Laura Claudette Madeleine Dias v Fenway WA Pty Ltd
[2022] FWC 2402
•15 SEPTEMBER 2022
| [2022] FWC 2402 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Laura Claudette Madeleine Dias
v
Fenway WA Pty Ltd
(U2022/6070)
| COMMISSIONER WILLIAMS | PERTH, 15 SEPTEMBER 2022 |
Application for an unfair dismissal remedy
Ms Laura Dias (the applicant) has made an application under section 394 of the Fair Work Act 2009 for an unfair dismissal remedy. The respondent is Fenway (WA) Pty Ltd (the respondent).
In its response to the application, the respondent has advised that it objects to the application on the grounds that the dismissal was a case of genuine redundancy and that the employer is a small business employer and had complied with the Small Business Fair Dismissal Code.
The matter was listed for a staff conciliation conference, however on 20 June 2022 Mr Dunkel by email advised that having had the process explained to him by Commission staff he wanted to have the jurisdictional objections heard in the first instance.
Consequently, the Commission sent the parties a Notice of Listing advising a hearing would be held to determine the respondent’s objections on 2 September 2022 and that the parties were required to attend in person at the Commission on that date.
Directions were attached to the Notice of Listing specifying dates for the parties to file their witness statements, submissions and supporting documents. The directions state all witnesses must attend the hearing.
Mr Oliver Dunkel, a director of the respondent, however, did not comply with the direction to file the respondent’s materials. Consequently, on 14 July 2022, the Commission sent him a letter attaching the original Notice of Listing and directions and directing him to again file his materials. The last paragraph of the letter noted that if he failed to comply with this further direction, the matter may then be heard and decided in his absence.
On 15 July 2022, Mr Dunkel did then file materials on behalf the respondent.
In compliance with the directions, the applicant on 29 July 2022 filed her statement of evidence, submissions and supporting documents by email which was copied to Mr Dunkel.
The Commission’s directions provided the opportunity for the respondent to file further witness statements and submissions in reply on the merits of the application by 10 August 2022, however, nothing was filed by the respondent by this date or any time afterwards.
At the hearing of this matter, both parties were self-represented.
Evidence was given by Mr Dunkel and evidence was given by Ms Dias.
Evidence and factual findings
The applicant commenced employment with the respondent in January 2021.
The applicant’s dismissal took effect on 18 May 2022.
The applicant was employed as the manager of the Fenway Sports Bar in Subiaco on a full-time basis and her annual remuneration was $75,000 per year.
The parties agree that her employment was covered by the Hospitality Industry (General) Award 2020 (MA00009).
The applicant received notice of dismissal by email.
That email was dated 18 May 2022 from Mr Dunkel and the subject was “Termination of Employment”.
Relevantly, the email read as follows:
“I refer to our discussions last week, and further discussions today, and this email is to record the proceedings of our discussions.
In the past few months, I have not been well and was diagnosed with cancer. I have been busy with medical treatments and have also travelled overseas for business and other matters.
In my absence, I had entrusted you with the sole management of the business. You will appreciate that the business has also suffered significant losses partly due to covid, and partly due to mismanagement of the business. The inventory levels are also not managed very well, and the stock level has increased significantly, resulting in the need for me to invest money as working capital last month.
In particular, the business has also suffered due to you and Ethan going together for your dad's funeral to Paris, leaving the entire business to relatively junior staff to manage the business. Further the leave of over 5 weeks for this purpose is greater than reasonable time required for the purpose. As a result there have been experienced staffing shortages. I noticed that you and Ethan have been travelling to various places and your Facebook postings have highlighted that you and Ethan are on a vacation rather than on a compassionate family trip.
You were only entitled to two days of compassionate! eave, and yet you instructed that personal leave be fully utilised first, and then to take the remaining leave from annual leave. You further also asked that the same be done for Ethan. This is against business and company policy, and also not an entitlement, and has caused great loss to the business. This has been reversed through payroll to reflect the correct position. However, this has raised questions about your integrity and honesty in running the business profitably, and for the best interest of the company.
Your position in the business has therefore become untenable, and I cannot have any confidence that you are capable of running our business profitably. It has therefore now become necessary for me to take on the business management responsibility.
In view of this situation, your employment is terminated with immediate effect. We will pay you two weeks of notice pay, as is required by industry award, and also pay your remaining entitlements as of today”
The evidence is that on 20 April 2022, the applicant was advised her father had passed away in France. She advised her employer, Mr Dunkel, of this and that she would have to organise flights in the next few days. Mr Dunkel replied that she had to do what she needed to do and had his support and to not worry about the pub and that he will close it if he has to.[1]
The applicant’s evidence was the same day she informed the assistant venue manager and the other manager she was going to France for five weeks. She told them her return date as they would be taking over the business in her absence.
In her Form F2, the applicant states in answer to question 3.2 Why was the dismissal unfair? as follows:
“At this time, I regrettably did not mention my exact date of return to Mr Dunkel. 5th of May, I received a message from the Mr Dunkel, stating he was not happy I went for a month and that I “didn’t feel the need to tell” him.” [sic]
She says during these five weeks she organised and attended her father’s funeral, organised his papers, his house and his belongings and spent time with her family and friends.
She finished work on 22 April 2022 and was rostered to come back on 28 May 2022.
Another employee of the respondent, Mr Ethan Malone, accompanied the applicant on her trip and also took leave for this period.
She says she believes she was entitled to compassionate leave and personal leave. She asked the respondent to use compassionate leave and personal leave before using annual leave for the rest of the time.
The applicant, however, supplied a letter from a doctor dated 27 July 2022 that says he reviewed her on her return to Australia in June and she had symptoms of anxiety and depressed mood.
There is no evidence that during her period of leave the applicant was unwell such that personal leave under the Award was payable.
The evidence is that whilst on leave in France, she continued to do some work for the respondent.
In the week beginning 2 May 2022, the applicant completed five hours of work involving rostering, approving timesheets, ordering, contacting representatives and customers.[2]
She was later advised by the accountant, Mr Patel, that Mr Dunkel found her request for leave unjust to the business. Personal leave that had been paid was subsequently reversed.[3]
Mr Dunkel then told her, on 6 May 2022, that he would take care of everything whilst she was on leave.
On 17 May 2022, Mr Dunkel sent a message to the applicant that he would advise staff not to interfere with her and Mr Malone’s annual holiday and he would take care of the rest. He said he would talk to her when she returns whenever that is. He says he did not get a date. The message says that:
“As for your entitlements please take legal advise. As for the pub, I guess that’s……. So sad” [sic][4]
The applicant responded that she was happy to help if there is anything she could do while she was away. She would be back at work on 28 May and that date had been communicated to the key staff. She said she would be more than happy to chat with him then and clear the air. She said she did not leave by choice.
The same day, Mr Dunkel replied as follows :
“I would like to talk to you on the phone regarding your employment at Fenway if possible. Please advise the time of your liking and I will contact you via phone or messenger depending on your preference. Regards Oliver”
The same day, 17 May 2022, Mr Dunkel rang her to let her know her position would not be available when she got back to Australia because she was too involved in her personal life. Her evidence was that she told him he could not fire her over the phone to which he replied he would email her.
She did not receive any email from him after this on her personal email.
When she returned to work on 28 May 2022, the day she was rostered to return, she discovered access to her work email had been removed. She went to the venue to open her email and then saw her letter of termination.
Right after printing out her termination letter at Fenway, she saw Mr Dunkel and asked for an explanation regarding her dismissal to which he answered that she should seek legal advice.
Mr Dunkel’s evidence regarding the applicant’s five-week period of absence was that at that time he was undergoing medical treatment and was away from Perth.
His evidence was that the applicant did not act properly when she took another employee, Mr Malone, along with her to France. His evidence was this was not necessary and Mr Malone did not have to go with her and as a result, there were staff shortages resulting in the business being left to junior staff to manage while the applicant was away.
His evidence was that the business relies on trained staff as it runs a TAB service and is bound by liquor licensing regulations. It was irresponsible for the applicant to do as she had done.
His evidence was that later on her social media it was apparent that the applicant and Mr Malone had been travelling and having a fun holiday long after the funeral was over.
His evidence was that the period of leave for herself and Mr Malone was unreasonably long and irresponsible for the business.
Mr Dunkel’s evidence was that the applicant instructed the accountant to first use up all her sick leave and when that was exhausted, to take days out of her annual leave accrual.[5] His evidence was that the applicant knew she was on annual leave but wanted to get paid out of her sick leave, which is unethical and clearly an attempt to defraud the business. His evidence was the applicant also requested similar sick leave for Mr Malone.
Having since been reversed by the accountant on the instruction of Mr Dunkel, the applicant was paid two days of compassionate leave which was what she was entitled to.
Mr Dunkel’s evidence was that he expected the applicant to take care of the business whilst he was away on medical grounds, but on the contrary, the applicant did the opposite thereby creating reasonable grounds for dismissal due to her underperformance.
Mr Dunkel’s evidence was that the income statements for the business for the period July 2021 to June 2022 show that since February 2022, monthly turnover dropped by $60,000 per month and the net operating result had seen a loss of nearly $39,000 for the months of February 2022 to June 2022.
His evidence also was that it is evident that wages have gone up significantly in February 2022 to June 2022 resulting in the net losses. His evidence was that as a result, staff hours need to be reduced and some staff needed to be made redundant.
His evidence was that the applicant’s position of general manager has not been replaced with a new employee. His evidence was that the same number of staff are still employed in the business.
His evidence was the respondent has fewer than 15 employees. His evidence was that total staff numbers are at most 13 to 14. The employee numbers he says are from payroll reports from 22 February 2022, 1 March 2022 and 5 July 2022.
Mr Dunkel gave no evidence regarding employee numbers for the date on which the applicant’s employment was terminated, which was 18 May 2022.
The applicant in her evidence disputed the criticisms of Mr Dunkel regarding the financial performance of the business. She pointed out that February to June are often described in the hospitality businesses as the quiet months.
Her evidence was that in March 2022, she had advised Mr Dunkel that Fenway was not eligible for government pandemic support because the turnover of the business had significantly increased in comparison to the previous year.
Separately, she also disputes the financial basis for Mr Dunkel’s complaints.
With respect to her position being made redundant, she says that he did not consult with her about her position being redundant nor did he offer or consider the option of another job for her in the business as an alternative. Her evidence was that Mr Dunkel never mentioned to her anything to do with the business being in a tough position financially.
The evidence also is that after she was dismissed, another employee was approached by Mr Dunkel to take over the tasks and responsibilities of her position, however, this employee declined the offer from Mr Dunkel.
As to the number of employees the respondent had on 18 May 2022 when she was dismissed, the applicant’s evidence supported by the rostering records provided[6] was that there were at least 16 employees and, in addition, two other employees, namely Fenway’s accountant Mr Fred Patel and Fenway’s graphic designer Mr Kim Kay, each of whom received a weekly wage.
Finally, the Commission notes that in the applicant’s evidence, she says that she has not been paid for some hours she worked nor for public holidays nor for time in lieu.
With respect to these alleged underpayments, the parties are advised that the Commission in determining this application has no jurisdiction to deal with alleged underpayments. The Commission is empowered only to determine whether the applicant’s dismissal was unfair.
These alleged underpayments, however, may be matters the applicant is able to separately pursue in another court of competent jurisdiction.
The legislation
Sections of the Act relevant to this application are set out below:
“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a) 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); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) 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
(g) 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; and
(h) any other matters that the FWC considers relevant.”
“388 The Small Business Fair Dismissal Code
(1) The Minister may, by legislative instrument, declare a Small Business Fair Dismissal Code.
(2) A person’s dismissal was consistent with the Small Business Fair Dismissal Code if:
(a) immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person’s employer was a small business employer; and
(b) the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal.”
“389 Meaning of genuine redundancy
(1) A person’s dismissal was a case of genuine redundancy if:
(a) the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and
(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.
(2) A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:
(a) the employer’s enterprise; or
(b) the enterprise of an associated entity of the employer.”
“390 When the FWC may order remedy for unfair dismissal
(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:
(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) The FWC may make the order only if the person has made an application under section 394.
(3) The FWC must not order the payment of compensation to the person unless:
(a) the FWC is satisfied that reinstatement of the person is inappropriate; and
(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.
Note: Division 5 deals with procedural matters such as applications for remedies.”
“392 Remedy—compensation
Compensation
(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.
Criteria for deciding amounts
(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:
(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that the FWC considers relevant.
Misconduct reduces amount
(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.
Shock, distress etc. disregarded
(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.
Compensation cap
(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:
(a) the amount worked out under subsection (6); and
(b) half the amount of the high income threshold immediately before the dismissal.
(6) The amount is the total of the following amounts:
(a) the total amount of remuneration:
(i) received by the person; or
(ii) to which the person was entitled;
(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and
(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.”
Consideration
Section 385 prescribes that a person has been unfairly dismissed only if amongst other things, the Commission is satisfied that the dismissal was not consistent with the Small Business Fair Dismissal Code (the Code) and the dismissal was not a case of genuine redundancy.
Compliance with the Small Business Fair Dismissal Code?
In this case, the respondent submits that the dismissal was consistent with the Code.
The onus is on the respondent to satisfy the Commission that this is the case.
Section 23 prescribes that an employer is a small business employer at a particular time if it employs fewer than 15 employees at that time.
The relevant time in this matter is prescribed by section 388 as being immediately before the time of the dismissal or at the time the person was given notice of the dismissal, whichever happened first.
Consequently, in this case, the relevant time is 18 May 2022.
Whilst I note Mr Dunkel’s evidence was that at most the respondent had 14 employees, the documentary material he relies upon does not include 18 May 2022 or even dates close to that.
In contrast, the applicant’s evidence was that on 18 May 2022 and on a number of days either side of that, the respondent had at least 15 employees. The documentary material she has tendered, and which is not challenged, supports her evidence.
Consequently, I am not satisfied that the respondent at the relevant time, 18 May 2022, was a small business.
Consequently, the respondent is not able to rely on its supposed compliance with the Small Business Fair Dismissal Code.
For completeness, if I am wrong in that and at the relevant time the respondent was a small business employer, the onus is on the respondent to satisfy the Commission that the dismissal was consistent with the Code.
Considering the Code with respect to summary dismissal, there were in this case no reasonable grounds for the respondent to believe that the employee’s conduct was sufficiently serious to justify instant dismissal.
There is nothing in the respondent’s complaints about the applicant, even taken at their highest, that amount to a reasonable ground to believe that her conduct was sufficiently serious to justify immediate dismissal. Complaints about underperformance do not warrant immediate dismissal.
Separately. the criticism of the applicant that she wrongly claimed personal leave when attending her father’s funeral overseas does not justify immediate dismissal. Whilst the applicant’s request for this leave was incorrect, there is no basis to interpret the applicant’s entirely transparent but mistaken request to be an act of fraud.
Returning to the other circumstances for dismissal under the Code, the Code requires the small business employer give an employee a reason why he or she is at risk of being dismissed, which must be a valid reason, and the employee must be warned verbally or preferably in writing that he or she risks being dismissed if there is no improvement.
There is no evidence that these provisions of the Code were complied with by the respondent.
The respondent has not completed the Code checklist to demonstrate that the Code has been followed nor given evidence to that effect.
Consequently, even if the Commission had been satisfied that the respondent was a small business employer, the Commission is not at all satisfied that the respondent in this case complied with the Small Business Fair Dismissal Code in relation to the applicant’s dismissal.
Was the dismissal a case of genuine redundancy?
Mr Dunkel’s evidence was that the applicant’s position had been made redundant and has not been replaced with a new employee.
Relevantly, the unchallenged evidence of the applicant is that there was never any discussion at any time with her that her position as manager was no longer required to be performed by anyone because of changes in the operational requirements of the enterprise.
Entirely consistent with this is the Termination of Employment email dated 18 May 2022 from Mr Dunkel to the applicant which makes no reference to changes in the operational requirements of the enterprise.
The email also does not refer to the applicant’s position no longer being required to be performed by anyone.
Indeed, the email says this:
“Your position in the business has therefore become untenable, and I cannot have any confidence that you are capable of running our business profitably. It is therefore now become necessary for me to take on the business management responsibility.
In view of this situation, your employment is terminated with immediate effect.”
Mr Dunkel, in short, says he will be taking over the applicant’s responsibilities because he is dissatisfied with her.
Consequently, I reject Mr Dunkel’s evidence that the applicant’s position was made redundant.
The Commission is not satisfied that there was a change in the operational requirements of Fenway which resulted in the applicant’s position no longer being required to be performed by anyone.
The respondent has not discharged the onus of satisfying the Commission that the applicant’s dismissal was a case of genuine redundancy within the meaning of 389(1)(a).
Even if I am wrong in this, the respondent was required by section 389(1)(b) to comply with any obligation in the Award to consult about the redundancy. The relevant obligation to consult with the applicant about her likely termination is found in the Award at clause 38 below:
“38. Consultation about major workplace change
38.1 If an employer makes a definite decision to make major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer must:
(a) give notice of the changes to all employees who may be affected by them and their representatives (if any); and
(b) discuss with affected employees and their representatives (if any):
(i)the introduction of the changes; and
(ii) their likely effect on employees; and
(iii) measures to avoid or reduce the adverse effects of the changes on employees; and
(c) commence discussions as soon as practicable after a definite decision has been made.
38.2 For the purposes of the discussion under clause 38.1(b), the employer must give in writing to the affected employees and their representatives (if any) all relevant information about the changes including:
(a)their nature; and
(b) their expected effect on employees; and
(c) any other matters likely to affect employees.
38.3 Clause 38.2 does not require an employer to disclose any confidential information if its disclosure would be contrary to the employer’s interests.
38.4 The employer must promptly consider any matters raised by the employees or their representatives about the changes in the course of the discussion under clause 38.1(b).
38.5 In clause 38 significant effects, on employees, includes any of the following:
(a) termination of employment; or
(b) major changes in the composition, operation or size of the employer’s workforce or in the skills required; or
(c) loss of, or reduction in, job or promotion opportunities; or
(d) loss of, or reduction in, job tenure; or
(e) alteration of hours of work; or
(f) the need for employees to be retrained or transferred to other work or locations; or
(g) job restructuring.
38.6 Where this award makes provision for alteration of any of the matters defined at clause 38.5, such alteration is taken not to have significant effect.”
The evidence is there was no such consultation with the applicant about her termination on the grounds of redundancy before it occurred. Consequently, the respondent has not met the requirements of 389(1)(b).
For these reasons, the Commission is not satisfied that the applicant’s dismissal was a case of genuine redundancy.
In summary, the Commission rejects both of the objections the respondent has raised to this application.
Consequently, the application can be considered on its merits.
Section 387 of the Act, set out above, prescribes criteria the Commission must take into account when considering whether or not it is satisfied that the applicant’s dismissal was harsh, unjust or unreasonable.
Valid reason
It will be rare that an employer dismisses an employee without the employer believing there was a reason for the dismissal.
The legislation though requires that the Commission consider whether the reason was a “valid reason”.
The Commission has on many occasions considered what “valid reason” means. Previous decisions have held that a reason for dismissal must be ‘sound, defensible or well founded.’ But a reason which is ‘capricious, fanciful, spiteful or prejudiced’ cannot be a valid reason.
The Commission has held that it will not be enough for an employer to say that they acted in the belief that the termination was for a valid reason.
In this case the evidence regarding the financial performance of the business is general in nature. The letter of termination also acknowledges that Covid 19 contributed to the losses.
The evidence of the respondent lacks particularity as to what extent the applicant was herself responsible for what Mr Dunkel says were losses in profitability.
The complaints Mr Dunkel has about the applicant’s management of the business self-evidently were not sufficiently of concern that these were ever raised by him prior to her dismissal.
Consequently, I am not satisfied that her management of the business amounts to a valid reason for her dismissal.
Separately, in the termination of employment email, Mr Dunkel complains that the business suffered due to both the applicant and Mr Malone going to Paris for her father’s funeral.
Clearly, the applicant was granted leave by Mr Dunkel and initially he was quite supportive of her situation, until it seems he became aware her leave was going to be as long as it was and that Mr Malone was also on leave. It is not clear on the evidence what control or, possibly lack thereof, the applicant had over Mr Malone also taking leave to accompany her.
Mr Dunkel’s evidence again is not particular as to how the absence of these two staff in fact negatively impacted the business other than a general statement that it meant they were short staffed. I note that there is some contradiction with this concern versus his other concern that the wages bill had been increasing.
The other reason cited in the termination of employment email for the dismissal was the applicant having requested that her absence and Mr Malone’s be covered by personal leave.
Mr Dunkel is correct in pointing out that, on the evidence before the Commission, there was no basis for either the applicant or Mr Malone to be paid from their personal leave for any part of the period they were absent. The applicant was entitled to compassionate leave and was paid this.
However, there is no evidence that the applicant’s actions were a deliberate attempt by the applicant to misuse personal leave.
Mr Dunkel never put it to the applicant that her request to use personal leave was fraudulent.
Her evidence which is unchallenged was that when she went to France for the particular and personal reason of arranging and attending her father’s funeral and related matters, she believes she was entitled to compassionate leave and personal leave. So, she asked for this form of leave and asked to use those before using up her annual leave for the rest of the time. In the absence of evidence to the contrary, I accept her explanation.
Whilst a request to use personal leave by the applicant involved a misunderstanding as to what personal leave covers, there is no evidence to support Mr Dunkel’s view that this was a fraudulent act or in some way raises questions about her integrity or honesty.
Mr Dunkel was also wrong in the letter to say this had caused great loss to the business. The evidence is that prior to the applicant’s dismissal, the respondent’s accountant, quite properly at Mr Dunkel’s direction, had reversed the previous leave transactions. The leave for both the applicant and Mr Malone was not funded by their accrued personal leave and, consequently, there was no loss to the business.
Consequently, my decision is that the instruction from the applicant for personal leave to be used to cover part of her and Mr Malone’s absence was not a valid reason for her dismissal.
In conclusion, I am not satisfied that there were valid reasons for the applicant’s dismissal.
Notification of the reason
The evidence is that the applicant was not notified of the reasons she was to be dismissed before the respondent made the decision to dismiss her. She was notified of the reasons after the decision took effect in the email from Mr Dunkel dated 18 May 2022.
Opportunity to respond
The applicant was not given an opportunity to respond to the reasons she was to be dismissed for before the dismissal took effect.
Refusal to have a support person present
There was no refusal to have a support person present at any discussions relating to the dismissal and in fact there were no such discussions in any event.
Warnings about unsatisfactory performance before dismissal?
The evidence is there were no warnings either verbal or written about the applicant’s supposed unsatisfactory performance before she was dismissed.
Size of the enterprise and absence of dedicated human resource management specialists or expertise
The employer’s enterprise is small. The employer does not have any dedicated human resource management specialists or in-house expertise.
I have no doubt that these two factors did unfortunately significantly contribute to the deficiencies of the procedures followed in affecting the dismissal in this case.
The Commission’s view is that had a procedure been followed where Mr Dunkel documented his complaints and concerns about the applicant and provided these to her after she had returned to work, and if he had given her an opportunity to consider those issues and later met with her and discussed them, possibly there could have been a different outcome.
Other matters
Whilst the applicant had worked at the venue for a longer period, her employment with the respondent had only been for approximately 17 months.
Conclusion
Notwithstanding my decision that there was not a valid reason for dismissal, I do accept that Mr Dunkel had reason to be dissatisfied with the applicant.
What occurred was that he was initially unaware how long she was to be absent. He also initially did not know that Mr Malone was going to be absent and travelling with her. His laudable support for her absence in the first instance, to deal with her father’s funeral, was later eroded by the applicant apparently relaxing and enjoying the latter part of her holiday in circumstances where Mr Dunkel believed the absence of two staff was detrimental to his business. Finally, Mr Dunkel’s view of the situation was soured further by his belief that the applicant’s request to use personal leave was done knowingly to her advantage and to the business’s disadvantage.
The applicant in a number of ways contributed to Mr Dunkel’s deteriorating view of the situation. Not telling Mr Dunkel she intended to be away for five weeks nor that Mr Malone was accompanying her were both either unhelpful oversights or ill-considered choices. At the time the applicant departed Perth, she was in all likelihood upset at her father’s death and so these oversights or choices may be excused for that reason. However, after she had finalised her deceased father’s arrangements, being the manager of the venue, she perhaps should at least have checked in with Mr Dunkel to ensure he was accepting of her continuing her leave for the full weeks remaining.
Unfortunately, the concerns Mr Dunkel had with what had transpired were not openly discussed with the applicant before she was dismissed. Consequently, there was no opportunity for Mr Dunkel to explain his perspective nor for her to explain her actions or clarify what had occurred.
Whether this would have changed the outcome is unknown but certainly this opportunity was lost.
Ultimately, in terms of the matters the Commission is required to take into account, my decision is that the dismissal of the applicant in this case was harsh and unreasonable. The applicant was unfairly dismissed.
Remedy
Considering the circumstances in this case, my decision is that it is inappropriate to reinstate the applicant.
I am, however, satisfied that it is appropriate that an order of compensation be made by the Commission in all the circumstances.
I will now consider the criteria prescribed in s.392 which the Commission must take into account when deciding the amount of compensation.
There is no evidence that an order of compensation would affect the viability of respondent.
The length of the applicant’s service with the respondent was approximately 17 months.
If the applicant was not dismissed when she was, inevitably Mr Dunkel would have pursued with the applicant all the issues he set out in his evidence that he was concerned about, including the financial performance of the business, the applicant’s management plus the complaints he had about the circumstances of her period of leave. My conclusion is that whilst the applicant may have been able to disabuse him about some of these complaints, ultimately, the applicant’s employment future was limited. Either Mr Dunkel would have dismissed her or she would have sought out alternative employment sensing the relationship was no longer viable.
My conclusion is that one way or the other, the applicant would have only remained in employment for at most a further eight weeks if she had not been dismissed when she was.
The applicant’s remuneration was $75,000 per annum. Consequently, the remuneration the applicant would have received if she had not been unfairly dismissed when she was is the amount of $11,538.48 gross. The two weeks pay in lieu of notice, received on dismissal is deducted, leaving $8,653.86.
After her dismissal, the applicant did obtain alternative employment and I am satisfied she has acted properly to mitigate her economic loss.
The remuneration the applicant has earned from other employment in the eight weeks after her dismissal is $856.85 gross. Deducting this, the balance of compensation is then $7,797.01.
The dismissal in this case does not involve any misconduct by the applicant.
Accordingly, considering the above criteria in s.392(2), the amount of compensation to be ordered is $7,797.01.
The Commission will issue an order that the respondent pay to the applicant the amount of $7,797.01 gross from which tax will be deducted within 21 days of the date of the order.
An order to that effect will now be issued.
[1] Exhibit A1 attachment AA.1, L1.
[2] Exhibit A1 attachment I1 and K1 – K24.
[3] Exhibit A1 attachment Q1.
[4] Exhibit A1 attachment 01 and W1.
[5] Exhibit R1 annexure D.
[6] Exhibit A1 attachment M1 – M12.
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