Linda Gasper v Faxton Developments Pty Ltd T/A Kings Transport
[2010] FWA 4035
•27 MAY 2010
[2010] FWA 4035 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Linda Gasper
v
Faxton Developments Pty Ltd T/A Kings Transport
(U2010/5217)
COMMISSIONER RYAN | MELBOURNE, 27 MAY 2010 |
Application for unfair dismissal remedy.
[1] The Applicant, Linda Gasper, applied to Fair Work Australia for a remedy in relation to her alleged unfair dismissal from her employment with the Respondent, Faxton Developments Pty Ltd trading as Kings Transport.
[2] The Applicant acknowledges that she resigned her employment on 4 January 2010 by giving 2 weeks’ notice of termination to the Respondent. However the Applicant contends that the resignation was dismissal within the meaning of s.386(1)(b) of the Fair Work Act (the Act).
[3] The Respondent raised a jurisdictional challenge to the application on the basis that the resignation of employment by the Applicant was not a dismissal within the meaning of s.386(1)(b) of the Act.
Jurisdictional Issues
[4] The jurisdiction of Fair Work Australia to deal with applications for remedies in relation to alleged harsh, unjust or unreasonable termination of employment is found in Part 3-2 of the Act. Two of the prerequisites for jurisdiction are that the termination involves a national system employee and employer and that the employee has completed at least the minimum period of employment.
[5] The Respondent did not raise any challenge to the application on the basis that the Applicant was not a national system employee or that the Applicant had not completed at least the minimum employment period.
[6] No submissions were made be either the Applicant or the Respondent on these two issues.
[7] The Tribunal proceeded on the basis that, in the absence of a jurisdictional challenge on either of these matters, the Applicant was a national system employee and had completed at least the minimum period of employment.
[8] Directions were issued to the parties on the 7th April with the Applicant to file submissions by 16th April and the Respondent to file submissions by the 27th April. The Applicant did not file submissions in the normal understanding of that term but did on the 19th April file with Fair Work Australia 4 documents which supported her application. The Respondent did not file any submissions by the due date.
[9] The matter was listed for hearing on 7 May 2010.
[10] At the hearing the Applicant who represented herself gave evidence in support of her application. The Respondent was represented by Ms Kellie Thomson, National HR Manager who gave evidence on behalf of the Respondent. The evidence of both the Applicant and the Respondent, including cross examination, was relatively brief.
[11] Although the Applicant was asked if she wanted to make any oral submissions in support of her application the Applicant declined the opportunity to make further oral submissions and was content to rely upon the written material filed in the matter and her sworn evidence on the day. The Respondent made very brief additional oral submissions on the day of the hearing and was also content to rely upon the written material filed in the matter.
[12] The transcript of proceedings show that the hearing commenced at 11.04 am and concluded at 11.45am and included a break to enable photocopying of a document being relied upon by the Respondent.
The Applicant’s Case
[13] The Applicant commenced employment with Blue Circle in August 2008 and was working at the Altona site of the employer. On or about 5th October 2009 Blue Circle was taken over by the Respondent, who traded as Kings Transport, and the Applicant was transferred to the Kings Transport site at Notting Hill.
[14] The Applicant alleged that her treatment by her manager, Mr Gabe Williams, at Kings Transport at Notting Hill caused her distress and anxiety. The Applicant alleged that the conduct of Mr Williams included bullying and harassment of the Applicant, being constantly rude towards the Applicant, making unreasonable criticisms of the Applicant’s work, requiring the Applicant to work excessively and excessive supervision of the Applicant.
[15] The Applicant did not give direct evidence in relation to these allegations. However the allegations were contained in two separate documents to which I have attached significant weight. The first document was a statement made to a private investigator on the 19th November 2009 who was investigating the WorkCover claim made by the Applicant. Whilst an original of the statement was not provided the copy provided as part of the Applicant’s filed material indicated that the original was a sworn statement. The second document was a report prepared for the Accident Compensation and Conciliation Service by the Applicant’s treating Psychologist on 1st February 2010 which provided an account of sessions conducted with the Applicant since 2nd November 2009 and the formal diagnosis prepared by the psychologist.
[16] The findings of the psychologist are that “Ms Gasper had experienced a number of psychological difficulties as a result of the incidents that occurred in the course of her employment at Kings Transport” and that “In my opinion the symptoms Ms Gasper is currently experiencing are a direct result of the incidents that occurred in the course of her employment at Kings Transport and are not merely an exacerbation of a pre-existing disorder.” The disorders were described as being an “Adjustment Disorder with Mixed Anxiety and Depressed Mood”.
[17] The Applicant’s primary contention was that she resigned her employment after being told by Ms Thomson on the 22nd December 2009 that it would be in the best interests of the Applicant if she moved on. At about the same time the Applicant was offered a separation payment if she wanted to leave.
[18] The Applicant had alleged in her filed material that Mr Gabe Williams had made statements to her which indicated that he did not believe she fitted into the workplace and that she should give notice and look for work elsewhere. This last statement allegedly occurring on 28th October 2009 being the last day the Applicant worked for the Respondent before commencing a period of leave occasioned by the workplace incidents.
[19] The Applicant’s specific evidence was that whilst she was off work suffering from a work related psychological disorder that Ms Thomson arranged to meet her at a café at Brandon Park Shopping Centre on 22nd December 2009 and it was that meeting that Ms Thomson made the comment that it was in the best interests of the Applicant to move on and that there was no other work for the Applicant in other sites of the Respondent. After that meeting Ms Thomson contacted the Applicant to offer her a payment as an agreed separation payment. After the Christmas/New Year period the Applicant then resigned her employment.
The Respondent’s Case
[20] Material filed by the Respondent included an unsworn statement prepared by Mr Gabe Williams and unsworn statement prepared by Ms Jemma Neaves.
[21] The Respondent alleged through the statement of Mr Williams that the Applicant’s moods were generally pretty poor and that she had a tendency to complain about her workload. Mr William’s statement also alleged that the Applicant gave very little guidance to a new staff member and that she seemed to be put out with having someone else in her work area.
[22] The statement of Ms Jemma Neaves is to be given little or no weight as it has the appearance of being nothing more than sycophantic support for Mr Williams.
[23] Ms Thomson gave evidence that she met with the Applicant on the 22nd December 2009 to discuss options about the future employment of the Applicant. Ms Thomson gave evidence that once she realised that the discussion about a return to work was not resolving the matter that she then asked the Applicant what the Applicant wanted. According to Ms Thomson the Applicant asked for 2 months’ pay. Whilst it wasn’t said so by Ms Thomson it was clearly implied that the request for 2 months’ pay was by way of a voluntary separation payment. Ms Thomson also gave evidence that later on the same day she spoke to senior management of the Respondent and suggested to them that it was sensible to consider a separation package for the Applicant.
[24] As Ms Thomson said in her oral evidence:
“I went back to the company, discussed it with them, they didn’t believe there was any offer needed and they were quite disappointed that it had had that discussion because they were quite firm in their stance with how the matter had been conducted to date and quite supportive of Gabe and Carly, my predecessor, of how this matter had been managed to date. However, after further discussions I explained in my experience sometimes it is better to I guess agree to disagree and to part ways on the best terms we could and I managed to get four weeks settlement with no liability. I discussed that with Linda over the phone which she rejected.”
[25] Ms Thomson also gave evidence that on the 17th December she had a conversation with the Applicant’s GP who, according to Ms Thomson, “didn’t want to approve another WorkCover certificate for Linda because he felt that this could be resolved between Linda and the company and I talked to him about …..how I was going to do it, go about that, such as mediation and so forth and suggestions of that which he was very pleased that I was suggesting that and taking that matter into my hands as he felt that was a great resolution for Linda.”
[26] Ms Thomson did not give any indication in her oral evidence as to whether or not she advised the Applicant during the meeting on the 22nd December 2009 of the contents of Ms Thomson discussion with the Applicant’s treating GP. However I draw the conclusion from the evidence of both the Applicant and Ms Thomson that Ms Thomson did not raise with the Applicant the contents of that discussion. Ms Thomson did give evidence that she did not inform senior management of her discussion with the Applicant’s GP when Ms Thomson was discussing with them a separation payment for the Applicant.
[27] Under cross examination Ms Thomson specifically denied telling the Applicant at the meeting on the 22nd December that it would be in the Applicant’s best interests if she moved on. In the notes prepared by Ms Thomson for the hearing on 7th May 2010, and which were made available to Fair Work Australia and the Applicant, Ms Thomson identified at paragraph 16 in relation to events on 22nd December 2009 that “I knew it would be in Linda’s best interest to move on.”
Consideration of the Issues
Resignation or Dismissal
[28] It is important in my view that in the period of employment from August 2008 until 11th October 2009 there is nothing to suggest that the Applicant was subject to any work related stress or anxiety. However in the period from 12th October until 28th October 2009, whilst under management from Mr Gabe Williams, the Applicant “experienced a number of psychological difficulties as a result of the incidents that occurred in the course of her employment at Kings Transport.”
[29] The psychological difficulties experienced by the Applicant in the course of her employment under Mr Gabe Williams are clearly directly related to the termination of employment of the Applicant.
[30] I place no reliance on oral evidence of either the Applicant or Ms Thomson in relation to whether or not it was said at the meeting between the two on 22 December 2009 that it was in the best interests of the Applicant to move on. The words said are less important than the actions which occurred on the same day with Ms Thomson asking the Applicant what she wanted, with the Applicant asking for two months’ pay, with Ms Thomson discussing with her senior management a separation payment for the Applicant and with Ms Thomson putting a specific figure of a separation payment to the Applicant.
[31] It is these actions which clearly identify that the employer had by the 22nd December 2009 reached a position where it was looking for a separation from the Applicant.
[32] As the evidence of Ms Thomson makes clear, at the meeting on the 22nd December 2009 the Applicant “clearly looked upset or unsettled, distressed or stressed. She was not in I guess a normal, fit state.” Yet it was still considered appropriate by Ms Thomson to raise with the Applicant the issue of a separation and to raise with her senior management the same issue.
[33] I do not in any way attribute any malice or improper intentions to Ms Thomson. Rather it appears from the evidence of Ms Thomson, which I fully accept, that she was looking to the Applicant and the Respondent parting “ways on the best terms we could”.
[34] It is proper for Fair Work Australia to consider each separate action of the Respondent towards and in relation to the Applicant as being part of a single comprehensive relationship. When viewed holistically the Respondent’s actions up to and including the making of an offer of voluntary separation payment constituted or created an environment in which “the conditions of work were so oppressive or repugnant to the employee (and the employment relationship), and/or else, so bore down on the volition of the employee, that resignation was a reasonable probable response to the circumstances the employee faced at the time.” 1 Rather than wait for termination by the Respondent the Applicant resigned in the belief that termination of employment was inevitable. For a person who is at the end of the gangplank, a choice between jumping or being pushed leads to the same outcome! The Applicant was in a similar position.
[35] The Applicant was unable to return to work under the management of Mr Gabe Williams due to the psychological difficulties experienced by the Applicant in the course of her employment under Mr Gabe Williams.
[36] The Applicant had been unable to resolve with the Respondent alternative employment with the Respondent which would have removed the Applicant from being managed by Mr Gabe Williams.
[37] The Applicant had, at the invitation of the Respondent, identified her preferred separation payment and had then been offered half of that amount as a separation payment.
[38] It was reasonable for the Applicant to form the view that a return to work was effectively no longer an option and that termination of employment was inevitable.
[39] That the Applicant resigned should not have been a surprise to the Respondent.
[40] The very conduct of the Respondent led inevitably to either the Applicant resigning or being terminated. It was in my view a classic “jump or be pushed” scenario.
[41] I find that the resignation of employment by the Applicant is a dismissal within the meaning of s.386(1)(b) of the Act.
Harsh, Unjust or Unreasonable Dismissal
[42] In order to consider whether the dismissal of the Applicant was harsh unjust or unreasonable I am required to take into account each of the elements identified in Section 387 of the Act:
“(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”
[43] In the context of the application the only issues relating to the Applicant’s capacity or conduct and which could constitute reasons for termination were contained in the unsworn statement of Mr Gabe Williams. From the material before Fair Work Australia it appears that those matters were not put to the Applicant nor was the Applicant given an opportunity to respond to those matters.
[44] I must also take into account s.387(d):
“(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”
[45] Whilst the key meeting between Ms Thomson and the Applicant occurred without the Applicant having a support person assist her there is nothing in the material before Fair Work Australia which would enable a conclusion to be drawn that the Respondent unreasonably refused to allow the Applicant to have a support person with her at all relevant times.
[46] I must also take into account s.387(e):
“(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal;”
[47] No unsatisfactory performance has been alleged against the Applicant and this matter is not a relevant factor in the present application.
[48] I must also take into account ss.387(f) and 387(g):
“(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”
[49] The Respondent is a significant employer and has dedicated Human Resources Staff who operate at the national level of the Respondent’s business.
[50] Finally, I can consider:
“(h) any other matters that Fair Work Australia considers relevant.”
[51] This is a very broad matter and permits Fair Work Australia to consider all of the circumstances surrounding the employment of the Applicant in the period of 11th October to 28th October, including the management of the Applicant by Mr Gabe Williams.
[52] Each of the factors which in my view led to the dismissal of the Applicant also ensured that the dismissal was harsh, unjust or unreasonable.
Remedies
[53] Having determined that the dismissal was harsh unjust or unreasonable I now turn to the remedies which are available under s.390 of the Act.
“390 When FWA may order remedy for unfair dismissal
(1) Subject to subsection (3), Fair Work Australia may order a person’s reinstatement, or the payment of compensation to a person, if:
(a) Fair Work Australia 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) Fair Work Australia may make the order only if the person has made an application under section 394.
(3) Fair Work Australia must not order the payment of compensation to the person unless:
(a) Fair Work Australia is satisfied that reinstatement of the person is inappropriate; and
(b) Fair Work Australia 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.”
[54] In the context of this matter I determine that reinstatement is not an appropriate remedy. It would be untenable to reinstate the Applicant in the position in which she was employed immediately before the dismissal. To do so would put the Applicant in the same environment which caused the psychological difficulties she experienced whilst working under the management of Mr Gabe Williams. Reinstatement of the Applicant to another position with the Respondent on terms and conditions no less favourable than those on which the Applicant was employed immediately before the dismissal is in my view also inappropriate. I note that discussions on 22nd December 2009 between Ms Thomson and the Applicant on alternative positions for the Applicant with the Respondent proved unfruitful.
[55] Where reinstatement is not an appropriate remedy then I must consider the amount of compensation that should be given to the Applicant pursuant to s.39 of the Act which states:
“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), Fair Work Australia 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 Fair Work Australia considers relevant.
Misconduct reduces amount
(3) If Fair Work Australia is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, Fair Work Australia 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 Fair Work Australia 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 Fair Work Australia 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.
[56] In determining an amount of compensation I am required to take into account all of the circumstances of the case including the several specific factors enumerated in s.392(2) of the Act.
[57] I have taken into account each of the matters enumerated in s.392(2):
(a) The Respondent is an established national company and any order for compensation would not appear to impact on the viability of the Respondent.
(b) The Applicant has been employed for approximately 1 year.
(c) The remuneration that the Applicant would have received had she not been dismissed would have been either the relevant percentage of her wage if she was on WorkCover or her full normal wage if she had returned to work.
(d) The Applicant has mitigated her loss arising from the dismissal through gaining new employment.
(e) No information has been provided to Fair Work Australia as to the amount of remuneration received by the Applicant since the dismissal.
(f) No information has been provided to Fair Work Australia in relation to the difference between the actual compensation earned by the Applicant since the dismissal and the amount likely to have been earned by her in the same period.
(g) I have considered all of the circumstances of this case including all of the material filed by both sides and the oral evidence given on behalf of both sides.
[58] S.392(3) requires that Fair Work Australia must reduce any amount of compensation if the employee’s own misconduct contributed to the employer’s decision to dismiss the person.” I have not found any misconduct of the Applicant that contributed to the dismissal.
[59] I am mindful of the requirement in s.392(4) of the Act. In the present matter whilst issues of stress and anxiety were in existence during the period of employment there is no suggestion or submission that the termination of employment caused any “shock, distress or humiliation, or other analogous hurt” to the Applicant.
[60] Any compensation ordered by Fair Work Australia must only relate to the dismissal and not to matters generally occurring during the course of employment. Quite properly any dispute between the Applicant and the Respondent over the issue of compensation for the psychological difficulties suffered by the Applicant during her employment with the Respondent are matters to be dealt with under the relevant workers compensation legislation in Victoria.
[61] The Fair Work Act is concerned with a limited form of compensation relating to the dismissal itself. The limitations are contained in s392(3), (4) and (5).
[62] Having considered all of the circumstances of this case and having regard to each of the criteria in s.392(2) and mindful of the limitations in s.392(3), (4) and (5) I determine that the amount of compensation to be paid to the Applicant by the Respondent is 5 weeks’ pay.
COMMISSIONER
Appearances:
Ms Linda Gasper, the Applicant
Ms Kellie Thomson, for the Respondent
Hearing details:
Melbourne
7 May
2010
1 Hastie v Impress Australia Pty Ltd, [2008] AIRC 102, SDP Richards at PN60
Printed by authority of the Commonwealth Government Printer
<Price code C, PR997536>
0
0
0