L.Arthur Proprietary Limited
[2022] FWC 1911
•21 JULY 2022
| [2022] FWC 1911 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.120—Redundancy pay
L.Arthur Proprietary Limited
(C2022/2757)
| DEPUTY PRESIDENT MASSON | MELBOURNE, 21 JULY 2022 |
Variation of redundancy pay – other acceptable employment offered– redundancy entitlement reduced.
Introduction
On 5 May 2022, L.Arthur Proprietary Limited (the Applicant) made an application pursuant to s.120 of the Fair Work Act2009 (the Act) for variation of the obligation to pay redundancy pay pursuant to s.119 of the Act. The Application is made in relation to a former employee, Ms Pinar Zappone.
The matter was set down for hearing on 19 July 2022. The Applicant filed material in accordance with the directions issued. The Respondent advised my chambers on 30 May 2022 that it wished to rely solely on the Form F45A and written material already filed.
At the hearing, the Applicant was represented by Mr Vincent Arthur, Managing Director of the Respondent, who gave evidence while Ms Zappone was self-represented and also gave evidence.
Background and evidence
On 19 December 2011, Ms Zappone commenced employment as an Accounts Payable/Receptionist with the Applicant and was employed at its West Melbourne site.
In July 2018, Ms Zappone moved into the workshop assuming the position of Worksop Receptionist and reported to the Workshop Manager. At the time of her termination of employment, Ms Zappone was in receipt of an hourly rate of pay of $30.00 and worked on a part-time basis for 32 hours per week. Ms Zappone states that her duties in the Worksop Receptionist role[1] were as follows;
· Primary Contact with Vic roads;
· Registering/Deregistering company trucks, trailers, forklifts, stackers, etc;
· Entering data into FleetMex System;
· Raising purchase orders in Pronto System;
· Liaison with Accounts Department in Philippines;
· Filing;
· Assisting with yearly/2 years audits of Mass Managed Fleet;
· The preparation of various reports including; Costing reports; Forecast reports; Servicing reports; Trailer reports and Maintenance and Service Reports;
· Dealing with creditors;
· Ordering servicing books/stickers and forklifts books;
· Reconciling statements;
· Chasing up forklift hours/odometer readings every month to update reports;
· Contractor pays;
· Chasing credits/invoices from suppliers;
· Dealing with any discrepancies we had with suppliers;
· Closing off at end of month (EOM);
· Maintaining filing cabinets;
· Updating MSDS folders for OH&S;
· Overseeing inductions;
· Stationary orders;
· Housekeeping (ie. Doing dishes, keeping my office clean and respectable);
· Picking up parts from Suppliers on occasion;
· Helping mechanics drop off/pickup trucks from other depots;
· Obtained my Forklift License so I could help out in the Workshop when they were under staffed and needed help moving heavy items; and
· Obtained my First Aid Certificate in case our OH&S representative for the area wasn’t available and there was a medical emergency.
Mr Arthur, while not challenging most of the duties of the role set out by Ms Zappone, characterised those duties for the most part as administrative in nature and felt she overstated the role in certain respects. As regards the fork lift license referred to, he stated that was not a duty required in the role. It was agreed by Ms Zappone and Mr Arthur that the invoicing duties comprised 50% of the role.
At the time of Ms Zappone’s dismissal, the Applicant was in the process of moving its workshop facility from the West Melbourne site to a new location at Laverton, a transition that was still underway at the time of the hearing of this matter.
In December 2021, a new Workshop Manager, Mr Tom Hotchin, commenced with the Applicant. In the same period Ms Zappone took a period of annual leave, suffered a bout of COVID-19 and agreed to work from home until her children’s return to school in February 2022.
On 28 January 2022, Ms Zappone attended the workplace with her daughter. Mr Hotchin subsequently made an OH&S complaint regarding her attendance at site with her child. The complaint was communicated by Mr Vincent to Ms Zappone in a telephone discussion following which Ms Zappone sent an email[2] to Mr Hotchin proposing her working arrangements in terms of days she spent in the workshop as opposed to working from home. Ms Zappone states that Mr Hotchin responded by advising her that she should continue to work from home indefinitely.
On 1 February 2022, Ms Zappone made a formal bullying complaint[3] about Mr Hotchin to Mr Vincent and the Applicant’s Safety and Compliance Manager, Anthony Dodd. Mr Arthur explained in his evidence that the instruction given to Ms Zappone to not attend the workplace was because of the issues raised by her regarding Mr Hotchin and the need for the Applicant to work through those matters.
On 2 February 2022, Ms Zappone contacted the Applicant’s IT department regarding call forwarding arrangements while she was absent from the workplace. At this point she says she became aware that her access to the Applicant’s IT systems had been removed. Ms Zappone confirmed in her evidence that her IT system access was not restored prior to her termination of employment. Mr Arthur was unable to refute that evidence.
From 2 February 2022 to 14 February 2022, Mr Dodd variously called[4] and emailed[5] Ms Zappone in order to set up a meeting to discuss the bullying complaints raised in her 1 February 2022 email. A meeting on 21 February 2022 was ultimately arranged.
On 21 February 2022, a meeting at site was held involving Ms Zappone and Mr Dodd. Ms Zappone states that during the course of that meeting, Mr Dodd explained to Ms Zappone it would not be possible for her work in the workshop at the new Laverton location as it only had one portable toilet in the new workshop. Mr Dodd also asked Ms Zappone when she would be able to return to work (at the West Melbourne site) to which she responded that she could return in approximately one week.
On 2 March 2022, Mr Dodd emailed[6] Ms Zappone and advised that her return to work would be further delayed due to an investigation of other matters that had recently arisen, the details of which were not provided to Ms Zappone at that stage.
When questioned during the hearing regarding the investigation referred to above, Mr Arthur stated that following Mr Hotchin’s commencement in the Workshop Manager role in December 2021, he identified what appeared to be irregularities in invoicing from suppliers. On that issue being raised with him by Mr Hotchin, Mr Arthur states that he then initiated an investigation, although he was unable to state with certainty when that investigation commenced. He further confirmed that the irregularities identified were serious as they involved suppliers overcharging the Applicant and related to the processing of workshop invoices which Ms Zappone was involved in from an administrative perspective. Mr Arthur confirmed that no allegations of misconduct were put to Ms Zappone, nor was she interviewed by him during the course of his investigation. Notwithstanding that, Ms Zappone was effectively stood down on pay from work from on or about 2 March 2022 because of that ongoing investigation.
On 10 March 2022, a Zoom meeting was conducted involving Ms Zappone, her support person, Mr Arthur and Mr Dodd. Ms Zappone states that the purpose of the meeting was not detailed to her prior to the meeting although she understood its purpose was to discuss her concerns regarding Mr Hotchin. An audio recording of the Zoom meeting[7] was provided by the Applicant to Ms Zappone following the meeting and was in evidence in these proceedings. The audio of the meeting relevantly recorded that;
· Ms Zappone’s complaints regarding Mr Hotchin were not the focus of the meeting. Rather, the focus of the meeting was the restructuring of workshop administrative support and the impact of that restructure on Ms Zappone.
· Mr Arthur opened the discussion by identifying a need to “have a conversation and hopefully move things forward or otherwise not move forward”. He then referred to Ms Zappone having not been working for a few weeks and the fact that the Company was still paying her. He then stated that this arrangement was “not fair” to Ms Zappone or the Company.
· Mr Arthur then outlined that the Applicant had decided to restructure the administrative support provided to the workshop. This meant that Ms Zappone’s role of Workshop Receptionist was no longer required, this being due to restructuring and Mr Hotchin’s reduced administrative support needs compared to his predecessor;
· Mr Arthur stated that the Applicant was anxious to retain Ms Zappone as an employee given her experience, knowledge and long service and offered her an alternate role in the Customer Service team; and
· Mr Arthur explained the nature of the invoicing discrepancies that had been the subject of investigation and confirmed to Ms Zappone that she was not accused of any misconduct in relation to those invoicing discrepancies.
Mr Arthur elaborated in his evidence on the nature of the restructure of the Workshop Receptionist role that had occurred. He explained that as a consequence of the investigation of the invoicing discrepancies, a decision had been made by him to remove that work from the Workshop Receptionist role and place that work with the accounts and credit department. This, he said, would ensure a more robust management of invoice processing moving forward. Ms Zappone estimated that the invoice processing work had occupied 50% of her time in the Workshop Receptionist role.
Of the balance of the Workshop Receptionist duties, Mr Arthur stated that Mr Hotchin was skilled, able and preferred to do all of his own administrative tasks and consequently did not require the same administrative support required by his predecessor. While Ms Zappone challenged Mr Arthur’s assertion that Mr Hotchin had the necessary skills to do those administrative tasks formerly performed by her, she conceded that she was unable to dispute that the role she formerly performed no longer existed.
Following the meeting held on 10 March 2022, Mr Vincent sent an email[8] to Ms Zappone which confirmed the restructure of the administrative support to the workshop. The email relevantly stated as follows;
“…
Following on from our meeting today as advised we have restructured the way we are providing admin support to the workshop which has made your current position redundant.
However we are happy to offer you an alternate position which is well suited to your capability and experience as Customer Services Officer.
I have attached a draft outline of the duties of the position. It is located at the reception desk as 660 office and the hours can be flexible to suit your school drop-off/pick-up needs.
We can fine tune the role description and hours if you are interested to continue with us in the new role.
The hourly rate of the new position is $32/hr.
As I indicated we very much would like you to continue with us as you have strong experience and have been a long serving and valued employee.
We will appreciate if you can advise us if you are interested in the new role by March 18. If you would like to discuss please give me a call.
Also I did try and send you the recording of our Zoom meeting, however the file was too big to get through. Do you have access to file sharing service. Otherwise we could put it on a thumb drive when you are next in.
…”
Attached to the above-referred email sent to Ms Zappone was a list of the proposed duties for the Customer Service role as follows;
“…
- Monitoring email, responding when possible and categorising.
- Updating work slips, underbound ppw, releases, signed inspections, pick up dockets, packing lists etc into the jobs in ATLAs and naming them correctly for Janet to invoice.
- Processing COD payments (Any division) – Via phone or email, including uploading this information to the job once processed to confirm this has been achieved.
- Assisting OneHalf with any queriers they have.
- Sit in LAQ when needed (people absent) – Then attending to drivers that arrive.
- Enter employee clock/off times into Genpro when necessary.
- Receive and organise clock cards for workshop.
- Administrative/Reception duties such as…
- Filing, paperwork as well as insuring work slip inspection forms are always available for employees in LAQ.
- Processing uniform orders for warehouse/LAQ employees.
- Answering and directing phoner calls.
- Accepting deliveries for the office e.g. A1 supplies and ensuring all goods are delivered.
- Office works and Coles ordering/putting away.
- Greeting and directing guests.
- Receive and organise mail/parcels for throughout the office.
Other duties as required.”
On 16 March 2022. Ms Zappone filed a Form F8C[9] general protections non-dismissal dispute with the Fair Work Commission pursuant to s.372 of the Act. The Applicant filed a Form F8A[10] response on 25 March 2022.
On 17 March 2022. Ms Irene Lin of A Whole New Approach wrote to Mr Dodd in the following terms;
“…
Good Afternoon,
We are writing to inform you that A Whole New Approach Pty Ltd has been retained by Ms Pinar Zappone to pursue an action against L.Arthur Pty Ltd in the Fair Work Commission under the Fair Work Act 2009. This action is being taken in order to seek remedies for your alleged unfair treatment of Ms Zappone.
Ms Zappone has instructed us to exhaust all possible solutions so that he achieves what is a rightful outcome. We are at all times willing to discuss a resolution to the matter so that an Arbitration hearing can be avoided. Ms Zappone has indicated that if a solution is not found she is determined to pursue the matter.Yours Sincerely,
…”[11]
On 17 March 2022 Mr Dodd responded to Ms Lin’s email in the following terms;
“…
Dear Ms Lin,
Thank you for your e-mail. You may be aware that Ms Zappone’s position has been made redundant and she has been offered alternative duties at a higher pay rate. The reasons for the redundancy and details of the alternative duties were provided to Ms Zappone on March 10th. Ms Zappone requested until tomorrow, March 18, to consider the alternative duties.
I will be happy to meet with Ms Zappone and her representative at our offices tomorrow at a time of your convenience before 2.30pm to discuss Ms Zappone’s response to our offer of alternative duties and any concerns she has.
If we are not advised as to Ms Zappone’s position in relation to the alternative duties offered by close of business tomorrow then we shall assume that she has elected not to accept the alternative duties and proceed to terminate her employment.
…”[12]
Ms Zappone did not meet with or otherwise respond to the Applicant in respect of the proposed Customer Service role on or by 18 March 2022. She was subsequently terminated by the Applicant on the basis of redundancy.
Statutory Framework
Section 119 of the Act provides for the following redundancy pay entitlements;
“119 Redundancy pay
Entitlement to redundancy pay
(1)An employee is entitled to be paid redundancy pay by the employer if the employee’s employment is terminated:
(a)at the employer’s initiative because the employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour; or
(b)because of the insolvency or bankruptcy of the employer.
Note: Sections 121, 122 and 123 describe situations in which the employee does not have this entitlement.
Amount of redundancy pay
(2) The amount of the redundancy pay equals the total amount payable to the employee for the redundancy pay period worked out using the following table at the employee’s base rate of pay for his or her ordinary hours of work:
Redundancy pay period Employee’s period of continuous service with the employer on termination Redundancy pay period 1 At least 1 year but less than 2 years 4 weeks 2 At least 2 years but less than 3 years 6 weeks 3 At least 3 years but less than 4 years 7 weeks 4 At least 4 years but less than 5 years 8 weeks 5 At least 5 years but less than 6 years 10 weeks 6 At least 6 years but less than 7 years 11 weeks 7 At least 7 years but less than 8 years 13 weeks 8 At least 8 years but less than 9 years 14 weeks 9 At least 9 years but less than 10 years 16 weeks 10 At least 10 years 12 weeks
Section 120 of the Act confers on the Commission a discretion to reduce the amount of redundancy pay to which an employee would otherwise have been entitled under s.119. It provides as follows:
“120 Variation of redundancy pay for other employment or incapacity to pay
(1)This section applies if:
(a) an employee is entitled to be paid an amount of redundancy pay by the employer because of section 119; and
(b) the employer:
(i)obtains other acceptable employment for the employee; or
(ii)cannot pay the amount.
(2)On application by the employer, the FWC may determine that the amount of redundancy pay is reduced to a specified amount (which may be nil) that the FWC considers appropriate.
(3)The amount of redundancy pay to which the employee is entitled under section 119 is the reduced amount specified in the determination.”
Authorities
The approach I intend to adopt in determining this matter is that set out by the Full Bench in Australian Commercial Catering Pty Ltd Powell and Togia; Powell v Australian Commercial Catering Pty Ltd[13] where the following was stated;
“[35] In considering an application made by an employer under s.120, the Commission must first consider whether either of the circumstances set out in paragraphs (a) or (b) of s.120(1) applies. Consideration under s.120 is enlivened upon an application being made by the employer for a reduction in the amount of redundancy pay otherwise payable under s.119. In dealing with such an application, the Commission must first determine whether the pre-conditions for the application of the section set out in s.120(1) are satisfied - that is, that the employee the subject of the application has an entitlement under s.119 to redundancy pay, and that the employer has either obtained other acceptable employment for the employee or cannot pay the redundancy entitlement.
[36] As was pointed out in the Full Court decision, “The origin of s 120 lies in the decision of the Full Bench of the Conciliation and Arbitration Commission in Termination, Change and Redundancy Case (1984) 8 IR 34 to introduce an entitlement to severance pay for all employees under federal awards whose employment had been terminated because of redundancy”. Cases decided in relation to award provisions established pursuant to those test case provisions are therefore relevant in the consideration of s.120.
[37] In relation to s.120(1)(b)(i), whether alternative employment obtained by the employer is “acceptable” is to be determined objectively, not by reference to whether the employment is subjectively acceptable to the employee. The determination of whether alternative employment is acceptable requires an assessment and value judgment on the part of the decision-maker. The employer “obtains” other acceptable employment when it acquires or gets the employment by its conscious, intended acts.7
[38] Once it is concluded that the preconditions in s.120(1) are satisfied so that s.120 is applicable, it will be necessary for the Commission to determine under s.120(2) whether the employee’s entitlement to redundancy pay under s.119 should be reduced and, if so, by how much. This requires the exercise of a broad discretionary power. Any determination by the Commission for a reduced amount of redundancy pay then becomes the employee’s entitlement under s.119: s.120(3)” (Citations omitted)
Central to the present matter is whether the alternate employment offered by the Applicant to Ms Zappone constituted ‘other acceptable employment’ for the purpose of s.120 of the Act. The Commission has considered the meaning of the words ‘other acceptable employment’ in numerous authorities which were helpfully summarised and considered at length by Deputy President Sams in Spotless Services Australia Limited t/as Alliance Catering[14] (Spotless). The Deputy President also summarised the key considerations in one of his earlier decisions in DRW Investments t/as Wettenhalls v Timothy Richards & Others[15] where the following was said;
“[183] Notwithstanding the above general principles, whether the alternative employment is acceptable, will likely include consideration of the following matters:
· rate of pay;
· hours of work;
· work location;
· seniority;
· fringe benefits;
· workload;
· job security;
· continuity of service;
· accrual of benefits;
· probationary periods;
· carer’s responsibilities; and
· family circumstances.”
This list is not exhaustive. There may be other relevant factors.”
In Spotless, the Deputy President in referring to the authorities to which he had considered in the decision, relevantly stated as follows
“[65] The above decisions have some common features, including:
·The test of what constitutes ‘acceptable employment’ is an objective one. It does not mean it must be acceptable to the employee.
·Acceptable employment’ is not identical employment, as no two jobs could be exactly the same.
·An employee must meaningfully cooperate with the employer in exploring or considering options for alternative positions.
·An employee’s prima facie entitlement to redundancy pay may be at risk if the employee refuses a role or position, which is found to be objectively ‘acceptable’.
·The acceptance of alternative employment by one or more persons in a group of redundant employees, does not necessarily make the alternative employment ‘acceptable’ for all of them. Each employee’s individual circumstances must be taken into account.
·There are a range of factors of varying weight, according to an employee’s particular circumstances, which may be taken into account to assess the acceptability of alternative employment.”
Consideration
It follows from the above statutory provisions and the authorities to which I have referred that in the circumstances of this case it will be necessary for me to;
· firstly, determine whether the Ms Zappone is entitled to a redundancy payment under s.119 of the Act;
· subject to establishing Ms Zappone has a redundancy entitlement pursuant to s.119 of the Act, determine whether the Applicant had obtained ‘other acceptable employment’ for her; and then
· if a finding is made that ‘other alternate employment’ was obtained by the Applicant for Ms Zappone, it will be necessary for me to determine whether Ms Zappone’s entitlement under s.119 of the Act should be reduced and if so by how much.
Section 119(1)(a) of the Act
There was no dispute between the parties that the role formerly held by Ms Zappone, that of Workshop Receptionist, was no longer required to be performed by anyone due to a restructure of administrative duties in the Applicant’s workshop. It follows therefore that Ms Zappone was entitled pursuant to s.119(1)(a) of the Act to a redundancy payment.
Having regard to Ms Zappone’s length of service of over 10 years (19 December 2011 – 18 March 2022) she is entitled to a payment of 12 weeks pay under s.119(2) of the Act. Based on her hourly rate of pay of $30.00 and her ordinary hours of 32 hours per week, this would result in a redundancy entitlement of $30.00/hour x 32 hours per week x 12 weeks which equates to $11,520.00 gross.
Section 120(1)(b)(i)
As the authorities make clear, the assessment of whether the Customer Service role constituted ‘other acceptable employment’ obtained by the Applicant is an objective assessment to be undertaken by the Commission. It does not in the present case turn on whether Ms Zappone or the Applicant regards the role as ‘acceptable’ or ‘unacceptable’. It is to that objective assessment I now turn.
Firstly, a number of matters point strongly to the role constituting ‘other acceptable employment’. Specifically, the proposed hours of work were the same, with Ms Zappone offered continued flexibility with respect to managing her family commitments (i.e. school drop-off and pick-up times). The geographic location of the role was the same, that of the West Melbourne site, albeit the role would have placed her in site reception which was in a different building on the site to that of the workshop. The rate of pay proposed was that of $32.00/hour, representing an increase of $2.00/hour over the rate she had been paid in the Workshop Receptionist role. Continuity of service, job security and accrued entitlements were all unaffected by the proposed change in role.
Turning to the respective duties of the roles, the subjective views held by the Applicant and Ms Zappone on the duties of the new role compared to the former role diverged significantly. Ms Zappone characterised the role as a ‘step down’ from the workshop role, stated that it was a more junior role and therefore did not constitute ‘other acceptable employment’ for the purpose of s.120(1)(b)(i). She referred to various aspects of the workshop role that she says elevated that role above the Customer Service role including; preparation of various reports, primary VicRoads contact point, liaising with creditors and dealing with supplier discrepancies, obtaining and using her forklift license on two occasions and overseeing inductions.
For its part, the Applicant disagreed with Ms Zappone’s characterisation of the proposed role as a step down. Mr Arthur gave evidence as to the importance placed by the Applicant on improving its level of customer service and that Ms Zappone’s knowledge of the business would have been valuable in supporting that objective. While the position was located at reception it would, according to Mr Arthur, be wrong to see the role as merely a glorified reception role. He also pointed to the value attached to the role by the Applicant in proposing an hourly rate of pay of $32.00/hour.
I am satisfied that the proposed Customer Service role was largely administrative with a range of tasks requiring data entry, filing and ordering materials. I am also satisfied that the former Workshop Receptionist role was also largely focused on administrative tasks as evidenced by Ms Zappone’s confirmation that invoicing represented 50% of her workload in that role. Housekeeping, filing and office supply ordering were also features of both roles.
I readily accept that some aspects of the proposed Customer Service role were different, such as the absence of particular workshop related tasks including site inductions, picking up parts from suppliers on occasion or helping mechanics drop off or pick up vehicles. There was no evidence however that these duties constituted a significant portion of Ms Zappone’s time. My view on this is fortified by the fact that Ms Zappone spent much of the last two years working from home and in doing so continued to perform what were largely administrative tasks. As regards Ms Zappone acquiring a fork lift license, I accept Mr Arthur’s evidence that the possession and use of a fork-lift license was not a requirement of the Workshop Receptionist role. In any case, Ms Zappone says she only drove a fork-lift twice in the workshop since obtaining the license in late 2021, which indicates the duties could not have been a significant component of her role, even putting Ms Zappone’s case at its highest.
The proposed Customer Services role was not the same as the Workshop Receptionist role formerly held Ms Zappone. While the Customer Service role was undoubtedly different, one significant common feature was that both roles were focused on administrative tasks. This weighs strongly in favour of a finding that the Customer Service role constituted ‘other acceptable employment’. Also weighing in favour of a such a finding is that the Applicant’s skills and experience with the Applicant positioned her well to perform the proposed role. Furthermore, Ms Zappone was offered an opportunity by Mr Arthur to further discuss the proposed role following the meeting of 10 March 2022. She did not avail herself of that opportunity and instead chose to file a s.372 general protections non-dismissal dispute on 16 March 2022. No response regarding the proposed Customer Service role was provided by Ms Zappone to the Applicant prior to the requested deadline of 18 March 2022.
Having regard to all of the above matters I am comfortably satisfied that the Customer Service role offered to Ms Zappone constituted ‘other acceptable employment’ for the purpose of s.120(1)(b)(i).
Section 120(2)
Having concluded that Ms Zappone was entitled to a redundancy payment (s.119(1)(a)) and that the Applicant obtained ‘acceptable alternate employment’ for Ms Zappone (s.120(1)(b)(i)), I must now consider whether it is appropriate to reduce the amount of redundancy pay that is payable to Ms Zappone. It is to that I now turn.
I accept that Mr Arthur’s desire to retain Ms Zappone as an employee was genuine. She had been a loyal employee for over 10 years with no record of performance or conduct issues. It was against this history and the backdrop of a tightening labour market that Mr Arthur proposed to increase Ms Zappone’s rate of pay from $30.00/hour to $32.00/hour in the new role. Notwithstanding the Applicant’s stated desire to retain Ms Zappone, it is inescapable to observe that the treatment of Ms Zappone by the Applicant in the lead up to her redundancy was at complete odds with that the expressed desire to retain Ms Zappone. This can be seen in the following.
Ms Zappone’s relationship with Mr Hotchin did not get off to a good start when he commenced as Workshop Manager in December 2021 and the relationship appeared to only go downhill from that point. So much is evident from the OH&S complaint raised by Mr Hotchin in respect of Ms Zappone’s attendance at site with her daughter on 28 January 2022. This complaint was quickly followed by Ms Zappone making a formal bullying complaint against Mr Hotchin. There can be little doubt as to how Mr Hotchin felt about the situation in that he required Ms Zappone to work from home indefinitely. This was in circumstances where COVID-19 pandemic restrictions had eased.
While I draw no conclusions as to where the fault lay between Ms Zappone and Mr Hotchin in terms of their working relationship, what can be said with certainty is that Ms Zappone primarily bore the consequences of their working relationship difficulties. She was prevented from returning to the workplace to perform her role as Workshop Receptionist. Worse still, on Ms Zappone’s evidence she was prevented from accessing the Applicant’s IT systems from on or about 2 February 2022, an explanation for which was not provided by the Applicant to Ms Zappone at the time or in these proceedings.
The above events were further compounded by the unfolding investigation by Mr Arthur into the workshop invoicing discrepancies. While Mr Arthur was unable to state when that investigation commenced, it was only on the 3 March 2022, at which point Ms Zappone was expecting to be able to return to the workplace, that she was advised by Mr Dodd that her return to site would be further delayed due to an investigation into matters that had arisen. There was no evidence that the subject matter of the investigation was disclosed to Ms Zappone at that point. Certainly, no formal allegations of misconduct were put to her. Nor was she interviewed by Mr Arthur as part of his investigation. This seems odd to say the least in the circumstances of Ms Zappone having been effectively stood down because of the investigation. It would not have been unreasonable in these circumstances for Ms Zappone to have drawn an inference that her conduct formed part of Mr Arthur’s investigation.
There was then no further communication with Ms Zappone until the meeting on 10 March 2021 at which point, she was advised that her role as Workshop Receptionist was redundant. She was also provided at the 10 March 2022 with some details of the invoicing discrepancy investigation but was assured by Mr Arthur that she was not accused of anything.
The above-described series of events reflects poorly on the Applicant, firstly in terms of the management of the obviously poor working relationship between Ms Zappone and Mr Hotchin, secondly in respect of the unexplained IT system access withdrawal and finally in respect of the investigation of the workshop invoicing discrepancies. Throughout the period of February and March 2022, Ms Zappone was prevented from returning to the workplace through a direction from Mr Hotchin and subsequently by her stand down (on pay) during Mr Arthur’s investigation. It is trite to observe that standing down an employee without proper explanation, allegation or interview while an investigation is underway is, by any normal workplace standard, unfair and unreasonable.
The Applicant’s treatment of Ms Zappone was in complete conflict with Mr Arthur’s statements of valuing Ms Zappone and wanting to retain her in the business. On one view, the Applicant’s conduct might be viewed as a thinly veiled and poorly executed attempt to rid itself of an employee who had fallen out with the Workshop Manager and was proving troublesome. The better view, to which I am, is that the process of managing the issues between Ms Zappone and Mr Hotchin and the invoicing discrepancies investigation was executed in an insensitive and ‘ham fisted’ manner at the expense of Ms Zappone. The offering of the alternate Customer Service role may well have been genuine, but it came against the backdrop of the prior poor treatment of Ms Zappone. Her disinterest in the alternate role and unwillingness to engage is entirely unsurprising.
The finding I have made regarding the ‘other acceptable employment’ obtained for Ms Zappone by the Applicant weighs strongly in favour of a significant reduction, if not to zero, in the redundancy payment she should receive. However, in the circumstances of this case I have also taken into account the poor treatment Ms Zappone received from the Applicant in the period immediately preceding the offer of the Customer Service role. One could hardly imagine a set of circumstances less likely to encourage Ms Zappone to engage over the alternate role offered. Having regard to all of these circumstances I consider that I should only reduce the redundancy payment amount by 50%. This equates to $5,760.00 and will therefore be the amount of redundancy pay to which Ms Zappone is entitled to under s.119 of the Act[16].
Conclusion
The amount of redundancy pay to which Ms Zappone is entitled is reduced to $5,760.00 and order to that effect will be issued with this decision.
DEPUTY PRESIDENT
Appearances:
P Zappone, Applicant.
VArthur for the Respondent.
Hearing details:
2022.
Melbourne (by Microsoft Teams):
July 19.
Printed by authority of the Commonwealth Government Printer
<PR743990>
[1] Exhibit R3, Workshop Receptionist Duties.
[2] Exhibit A4, Email from Pinar Zappone to Tom Hotchin titled ‘Working together moving forward’, dated 31 January 2022.
[3] Exhibit A9, Email dated 1 February 2022 from Pina Zappone regarding alleged bullying.
[4] Exhibit A10, Email dated 2 February 2022 from Pina Zappone to Anthony Dodd regarding missed calls.
[5] Exhibit A11, Email dated 4 February 2022 from Anthony Dodd to Pina Zappone. Exhibit R12, Email dated 14 February 2022 from Anthony Dodd to Pina Zappone.
[6] Exhibit A8, Email from Anthony Dodd to Pina Zappone titled ‘Re :Correspondence’, dated 2 March 2022.
[7] Exhibit R5, Audio recording of Zoom meeting of 10 March 2022.
[8] Exhibit A1, Email from Vincent Arthur to Pina Zappone, dated 10 March 2022
[9] Exhibit A2, Form 8C filed by Pina Zappone, dated 16 March 2022.
[10] Exhibit A3, Form 8A response filed by Applicant, dated 25 March 2022.
[11] Exhibit R4, Email exchange between Irene Lin and Anthony Dodd, dated 17 March 2022.
[12] Ibid.
[13] [2016] FWCFB 5467.
[14] [2016] FWC 4505.
[15] [2016] FWC 461.
[16] Section 120(3) of the Act.
Printed by authority of the Commonwealth Government Printer
<PR743990>
0
4
0