Maree Hayes v Austrend International Pty Ltd T/A Austrend Group
[2016] FWC 4450
•5 JULY 2016
| [2016] FWC 4450 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Maree Hayes
v
Austrend International Pty Ltd T/A Austrend Group
(U2016/6469)
DEPUTY PRESIDENT GOOLEY | MELBOURNE, 5 JULY 2016 |
Application for relief from unfair dismissal.
[1] Ms Maree Hayes was employed by Austrend International Pty Ltd from 29 September 2014 until 20 April 2016. She alleges she was unfairly dismissed. Austrend submitted that Ms Hayes’ employment was not terminated.
[2] I granted Mr Garry Dircks permission to appear for Ms Hayes as the matter involved some complexity and I considered representation would permit the matter to be dealt with more efficiently. Austrend was represented by Mr Aravindham Rajaratnam. It was not clear if he was a paid agent. He said he provided services to Austrend but he was not being paid for his representation. For an abundance of caution I granted permission for Mr Rajaratnam to represent Austrend.
[3] At the commencement of the hearing I explained to the parties the issues that needed to be determined.
1. Whether Ms Hayes had been dismissed?
2. If the answer to that question was yes, whether Austrend was a small business?
3. If the answer that question was yes, and the Small Business Fair Dismissal Code applied, was the Code complied with?
4. If the answer to that question was no, was the dismissal harsh unjust or unreasonable?
5. If the answer to that question was yes, what was the appropriate remedy?
[4] I did this because, while Ms Hayes had filed submissions which addressed the relevant considerations under the Act, Austrend had not. It submissions addressed some of the factual issues to be considered, in particular issue (1) but it had not addressed any of the criteria set out in the Act. This is despite the submission of Ms Hayes addressing each of these issues.
[5] Both parties agreed that these were the issues that needed to be resolved.
[6] Austrend did not file a statement of evidence in this matter but I permitted Mr Rao, Austrend’s managing director, to give evidence based on Austrend’s submissions. Ms Hayes raised a number of objections to some of that evidence however she did not ask me to make formal rulings on those objections.
[7] After the evidence was heard I again reminded the parties of issues set out in paragraph [3] above and the need to address the criteria set out in ss. 387 and 392 of the Act.
Background
[8] Ms Hayes suffered a non work related injury on 7 January 2016 which prevented her from performing work. Ms Hayes’ original medical certificate advised that she had attended the emergency department and was unfit for work until 21 January 2016. On 8 January 2016 she sent Mr Denzil Rao, the owner of Austrend, an email attaching her medical certificate. 1
[9] On 8 January 2016, Ms Hayes spoke to Mr Rao. It was her evidence that when she told Mr Rao about the injury he suggested to her that she should resign. Ms Hayes told Mr Rao she did not intend resigning. Mr Rao asked her how long she would be off work and she told him it would be 12 -16 weeks but she would not know until she saw a specialist. Mr Rao told her that that would be too long and he could not go that long without a representative in Victoria. He told her he would need to collect the tools of trade and get a temporary person to take over the position. 2
[10] On 9 January 2016, Mr Rao sent Ms Hayes an email. It acknowledged that there was uncertainty around when Ms Hayes would be able to return to work. It advised her that they would need to get someone to perform the work. The letter asked Ms Hayes to communicate and update them on her progress and advise on a date with her return to full-duty. 3
[11] Ms Hayes gave evidence that after her conversation with Mr Rao on 8 January 2016 she spoke to her union representative and on his advice contacted Mr Rao to see if she could negotiate a departure from the business. She did so on Mr Rao’s evidence on or about 12 January 2016.
[12] Mr Rao said that Ms Hayes proposed an off the record discussion. He said she told him she had financial difficulties and if she was terminated she would be able to claim Centrelink benefits. Mr Rao said he told Ms Hayes that he was not going to terminate her employment and that prior to her return to work she would need a fitness for work certificate.
[13] Ms Hayes accepted that she told Mr Rao that she had financial difficulties but denied making any reference to Centrelink. She said that Mr Rao never told her that he required a fitness for work certificate before she could return to work.
[14] Ms Hayes continued to provide medical certificates. On 29 March 2016, Ms Hayes sent Mr Rao an email providing her latest medical certificate and advising that her expected date for her to return to work was Monday 11 April 2016. She asked him to respond to the proposed return to work date by email. 4 Mr Rao did not respond.
[15] On 4 April 2016 Ms Hayes rang Mr Rao who was in Germany at the time and he told her he could not speak to her. 5 Ms Hayes said she said “All I want to know is whether you are happy for me to come back to work next Monday the 11th.”6 Mr Rao could not recall what Ms Hayes said. He said it was the middle of the night and he was woken by the call. He said he did not want to stay on line because of the cost.
[16] Ms Hayes rang the office a few days later and was told that Mr Rao was overseas and would be returning the next week 7. Mr Rao could not recall if he was told that Ms Hayes had called.
[17] On 12 April 2016, Ms Hayes rang Mr Rao’s mobile but the phone was diverted to the office. She asked to speak to Mr Rao but he was not available. Mr Rao did not return this call. 8 Mr Rao said he was not in the office much during this time as his mother was ill.
[18] On 15 April 2016, Ms Hayes sent Mr Rao a text message asking him to call her. 9 Mr Rao did not respond.
[19] On 18 April 2016, Ms Hayes spoke to Mr Rao. When she identified herself Mr Rao said he could not speak to her as he was in a meeting. He said he would call her back. 10 He did not call her back. Mr Rao said that he was at the hospital dealing with his mother’s illness when he took the call.
[20] Ms Hayes said that her NUW representative rang Mr Rao and that Mr Rao told him that he didn’t know whether he wanted to keep her on or not. 11
[21] On 20 May 2016, Ms Hayes then sent Mr Rao an email. That email stated:
“After many attempts of communications with you, this is the situation it’s come to….
I have kept you informed with medical certificates and date of returning to work 11 April via emails and phone calls have been non responsive from you.
You give me no choice but to come to the conclusion that I have been dismissed by Austrend International. Can you please respond to this email within twenty four hours.” 12
[22] Mr Rao did not respond to the email and Ms Hayes treated that as a termination of her employment and she filed an unfair dismissal application on 26 April 2016.
[23] Mr Rao said he did not respond to any of Ms Hayes’ communications because she knew he required a fitness to return to work certificate before she would be permitted to return to work and it had not been provided.
[24] Ms Hayes accepted in cross examination that she never received a written notice of termination or verbal notice of termination.
[25] In his written submissions Mr Rao called into question the legitimacy of Ms Hayes’ medical certificates. It is not clear what relevance this submission had because Austrend did not submit that it had terminated Ms Hayes’ employment because she provided invalid medical certificates. 13
[26] Mr Rao said that Ms Hayes was required to produce the medical fitness certificate to ensure she could drive safely. 14 He also said he told Ms Hayes this and told her union representative.
Was Ms Hayes dismissed?
[27] Ms Hayes was, at the time these events occurred, a part time employee. From 11 April 2016 she was ready and willing to perform her duties. Her last medical certificate expired on 8 April 2016.
[28] Mr Rao said that he told Ms Hayes that she needed to have a fitness to return to work certificate before she could return to work. Ms Hayes denied that Mr Rao told her this. On this critical issue, I prefer Ms Hayes’ evidence. I do so because there was no reference in the email sent by Mr Rao on 9 January 2016 to any requirement to produce such a certificate. Further Mr Rao could have, once Ms Hayes advised him of her proposed return to work date, reminded Ms Hayes that she required such a certificate, but he did not.
[29] From 11 April 2016, Ms Hayes was ready, willing and able to work and no work was provided to Ms Hayes and nor was she paid. This was a repudiation of Ms Hayes’ contract of employment. She put Mr Rao on notice that she considered his conduct a termination of her employment and when he failed to respond she was entitled to accept the repudiation. The repudiation of the contract by Austrend was a termination of employment at the initiative of Austrend.
Was Austrend a Small Business?
[30] Mr Rao gave evidence that Austrend was a small business. He gave evidence that Austrend had 12 employees. Mr Rao was taken through the company structure to identify the employees. He gave evidence that his wife and two sons occupied a number of positions with the company but were not employees of the company. He said he had two warehouse employees, two delivery drivers, and a woman who helped his wife and daughter with administration and at 20 April 2016, four sales executives.
[31] I accept the submission that Austrend bore the onus of establishing it was a small business. It was submitted that there was insufficient evidence on which I could conclude that this was a small business. However it was not put to Mr Rao that his evidence should not be accepted and that he had more employees. In those circumstances I am prepared to accept his unchallenged evidence that Austrend was a small business.
Did Austrend comply with the Small Business Fair Dismissal Code?
[32] It was not disputed that Ms Hayes was initially employed on probation and her probation was extended. It was her unchallenged evidence that at the end of the extension of her probation nothing was said about her performance. In September 2015 Ms Hayes agreed to work part time. She gave evidence that she made this suggestion because sales were not reaching targets and this would reduce costs to the business. There was no dispute that Ms Hayes received two written warnings about her failure to meet her performance targets.
[33] Her first written warning was given on 27 November 2015. 15 A further warning was given on 21 December 2015.16 Ms Hayes accepted that she was not reaching the targets set by Austrend but she said she had diligently performed her duties but it had been very difficult to build sales.
[34] It is not clear how Austrend can rely upon the Small Business Fair Dismissal Code as it has maintained that it did not dismiss Ms Hayes. While there was evidence that Ms Hayes did not meet the performance expectations set by Austrend, there is no evidence on which I could conclude that it dismissed her for poor performance. There is no evidence on which I could conclude that Austrend believed on reasonable grounds that Ms Hayes’ conduct was sufficiently serious to justify immediate dismissal.
[35] I find therefore that the Code had no application.
Was the termination of employment harsh, unjust or unreasonable?
[36] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Fair Work Commission must take into account the following:
s387(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);
[37] Austrend did not address this criterion despite being invited to do so in the event I found that Ms Hayes had been dismissed and the Code had no application.
[38] Austrend made a number of unsubstantiated allegations about Ms Hayes including that she has breached her obligations under the Occupational Health and Safety Act 1984 (WA) and the Vexatious Proceedings Restrictions Act 2002. None of the allegations are supported by the evidence before the Commission.
[39] I am therefore not satisfied that there was a valid reason for the termination of Ms Hayes’ employment. Even accepting that there were performance issues, Ms Hayes went on leave on 16 December 2015, prior to the second warning being given. Ms Hayes acknowledged receipt of the warning but did not accept the reasons. Irrespective of the validity of this warning, clearly at this time, Austrend did not consider her performance to be such that her employment should be terminated. Ms Hayes did not return to work. If her performance was not such as to warrant the termination of her employment in December 2015, it could not have warranted the termination of her employment in April 2016.
s387(b) whether Ms Hayes was notified of that reason;
[40] As there was no valid reason for the termination of her employment, Ms Hayes could not have been notified of the reasons.
s387(c) whether Ms Hayes was given an opportunity to respond to any reason related to the capacity or conduct of the person;
[41] Because there was no valid reason for the dismissal, Ms Hayes was not provided with an opportunity to respond.
s387(d) any unreasonable refusal by the employer to allow Ms Hayes to have a support person present to assist at any discussions relating to dismissal;
[42] There was no discussion about the dismissal.
s387(e) if the dismissal related to unsatisfactory performance by the person—whether Ms Hayes had been warned about that unsatisfactory performance before the dismissal;
[43] The dismissal did not relate to unsatisfactory performance.
s387(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;
[44] Austrend did not address this criterion. This is a small business. I accept that Mr Rao faced difficulties because of his mother’s illness. However neither this nor the size of the business was a reason for Mr Rao to ignore Ms Hayes when she sought to return to work. If he required a certificate of capacity he could have responded to her repeated attempts to discuss her return to work with him and told her of his requirement.
s387(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;
[45] Austrend did not address this criterion. Again I do not consider the absence of specialist personnel explains the failure of Mr Rao to respond to Ms Hayes’ phone calls, texts and emails.
s387(h) any other matters that the Fair Work Commission considers relevant.
[46] Ms Hayes’ employment was terminated without notice.
Conclusion
[47] I find that the termination of Ms Hayes’ employment was unreasonable and harsh. I am not satisfied that Ms Hayes refused any direction by Austrend to provide a fitness for work certificate. Austrend chose to ignore o Ms Hayes’ repeated request to return to work. Its conduct was unreasonable. I also find the decision to not permit her to return to work was harsh. Ms Hayes had had a period off work due to a non work related injury. Mr Rao was aware that this had caused Ms Hayes financial difficulties. Austrend gave her no notice that she would not be permitted to return to work. This was not the act of a fair minded employer.
Remedy
[48] Ms Hayes is not seeking reinstatement of her employment. Austrend made no submissions on remedy despite being invited to do so in the event that I found the dismissal to be unfair.
[49] In assessing any amount in lieu of reinstatement, the Fair Work Commission is required to have regard to the following:
(a) the effect of the order on the viability of the employer’s enterprise;
[50] There was no evidence or submissions that any order would have any effect on the viability of the employer’s enterprise.
(b) the length of the person’s service with the employer;
[51] Ms Hayes had been employed since September 2014. This is not a long period of employment and would not cause me to make any adjustment to the amount of compensation.
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed;
[52] At the time of her dismissal Ms Hayes was working part time. Her pay slip disclosed that she earned $1057.70 per fortnight plus $100.48 superannuation. While it was her evidence that the change from full time employment to part time employment was temporary I am not satisfied that she would have returned to full time employment.
[53] It was put that Ms Hayes would have worked for another year. I do not accept that submission. Ms Hayes had not met her sales targets. She had received two written warnings about her failure to meet her sales targets. There was no evidence that those targets were unreasonable. Ms Hayes said she was doing all she could to meet the targets but it was very difficult. It was put that as Ms Hayes had never reached her sales target I could not be satisfied that her employment would have been terminated for this reason had she returned to work. I do not agree. Prior to her injury, Ms Hayes had received her second warning. It was clear from that warning that, if there was no improvement, her employment was at risk. There was nothing put to me that would support a finding that there would have been a sufficient improvement such that she would have remained in employment for a further year.
[54] I consider that Ms Hayes would have remained in employment for a period of two months. This would have been a reasonable period for her to have been given to improve her performance.
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal;
[55] Ms Hayes gave evidence that she had applied for two jobs and had looked at sales positions on Seek. Ms Hayes has been out of work since 20 April 2016. I consider that she had made some attempt to mitigate her loss but given my decision in this matter I do consider the limited efforts at mitigation are cause to reduce the amount of compensation.
(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;
[56] Ms Hayes not had employment or other work since 20 April 2016.
(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;
[57] Given my decision this criteria is not relevant.
(g) any other matter that the Fair Work Commission considers relevant.
[58] I do not consider that there are any other relevant criteria.
Conclusion
[59] I therefore order Austrend to pay Ms Hayes $4230.80 less tax according to law and to pay to Ms Hayes’ superannuation fund $401.92 within 14 days of the making of this order.
DEPUTY PRESIDENT
Appearances:
G. Dircks for the Applicant.
A. Rajaratnam for the Respondent.
Hearing details:
2016.
Melbourne and Perth, by video link:
July 4.
1 Exhibit A1 at MH6
2 Ibid at [20]-[26]
3 Exhibit R1 at EV7
4 Exhibit A1 at MH7
5 Ibid at [33]
6 Ibid at [34]
7 Ibid at [36]
8 Ibid at [37]
9 Ibid at MH8
10 Ibid at [42]-[43]
11 Ibid at [47]
12 Ibid
13 Exhibit R1 at page 5 to 6
14 Ibid at page 7
15 Exhibit R2
16 Ibid
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