Kristy Kingston v Complete Hire and Sales Pty Ltd

[2021] FWC 620

[2021] FWC 620

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.526—Stand down

Kristy Kingston
v
Complete Hire and Sales Pty Ltd
(C2020/6174)

COMMISSIONER WILLIAMS PERTH, 8 FEBRUARY 2021

Application to deal with a dispute involving stand down.

[1] This decision concerns an application made by Ms Kristy Kingston (Ms Kingston or the Applicant) regarding a stand down dispute under section 526 of the Fair Work Act 2009 (the Act). The respondent is Complete Hire and Sales Pty Ltd (the Respondent).

[2] The dispute was initially dealt with via a telephone conference however could not be resolved.

[3] At the hearing Ms Kingston was self-represented and gave evidence. The Respondent was represented by Mr Emanuel Dillon (Mr Dillon) who is the Managing Director and also gave evidence.

Factual findings

[4] The Respondent hires and sells a range of accommodation, portable toilets, liquid waste disposals and event buildings to various industries in Western Australia.

[5] Ms Kingston was employed in August 2019 in a full-time Sales Support role.

[6] From mid-September 2019 by mutual agreement her position became part-time, working five days a week Monday to Friday 08:30 to 14:00 hours, 27.5 hours per week.

[7] Shortly thereafter the Respondent hired a second person working full-time in the role of Sales Support.

[8] In the last week of March 2020 in response to the government directions regarded COVID-19 the Respondent sent employees to work from home.

[9] At that time another employee Ms Tracy Dixon (Ms Dixon) was doing the same work as Ms Kingston but in a full-time position. 1

[10] On Monday, 30 March 2020 there was a meeting and discussion with the Applicant as to her situation. Mr Dillon’s evidence is that he never used the words stand down, he said words to the effect of “I don’t know what to call this, or what this is”. 2

[11] Mr Dillon’s evidence was that it was the Applicant’s decision to no longer be at work from that day onwards because she could not attend work because she needed to take care of her child. He says it was not a decision that the Respondent made. 3

[12] The Applicant’s understanding however was that she was stood down. That evening of 30 March 2020 Ms Kingston emailed Ms Gemma Lees-Newman (Ms Lees-Newman), who at the time of her employment was referred to as the Hire Manager 4, however Mr Dillon in his evidence refers to her as the Respondent’s Cost Controller and someone he lent upon to assist in various matters.5

[13] The Applicant’s email has the subject matter “Stand down” and referred to the morning’s discussion and asked whether she will receive a stand down letter. The email asked Ms Lees-Newman whether she wanted the Applicant to come in for the rest of the week.

[14] Ms Lees-Newman’s response was that she should finish up with her child in mind and to let her know what was best for the Applicant.

[15] She also assured the Applicant that Mr Dillon had someone formalising everything and he will be sending out something that week.

[16] Ms Kingston replied by email on the morning of Tuesday, 31 March 2020 still with the subject matter as “Stand down” stating that she would stay home from that day. She asked to be kept posted about JobSeeker and stated she was looking forward to returning to work. Mr Dillon was copied into this email.

[17] I accept in terms of that week that it was mutually convenient for Ms Kingston not to attend for work, from her perspective because the schools were closing which meant Ms Kingston needed to be at home to care for her child.

[18] Ms Kingston’s evidence is that she shortly thereafter asked to be allowed to work from home, but this was not agreed to.

[19] I accept Mr Dillon’s evidence that at this point in March and early April 2020 the situation was very unclear and the future highly uncertain for the business.

[20] Thereafter over the next couple of months I accept the evidence is that Ms Kingston made repeated attempts to contact the Respondent to clarify her return to work. Emails were sent to Mr Dillon, her Manager Ms Lees-Newman and also to Mr George Sarkis (Mr Sarkis) of HR who was formerly the Payroll Officer. Only occasionally did she get any response and most responses did not answer the questions she asked.

[21] In summary these emails 6 back-and-forth were as follows:

•  1 April 2020, Ms Kingston was enquiring as to whether she would get paid her leave as she had been stood down. Mr Sarkis replied that she would be paid the balance of her leave in the next fortnight.

•  14 April 2020, Ms Kingston enquires again about a letter regarding her stand down. Asks if she can resume working even if it’s only a couple of hours from home.

•  23 April 2020, Ms Kingston emails Mr Dillon, Ms Lees-Newman and Mr Sarkis and says she has left a couple of messages and emails and can someone please contact her. Ms Kingston says school is resuming that week and is she able to return to work? She complained she has been left in the dark and not getting any replies to her emails or phone calls. Ms Lees-Newman and Mr Sarkis both reply telling her they do not know and to wait for Mr Dillon.

•  28 April 2020, Ms Kingston emails Mr Dillon, Ms Lees-Newman and Mr Sarkis and asked if it would be easier if she came in for a chat and states that children are back to school the next day and will she be able to return to work. Mr Dillon replies to Ms Kingston stating he will draft an email later that morning and then by all means she can call him if she wants to. No email is sent by Mr Dillon.

•  30 April 2020 at 6:48 a.m., Ms Kingston again emails Mr Dillon, Ms Lees-Newman and Mr Sarkis says she is feeling very anxious and could someone let her know what is going on. She asked if she will be returning to work now that children are back at school.

•  30 April 2020 at 7:10 p.m., Mr Dillon emails Ms Kingston and says he has been trying to get advice. He complains to her that he understood she was coming back to work on 31 March to close out their discussion, but this didn’t happen. He states the Respondent continues to be affected by Covid-19. New project starts are down by 50% and housing project builders have only just been able to reopen. He says he has looked within the group for what else he could offer her, but all other business units are hotel based and shutdown or in remote locations. He says that while he has been searching for options he is running out and if she has any thoughts please share them. He states she has been a valued employee.

•  5 May 2020, Ms Kingston emails Mr Dillon and seeks to clarify what occurred on the last days she worked being 30 March 2020 and explains the email she swapped with Ms Lees-Newman regarding her staying at home to look after her child. She states she is trying to figure out where this leaves her because she seems to be the only one not returned to work.

•  6 May 2020, Mr Dillon replies amongst other things that some employees have been terminated and some are not back at work yet. Within the Respondent’s group they have had to reduce staff by over 30 people. He repeats the difficulties the business is experiencing. He asks her to let him know her thoughts moving forward.

•  22 May 2020, Ms Kingston emails Mr Dillon and says she has not responded to his last email as there is not much for her to say. She explained she understands the Respondent isn’t busy and people have been laid off and that he has looked for other options and there are none so she thought she would just keep waiting and eventually she will hear from him about returning. She states she is waiting patiently as she loves her job. She states she is looking forward to returning hopefully soon.

•  21 July 2020, Ms Kingston emails Mr Sakris to query her payslips and the fact that annual leave does not appear to have been accrued during her stand down and that she has not been paid for any public holidays. No response is received.

[22] Throughout this period Ms Kingston continued to receive payslips. In the pay period ending 15 April 2020 her annual leave was paid out. From then onwards she received payslips for zero dollars regularly. Ms Kingston did not receive JobKeeper payments.

[23] Ms Kingston’s evidence is that during this period including through to June and July 2020 there were a number of positions advertised by the Respondent for role similar to hers that were within her skill set none of which were offered to her.

[24] Her evidence was that there was not a complete stoppage of work at the Respondent and she could have been usefully employed.

[25] In late July 2020 having received no clarification from the Respondent about her return to work she pursued the matter through the Fair Work Ombudsman.

[26] The Applicant then made this application in August 2020. Following the conference convened by the Commission as currently constituted Ms Kingston’s evidence was that she put a proposal to resolve the dispute to Mr Dillon but received no response to this.

[27] On 7 September 2020 she advised the Commission she wished to pursue this application to a determinative hearing.

[28] On 10 September 2020 she received one letter that includes Mr Dillon’s explanation for what it occurred since March 2020. This letter states the reason she did not attend the workplace was due to the schools closing. He says she chose not to return and gave no notice. He says that very few staff work from home and that the Respondent reconfigured the office. He says this was not an option for her because she had a dependent. He says they did not issue any stand down correspondence and his instructions to payroll was that she would be on leave without pay. 7

[29] Separately by another letter also dated 10 September 2020 Mr Dillon advised Ms Kingston that her employment was terminated by reason of redundancy. 8

[30] Mr Dillon’s evidence was that when on 31 March 2020 Ms Kingston did not come to work that was her choice and he was unaware of this. I note however, he was copied into the Applicant’s email about this dated 31 March 2020.

[31] Whilst Mr Dillon may not have been aware that Ms Kingston would not be working from 31 March 2020 clearly the Applicant’s Manager Ms Lees-Newman by virtue of the emails and evidence before the Commission was fully aware and authorised this.

[32] Mr Dillon in his evidence repeats the proposition put in his emails of 30 April 2020 and 6 May 2020 to Ms Kingston that he as the employer had asked for her thoughts or ideas for roles within the business but did not receive a response from her.

[33] Mr Dillon’s evidence is that Ms Kingston at all times was on leave without pay at her request. 9

[34] In his oral evidence however Mr Dillon’s stated that he had not used the phrase “You’ve been stood down” nor had he used the phrase “You’re on leave without pay” because he probably would not have known at the time the difference. 10

[35] There is no evidence Ms Kingston requested to be on leave without pay.

[36] I do accept for the first few weeks of not attending work after 31 March 2020 her absence was by mutual agreement given the reduced downturn in the Respondent’s business and that schools were closed which necessitated Ms Kingston remaining at home to care for her child.

[37] Further the evidence is that from the outset on 30 March 2020 onwards Ms Kingston in her email communications to the Respondent over many months referred to being on stand down, she never mentions being on leave without pay, and Ms Kingston repeatedly asks when she can return to work - a question which is never answered by her employer.

[38] In addition, expressly on 14 April 2020 in an email that amongst others was sent to Mr Dillon she asked if she could resume working from home. Nine days later on 23 April 2020, and in a number of emails thereafter, Ms Kingston expressly points out to the Respondent that school is resuming and asks if she is able to return to the workplace.

[39] Considering all the evidence I reject Mr Dillon’s evidence that Ms Kingston was always on leave without pay at her election.

[40] Mr Dillon’s evidence was that the business did not have a stoppage of work or a shutdown. 11

[41] His evidence was that it would not have been fair for the reduced hours that needed to be worked in the Sales Support role to be shared between Ms Kingston and Ms Dixon. His evidence was that it would be unfair to Ms Dixon, because her role is full-time, to reduce her hours and so he could not have the hours that needed to be worked shared with Ms Kingston. 12

[42] His evidence was that from March 2020 onwards when COVID-19 started to affect the business Ms Dixon continued to work as usual. 13

[43] His evidence was that he expected Ms Kingston herself to conclude the was no work for her and that might have escalated things to the point where he would have looked at a redundancy. 14

[44] His evidence was that he was finding it hard to find any work for her. 15

[45] His evidence was that whilst Ms Dixon continued to work full-time this involved her doing other things such as stocktakes and tidying up the yard, renumbering, rebranding and re-stocking to keep her working full-time. His evidence was that there was not enough Sales Support work to also employ Ms Kingston. He says there was not even enough work for him or for Ms Dixon. 16

[46] Mr Dillon’s evidence was that he had given the Applicant effectively an open invitation to pick the job that suited her. His evidence was he assumed that if she needed a job and wanted a job and was trying to work for the Respondent she would have replied and said for example “I’m even happy to clean” and she would then have started the next day. 17

Consideration

[47] In the matter of Chung Yin (Kelvin) Lai v Lynkz Pty Ltd T/A Lynkz 18 Commissioner Bissett usefully explained how applications such as this should be considered by the Commission. This decision was subject to appeal and a Full Bench of the Commission in its decision19 rejecting the appeal, found no fault with this approach.

[48] Commissioner Bissett’s approach is set out below:

“[39] In Independent Education Union of Australia v The Peninsula School T/A Peninsula Grammar School (IEU v PGS) I said that:

In summary, the decision-making process in dealing with a dispute under s.526 of the FW Act is clear once the provisions of s.524 are properly understood. The first question the Commission must ask itself (in dealing with the current dispute) is if there was a stoppage of work. If the answer is no, no further enquiry is necessary. Without a stoppage of work no stand down under s.524 is possible. If the answer is yes, the next question is if the cause of the stoppage was for a reason for which the employer could not reasonably be held responsible. Again, if the answer is no (that is, the employer could be reasonably held responsible for the stoppage) then the inquiry ends. If the answer is yes, the third inquiry is whether the employee could be usefully employed because of that stoppage. Of course, in dealing with the dispute the provisions of s.526 of the FW Act, including fairness as expressed in s.526(4) must be taken into account.

[40] It is my intention to follow the same approach in relation to the matter before me.

[41] In IEU v PGS I also considered a number of authorities directly relevant to the matters to be considered in the application currently before me as set out below.

[42] In City of Wanneroo v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union-Western Australian Branch the meaning of “stoppage” was considered and defined as:

[30] The Macquarie Dictionary Online 2008 relevantly defines "stoppage" as:

1. the act of stopping; cessation of activity, etc. ….

4. a cessation of work as a protest; strike: a twenty-four hour stoppage.

[43] Whilst this was in the context of industrial action it remains apposite to the matter before me.

[44] In Australian Federation of Air Pilots v Bristow Helicopters Australia Pty Ltd (Bristow Helicopters) Commissioner Cambridge said:

[53] …the mere existence of a stoppage of work for which the employer cannot reasonably be held responsible, is not sufficient to establish the circumstances which satisfy subsection 524 (1) of the Act. There must be a direct causal connection between …the stoppage of work, and the absence of useful work for the employee who is stood down. Thus, the absence of useful work created by a breakdown of machinery or equipment and/or a stoppage of work must be the cause of any stand down.

[emphasis in original]

[45] Commissioner Cambridge also said that “[t]he circumstances contemplated by subsection 524(1)(c) of the Act would require identification of some event which involved work being consciously halted for some reason and ordinarily for some identified period of time.” [Underlining added]

[46] In Marson v Coral Princess Cruises (N.Q.) Pty Ltd T/A Coral Expeditions (Coral Princess Cruises) Deputy President Lake concluded that an event such as COVID-19 came within the ambit of s.524(1) of the FW Act. That is, it is an event for which the employer could not reasonably be held responsible.

[47] In Coral Princess Cruises Deputy President Lake said:

[10] While the events that could cause a stoppage have not been prescribed to a finite list, the requirement of a genuine stoppage has been interpreted strictly. In Bristow Helicopters, Cambridge C stated:

[62] … The circumstances contemplated by subsection 524 (1) (c) of the Act would require identification of some event which involved work being consciously halted for some reason and ordinarily for some identified period of time. A reduction in the available work for the EC 225 helicopters, for whatever reasons, does not represent a stoppage of work in satisfaction of the terms of subsection 524 (1) (c) of the Act.

…

[12] A mere reduction in available work can not constitute a stoppage – this would go against the ordinary definition of a ‘stoppage’, as is required by statutory interpretation. Such an interpretation would develop a perverse outcome where s 524(1)(c) could be applied so liberally as to deprive employees their fundamental entitlement to work under an employment relationship. In Bristow Helicopters it is clear that the employer still had trade in which it could engage and the examples set down by the Full Bench indicate that there was sufficient useful work that could be undertaken.

[13] However, there remains a question of whether a genuine stoppage of work occurs when an employer’s business is not trading, but there still exists some limited functions that can be performed. This is not a question of whether there is a stoppage of work: a stoppage exists where there is a cessation of trade. ‘Work’, according to the dictionary definition applies to the ‘activity’ of the business, which in this case relates to the carriage of passengers on various cruise holidays. This activity has entirely halted and should, therefore, be properly characterised as a stoppage of work. This continues to be the case regardless of whether some administrative or caretaker functions of the business continue to be required - these functions do not properly represent the ‘activity’ of the business.

[Endnotes omitted]

[48] In Stelzer v The Trustee for The Ideal Acrylics Unit Trust T/A Ideal Acrylics (Stelzer) Deputy President Anderson said:

[57] …what constitutes a “stoppage of work”…should not be so broadly construed as to include a mere downturn in business activity nor be so narrowly applied as to require the entire cessation of business activity. The statutory phrase is a stoppage of work, not a stoppage of the business. For there to be a stoppage of work some defined business activity with respect to which work is performed needs to cease, but not the cessation of business activity entirely. Whilst in certain circumstances both may apply, a business might still be operating notwithstanding an external event causing distinct areas of work to be sufficiently impaired so as to warrant stand downs due to a stoppage.

[Endnotes omitted]” (Reference omitted)

[49] Firstly, turning to a broader jurisdictional question, I note on the evidence that prior to the hearing of this matter the Respondent dismissed Ms Kingston from her employment. In similar circumstances the Commission has previously found that there is no jurisdictional barrier to determining a stand down dispute where the applicant employee was employed at the time of making the application. As was the case in these earlier cases previously decided by the Commission here Ms Kingston seeks a remedy for the period in which she says she was stood down not for some period after her employment ended. 20

[50] I am satisfied that the Commission has jurisdiction in the circumstances of this case to determine this dispute.

[51] Section 524 of the Act, set out below, details employer’s rights to stand down employees in certain circumstances.

“524 Employer may stand down employees in certain circumstances

(1) An employer may, under this subsection, stand down an employee during a period in which the employee cannot usefully be employed because of one of the following circumstances:

(a) industrial action (other than industrial action organised or engaged in by the employer);

(b) a breakdown of machinery or equipment, if the employer cannot reasonably be held responsible for the breakdown;

(c) a stoppage of work for any cause for which the employer cannot reasonably be held responsible.

(2) However, an employer may not stand down an employee under subsection (1) during a period in which the employee cannot usefully be employed because of a circumstance referred to in that subsection if:

(a) an enterprise agreement, or a contract of employment, applies to the employer and the employee; and

(b) the agreement or contract provides for the employer to stand down the employee during that period if the employee cannot usefully be employed during that period because of that circumstance.

Note 1: If an employer may not stand down an employee under subsection (1), the employer may be able to stand down the employee in accordance with the enterprise agreement or the contract of employment.

Note 2: An enterprise agreement or a contract of employment may also include terms that impose additional requirements that an employer must meet before standing down an employee (for example requirements relating to consultation or notice).

(3) If an employer stands down an employee during a period under subsection (1), the employer is not required to make payments to the employee for that period.”

[52] Further section 526 of the Act provides that the Commission may deal with a dispute about stand downs and relevantly section 526 (4) of the Act provides that in dealing with the dispute the Commission must take into account fairness between the parties concerned.

[53] It needs to be understood what rights section 524 of the Act provides employers.

[54] It is a fundamental term of employment that an employee who is ready, willing and available to work must be offered work and paid by their employer.

[55] Section 524 of the Act provides employers with a statutory right, in prescribed circumstances, to stand down employees which overrides the employer’s obligation to pay an employee who is ready, willing and available to work.

[56] The stand down of an employee under section 524 of the Act is available to an employer in prescribed circumstances and provides an alternative to the right of that employer to make an employee redundant.

[57] A stand down meeting the requirements of section 524 of the Act allows an employer to stop paying an employee temporarily when they cannot usefully be employed. Without this statutory right, even though the employee cannot usefully be employed, that employer would be legally obliged to continue paying the employee. The only other option would be to immediately terminate their employment.

[58] In this case there is little dispute as to what actually occurred. From the end of March 2020 through to when the Respondent dismissed the Applicant on 10 September 2020 the Applicant did not attend the workplace, did not work for the Respondent and was not paid by the Respondent other than for a pay-out of a small amount of accrued annual leave.

[59] It is apparent that up until around 29 April 2020 it was a mutually convenient for the Applicant to not attend the workplace and for the Respondent to allow her not to attend work. Schools in Western Australia had been closed and the Applicant needed to remain at home to care for her child. It is a notorious fact that at this time both the Western Australian and Commonwealth governments had imposed a range on constraints on industry, business and generally in the wider community. On the evidence it is clear these constraints had negatively impacted on the Respondent’s operations. Consequently, at this time there was no business need for the Applicant to attend the workplace and indeed the Respondent made no attempt to direct nor even request the Applicant to attend work. The Applicant had even during this period, on 14 April 2020, asked the Respondent if she could work from home but the Respondent ignored this request.

[60] On 23 April 2020 the Applicant emailed Mr Dillon, Ms Lees-Newman her Manager and Mr Sakris and ask someone to please let her know what is going on with her employment. She states as follows:

“Kids are going back to school this week, am I able to return to work? As this was the reason for my stand down?

Can you please get back to me so I know what is going on, I feel like I’ve been left in the dark and have been unsuccessful getting an email reply or return phone call.”

[61] On 28 April 2020 the Applicant advises that her children will be back at school the next day and asked if she will be able to return to work. She repeats this request the next day by email.

[62] The evidence is clear that as of 29 April 2020 the Applicant was ready willing and available to attend the workplace and work and has repeatedly asked when this would happen.

[63] The Respondent at no time asked her to return to work and continually indicated in general terms there was not work for her. Mr Dillon’s evidence at the hearing of this matter explained in detail that there was no work for the Applicant because of the impact of COVID-19 restrictions on its clients’ business and consequently the Respondent’s business. 21

[64] On the evidence I am satisfied there was a stoppage of work within the meaning of section 524 of the Act at the Respondent’s business. The cause of this stoppage was the various restrictions imposed by government to combat COVID-19 on the Respondent itself and the Respondent’s client. This was however a cause for which the Respondent could not reasonably be held responsible.

[65] Whilst Mr Dillon may not be familiar with the law regarding stand downs, I am satisfied that by its actions, not allowing the Applicant to return to work, the Respondent had stood the Applicant down from her work from the end of April 2020 onwards.

[66] I am however not satisfied that during this period the Applicant could not usefully be employed in any way because of these circumstances. Mr Dillon’s evidence was that for example if the Applicant had said she would be happy to clean she would have started the next day, not that this was ever asked of her. 22

[67] Whilst it may be arguable therefore that the Applicant’s stand down was not in accordance with section 524 of the Act that is a matter for the courts to determine not this Commission.

[68] In determining this dispute, the Commission is required to take into account fairness between the parties.

[69] The Respondent at the time employed approximately 250 employees. 23 It is not a small business with limited capacity.

[70] In fairness to the Respondent and Mr Dillon as Managing Director I accept that dealing with the dramatic consequences of the government restrictions imposed to combat COVID-19 in March 2020 with little or no notice would have been very challenging and initially involved considerable uncertainty. Not all decisions made by employers in those circumstances would be good ones.

[71] As the weeks went by however, the Respondent did have the opportunity to clarify its’ legal obligations with respect to its employees in the unusual circumstances it found itself.

[72] Turning to consider fairness with respect to the Applicant. Importantly there were two employees working in the Sales Support role doing the same work, the Applicant and Ms Dixon.

In previous decisions regarding stand downs the Commission has decided that allowing one employee to go unpaid by being stood down while others continue to work and get paid involves obvious unfairness.

[73] Deputy President Anderson in the matter of Kurt Stelzer v The Trustee for The Ideal Acrylics Unit Trust T/A Ideal Acrylics 24 found as follows:

“[67] Ideal Acrylics chose to impose almost the whole burden of the reduction in labour on one full time employee, Mr Stelzer, whilst retaining full time employment amongst other members of its manufacturing workforce. It did so because moving Mr Hocking (the director) into the single operational role conducted by Mr Stelzer (machinist) was operationally the most straightforward solution.

[68] Was this fair? There is merit in the employer’s contention that the skilled work of a machinist needed to be substituted by the skill of a director; and that this work was higher skilled work than that of a fabricator. However, the issue of fairness is not simply about who filled Mr Stelzer’s role of machinist. It also concerns where that decision left Mr Stelzer vis-a-vis other manufacturing employees. He was a long serving employee. He had trained fabricators and from time to time did fabrication work. He was ready, willing and able to do some of that work. He could have been “usefully employed” in that work. Yet the other fabricators retained their full time hours and income unchanged (as did the estimator and polisher) whilst Mr Stelzer was stood down for (what turned out to be) three months without pay.

[69] For these reasons, I am not satisfied that Ideal Acrylics fairly selected Mr Stelzer to carry almost the whole burden of stand down on an objectively verifiable basis.

[70] A fair approach would have been for Ideal Acrylics to apply some apportionment to the reduction of labour between Mr Stelzer and other manufacturing employees performing work that he was also capable of performing.”

[74] The Respondent, by its actions, had stood down the Applicant not allowing her to return to work after schools reopened as she repeatedly requested. How the Applicant was treated was is in stark contrast to the fact that the Respondent allowed Ms Dixon to continue at work for five months and so to be paid.

[75] Mr Dillon when asked whether the work could have been shared between the Applicant and Ms Dixon said no it could not and that it would have been unfair to Ms Dixon (given she had a full-time position) to tell her she could not attend for work for two or three days a week. His evidence was that if he did share the hours between the Applicant and Ms Dixon, he expected he would wind up having the same discussion with Ms Dixon because it would not be fair to her.

[76] I do not accept Mr Dillon’s view. Whilst the Applicant did benefit for the first month whilst schools were closed in that the Respondent agreed to her remaining at home to look after her child (which was also beneficial for the Respondent which did not have enough work for both employees) for the next approximately four months before she was terminated the Applicant was severely disadvantaged, not being allowed to work and not being paid. To that extent she was treated very unfairly by the Respondent.

Remedy

[77] The Commission has jurisdiction to resolve this dispute by making orders for a fair and just settlement.

[78] In all the circumstances considering fairness to the Respondent there is no need for the Commission to consider any remedy for the period between 30 March 2020 and 28 April 2020.

[79] For the period from 29 April 2020 through to 10 September 2020 the date of termination the Applicant was treated unfairly by the Respondent and I have decided to exercise my discretion and this dispute will be resolved by the ordering of an appropriate payment to be made to Ms Kingston.

[80] If the Respondent had acted fairly it could have apportioned the reduced amount of work available, i.e. the 38 hours per week Ms Dixon still worked, between her and the Applicant. One way to do that would have been to share those 38 hours based on the proportion of the total hours normally worked in Sales Support by each employee.

[81] In an ordinary week the applicant would have worked 27.5 hours and Ms Dixon as a full-time employee worked 38 hours, totalling 65.5 hours a week. Therefore, the Applicant worked 42% and Ms Dixon worked 58% of the total hours normally worked in Sales Support each week.

[82] Had the 38 hours per week Ms Dixon worked every week between 29 April 2020 and 10 September 2020 been shared between the two employees Ms Dixon would have only worked 22 hours and the Applicant would have worked 16 hours a week.

[83] In fairness to the Respondent it would not be reasonable to make an order that the Respondent pay the Applicant an amount equivalent to 16 hours pay for each week when she has not been required to undertake the work for those hours. Consequently I have decided that I will discount the amount to be paid to resolve this dispute by one quarter such that the Applicant will be paid the equivalent of 12 hours per week, for the period between 29 April 2020 and 10 September 2020.

[84] The Applicant’s annual salary was $45,000 per annum for 27.5 hours per week. Being $865 per week for 27.5 hours which equals this $31.47 per hour.

[85] The period between 29 April 2020 and the date the Respondent made the Applicant’s position redundant on 10 September 2020 is 19 weeks. An appropriate payment then to resolve this dispute is an amount equivalent to 19 weeks at 12 hours at $31.47 per hour which equates to $7,175.16.

[86] An order [PR726749] will now be issued for Complete Hire and Sales Pty Ltd to pay Ms Kingston the amount of $7,175.16 within 14 days.

Appearances:

K Kingston on her own behalf.
E Dillon on behalf of the Respondent.

Hearing details:

2020.
Perth:
November 5.

Printed by authority of the Commonwealth Government Printer

<PR726748>

 1   Transcript at PN51, PN55, PN86 and PN143.

 2   Ibid., at PN90 and PN91.

 3   Ibid., at PN246.

 4   Exhibit A1, Annexure 1 Offer of Employment.

 5   Transcript at PN84.

 6   Exhibit A1, Annexures 4 to 8 inclusive.

 7   Ibid., at Annexure 12.

 8   Ibid., at Annexure 11.

 9   Exhibit R1 at paragraph 15.

 10   Transcript at PN121.

 11   Ibid., at PN112.

 12   Ibid., at PN134 and PN210.

 13   Ibid., at PN144.

 14   Ibid., at PN211.

 15   Ibid., at PN213.

 16   Ibid., at PN214 to PN225.

 17   Ibid., at PN225 and PN227.

 18   [2020] FWC 5933.

 19   [2021] FWCFB 452.

 20   See [2020] FWC 3690 at [32] and [2020] FWC 429 at [44].

 21   Transcript at PN129, PN206, PN222 and PN225.

 22   Ibid., at PN225 and PN227.

 23   Ibid., at PN129.

 24   [2020] FWC 4129.