did [the applicant] say that she would reconsider her decision and stay in Sydney. Rather, [the applicant] insisted that she was able to do the job virtually from Bathurst and that she could commute to Sydney once a week. The impression that I formed from what [the applicant] was saying to us was that her decision to move to Bathurst had already been made and the only options she would entertain were how the business would need to work around her. I stated to [the applicant] that her employment could not continue on this new basis.”

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

[24] There was no evidence of any unreasonable refusal by the respondent to allow the applicant to have a support person to assist with discussions relating to the dismissal. The applicant had a support person in certain discussions.

If the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

[25] The dismissal did not relate to unsatisfactory performance prior to the applicant’s dismissal and, so, questions about performance-related warnings do not relevantly arise.

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 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

[26] The respondent is a smallish, but expanding, family-run business operated ultimately by the married team of Mr Ross and Ms Veltman (even if it may not strictly be a “small business employer” within the meaning of s.23 of the Act, as the applicant contended but which is unnecessary to finally determine given to matters to which I referred earlier). There was no evidence the respondent had in-house dedicated human resource management specialists or expertise, albeit Ms Veltman had internally assumed responsibilities for certain human resources-type matters. The respondent’s own senior management dealt themselves with matters concerning the applicant. The respondent then also engaged an external human resources professional in April 2019 to assist with the situation that had arisen concerning the applicant. Some of the actions of the respondent might be considered to be imperfect, at least viewed from the perspective of the applicant, but matters were in somewhat of a state of flux following the applicant’s return to work from parental leave. It appears, for example, that an agreement had been reached that the applicant would return to work two days a week and she then sought to return three days a week; she also sought or, at least on a description in the respondent’s case, made constant “demands” to swap and change her days of work around her move “which had been dropped like a bomb” on the respondent. The respondent appeared not only willing to accommodate the applicant’s proposal in such respects, but had also made proposals about a graduated increase in the number of days in anticipation of a resumption of full-time employment – a matter about which the applicant, in turn, considered as constituting inappropriate pressure to return to full-time employment with the respondent. Communications were also being made about matters such as remuneration structure, involving proposal by the respondent (with which the applicant did not agree) and about a return to work for three days (about which both parties appeared to be in agreement). The relocation issue appears to have become conflated, at least somewhat, with the discrete matters concerning the remuneration structure and the part-time work and arrangements. The respondent was not, I note, at liberty to unilaterally change the remuneration arrangements in the employment contract; these were matters for negotiation and agreement before the employment contract could be varied.

[27] If the respondent had been a larger organisation with more employees to whom work could be allocated or redistributed in New South Wales it may be the case that advised consideration may have been made to allow at least a monitored trial (however described) of whether the applicant could, as the applicant contended, fulfil her part-time role to the satisfaction of the respondent while residing in Orange and commuting to Sydney to undertake those necessary parts of her role and responsibilities where physical attendance would otherwise have been the norm expected by the respondent for meetings and networking events. That being said, and particularly noting the size of the respondent’s employee workforce, I accept the primary position of the respondent, as outlined, for example, in the evidence of Mr Ross, that: “I was deeply concerned about how [the applicant] could continue to provide effective CBD coverage for our business in accordance with the requirements of her role. You cannot run a Sydney CBD based role from central NSW. … In reviewing [the applicant’s emailed proposal of 15 April 2019], I felt that the plan was unworkable …”. Mr Ross was entitled to his own view about such matters, just as the applicant was entitled to hers – but it was the prerogative of the respondent to determine that it expected face-to-face dealings in preference to other modes of remote work-related communications. To similar effect, Ms Veltman also indicated (in response to the applicant’s observation that she was “… never provided with the opportunity to show that I could continue to perform the duties of my role as NSW Sales and Partnerships Manager from my new house”), that “I didn’t see this working for the business so [I] didn’t see any point in wasting time in trialling something that was not going to work operationally”. I do not consider that it was unreasonable for the respondent to not accept telephone or video-conferenced meetings as being an appropriate alternative when the applicant would, but for her relocation, have been expected to conduct meetings in person and in Sydney. The applicant’s proposals in such respects were considered by the respondent to be sub-optimal as against conducting meetings in person in the competitive industry in which it operates; and that does not seem objectively unreasonable – albeit it also may be noted that some clients, suppliers and travel agents may themselves have been content with, or even prefer, discussions conducted by telephone or videoconferencing. Others in the industry equally may prefer or expect personal attendance of an employee of the respondent concerning the conduct of business – and that was the means that the respondent certainly considered more optimal for business.

Any other matters that the Commission considers relevant

[28] There were suggestions in the applicant’s case that the dismissal was underpinned by reasons related to part-time leave for caring purposes, consequent upon the return from parental leave, and the applicant’s expressed concerns about proposals related to an altered remuneration structure. That is, it was submitted that the respondent wished to replace the applicant with an employee who did not have carer’s responsibilities and was thus able to work full-time; or the respondent wished to replace the applicant with an employee on a remuneration structure that was lower than the applicant would earn as her entitlement to commissions increased.

[29] The evidence does not lead me to a conclusion that the dismissal was motivated by any parental/carer’s leave-related issues, or remuneration-related issues; or that either one or both these matters were the “real reason” for the dismissal. The applicant herself noted in an email of 15 April 2019 she “really appreciate[d]” the respondent’s financial support to her during parental leave by way of extending certain commission payments which she described as “not an obligation but something you have done to support me”. Similarly, the respondent did not oppose the applicant’s request to return to work for three days a week, rather than the two days which apparently had been the subject of earlier agreement between the parties; indeed, graduated return to full-time work arrangements were proposed by the respondent – and it was never the case that the respondent had agreed that the applicant could remain, open-ended or indefinitely, on part-time work arrangements. Mr Ross also took the time to arrange the delivery of a gift around the time the applicant’s baby was born. The respondent’s actions in connection with the parental leave and part-time work do not seem to me to indicate that the respondent was antithetical in its approach to parental leave and the associated return to work on part-time arrangements. Moreover, it is an everyday incident of workplace relations that one or other of the parties to an employment contract may seek to negotiate changes to the existing contractual arrangements – and, here, changes could not be effected unilaterally given the requirement for written agreement to vary.

[30] Last, while I have noted that the applicant was considered to be a valued employee the evidence in the respondent’s case indicated the concerns, in the end, about the fact the applicant seems - from evidence that was common ground as to dates of emailed communications and the content of what was discussed on certain dates about relocation-related matters - to have withheld information from the respondent that she was considering relocating and/or had made a definite decision to relocate. Even accepting that a decision was made to relocate to Orange at a point of time after the initial advice to the respondent concerning relocation to Bathurst, the fact remains that the applicant did not herself disclose to the respondent that the relocation venue had changed to Orange. The respondent learned on 7 May 2019 that the applicant was moving, or had moved, to Orange, not Bathurst - with such information having been disseminated on Facebook, but not communicated directly to the respondent. Mr Ross was “very angry” when he learned of this and “in disbelief” that this had not been communicated to him by the applicant herself; and which he considered “made an untenable situation for the business even worse”. It is unfortunate that the applicant took a seemingly cavalier approach to keeping her employer abreast of developments. It is also unfortunate that it should have come to pass that the information about the Orange relocation was not personally conveyed by the applicant to the respondent and that such information came to the attention of Mr Ross after having been the subject of a Facebook post. The evidence indicated that, in the final discussions, matters were put to the applicant querying why she should be trusted. However, the dismissal reasons themselves did not refer directly or indirectly to trust, fidelity or confidence as otherwise referred to the submissions for the respondent. Moreover, as to such matters, the respondent was prepared, even as of the date of the dismissal, to engage the applicant into the future as a contractor and have the commuting on her own time and flexibility to work and travel as she determined, with results-based payments.

[31] In a subsequent telephone conversation various such matters were discussed - with the final outcome being advice by Ms Veltman that she had no choice but to terminate the applicant’s employment. Ms Veltman explained in her evidence some of the factors which had informed her decision to dismiss the applicant - culminating in evidence-in-chief which read at paragraph 51:

“…

g. I had considered that the way she had misled [Mr Ross] and I together with the impossibility of her actually doing her role at the level of effectiveness required was not reasonable to bear the cost of what would only be an inevitable failure (much less the lost time and opportunity which could be gained in replacing her as soon as possible);

h. I had lost trust and confidence in her to put the business before herself and that the business would suffer as a consequence. We needed an employee living and working in the Sydney area to make the most of the business opportunities as they came up if our business was to grow. This was the basis upon which 1000 Mile Travel employed her and she chose to walk away from that commitment to be in Sydney. She also made no apology for her actions.”

[32] It appears to be common ground that the applicant was not accused outright of dishonesty in connection with the dismissal, albeit the perceptions of Mr Ross and Ms Veltman as to such matters subsequently infused the case for the respondent in the proceedings.

Conclusion

[33] My consideration of the evidence and submissions does not lead me to conclude the applicant has established a case of harsh, unjust or unreasonable dismissal. I am satisfied that the pivotal reason for the dismissal was as recorded in the formal letter confirming the dismissal – namely the relocation issue. This was not a case where an employer was unreasonably refusing to accommodate flexible, work-from-home arrangements for a part-time employee upon her return from parental leave (e.g. see s.65 of the Act); the respondent held what were objectively legitimate concerns about what would work-in with its business exigencies when the applicant would reside in Orange, particularly concerning its expectation for the applicant to be available and to be engaged in her role in personal, physical attendance at meetings and the like.

[34] The respondent did not rely in its letter of dismissal on any matters concerning concealment or the lack of disclosure about the relocation to Orange, after having been advised only about relocation to Bathurst. The applicant agreed that she did not “specifically mention our decision to live in Orange rather than Bathurst … because I did not consider that there was any significant difference between my ability to do my job from Bathurst or from Orange …”. This concealment or lack of disclosure is a matter which would, however, have been relevant to the discretionary question of any remedy sought by the applicant. As I have concluded that the application is being dismissed, it is unnecessary to further consider the impact of this regrettable matter on any order for an unfair dismissal remedy that may otherwise have ensued.

[35] An order dismissing the application for an unfair dismissal remedy will issue in conjunction with this decision.

COMMISSIONER

Appearances:

A Macinnis, solicitor, for the applicant.

C Gianatti, solicitor, for the respondent.

Hearing details:

2019.

Sydney, and Melbourne (by video-link):

August 28.

Printed by authority of the Commonwealth Government Printer

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