Margaret McKinnon v Goldtide Pty Ltd

[2015] FWC 3565

[2015] FWC 3565

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Margaret McKinnon
v
Goldtide Pty Ltd
(U2014/11863)

SENIOR DEPUTY PRESIDENT HARRISON MELBOURNE, 28 MAY 2015

Application for relief from unfair dismissal.

[1] This decision concerns an unfair dismissal application made by Ms McKinnon pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act). The applicant had been employed by Goldtide Pty Ltd (Goldtide or the respondent). The principal of Goldtide is Dr G Altman who is a specialist medical practitioner. He is a consultant psychiatrist. The applicant was employed in August 2007 and her dismissal took effect on 12 August 2014.

[2] At all times during the applicant’s employment, and during the hearing before me, Dr Altman was referred to as the employer. I too will describe him as the employer in this decision. It is not clear if he is the sole director of Goldtide. However, he engaged the applicant and she worked solely for him in his consulting rooms in Cremorne in the State of New South Wales. The applicant’s position was variously described as receptionist, PA, secretary and medical secretary. For the purposes of this decision nothing turns on the different titles, so I will refer to the applicant as a medical secretary. 1 She worked in Dr Altman’s consulting rooms, as did one other medical secretary. The respondent is a small business employer for the purposes of the Act.

[3] As the respondent is a small business employer, I am obliged to first consider whether the dismissal of the applicant was consistent with the Small Business Fair Dismissal Code (Small Business Code). 2 If the dismissal was consistent with the Small Business Code, then the effect of s.385 of the Act is that the applicant will not be able to establish she was unfairly dismissed. Later in this decision I discuss in more detail the reasons for the termination of the applicant’s employment but, for present purposes, it is adequate to indicate that it was not a “summary dismissal” as that term is used in the Small Business Code. Therefore, the “other dismissal” provisions need to be considered. To be consistent with the Small Business Code, an employer “must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job. The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.”

[4] I am not persuaded Dr Altman’s discussions with the applicant, and his correspondence with her, are such as to make the dismissal consistent with the Small Business Code. As will be seen in my summary of the evidence, there were numerous exchanges between the applicant and Dr Altman about the manner in which she interacted with him and aspects of her work performance. Dr Altman was not satisfied with her conduct and attitude towards him. Their working relationship had broken down. However, Dr Altman did not inform the applicant of a reason or reasons why she was at risk of being dismissed, nor did he indicate to her that, if there was no improvement, she was at risk of being dismissed. I find that the dismissal of the applicant was not consistent with the Small Business Code. Accordingly, I now need to consider whether the applicant’s dismissal was harsh, unjust or unreasonable. In this consideration, s.387 of the Act contains criteria I must take into account. It is first necessary to make some findings based upon the evidence. Before doing so, I wish to make a number of preliminary comments.

[5] The applicant and Dr Altman each appeared for themselves. They each gave oral evidence and were cross-examined. Each filed documentation which I accepted as constituting their witness statements and their submissions. Each also attached details of correspondence between them. One attachment to the statement of the applicant purported to be a statement of a person, but did not identify who the deponent was. It was not dated or signed. I have placed no weight on that document. The applicant tendered a witness statement of Mr X. She also sought to tender a witness statement of Mr Y, however I did not allow the tender of that document. Both Mr X and Mr Y had been, or still were, patients of Dr Altman. Understandably, Dr Altman expressed significant concerns about their being called to give oral evidence and the possibility that he may have to cross-examine them. I allowed the statement of Mr X to be tendered, but did not require him to give any additional oral evidence. The statement of Mr Y was not of significant weight or relevance such as to warrant it being accepted in evidence. Ms Cathy Wilson is the other medical secretary who worked for Dr Altman. Ms Wilson was called by Dr Altman to give oral evidence and she had also prepared a witness statement which was tendered.

[6] In conference with the parties, I attempted to establish some agreed facts and reach a compromise as to how the matter may be able to proceed as efficiently as possible. The applicant insisted that the matter proceed in open court by way of a hearing. In light of that, the matters discussed in the conference and it being apparent there would be contested facts, I proceeded to hear the matter by way of a hearing. That proved to be a difficult exercise. The applicant displayed contempt for Dr Altman and he went to great lengths to identify every aspect he thought unacceptable, petty through to significant, over the last three years in which she worked for him. I fully accept that the applicant was very unhappy about the manner in which her working relationship with Dr Altman came to an end. Her opinion, in this respect, was not without justification. I accept Dr Altman considered the applicant rude and even hostile towards him from around mid-to late 2011 through to the date of her dismissal. However, the manner in which each of them conducted themselves in the hearing room reflected poorly on them. This was an occasion when some representation for both parties would have been highly desirable if, for no other reason than, to inject some objectivity into their respective positions. The relationship between Dr Altman and the applicant was such that it was difficult for them to concentrate on identifying, in a logical manner, the issues relevant to the application. Rulings on the same matters needed to be made several times to focus the parties on issues that I had indicated would be relevant to my application of s.387 of the Act. This difficulty was further exaggerated by the almost complete absence of consensus on key facts. Dr Altman insisted he had warned the applicant on numerous occasions about her behaviour; the applicant denied she had ever been counselled or warned. She said that no issue about her conduct or performance had ever been raised with her either formally or informally.

[7] I now turn to the evidence and my findings based on it.

[8] The applicant commenced employment in August 2007. There was no letter of appointment in evidence, nor any other document provided to the applicant setting out any of the terms and conditions of employment.

[9] Dr Altman’s consulting rooms were open Monday to Friday. The applicant worked two days a week, generally Monday and Tuesday. Ms Wilson worked the other three days. Their standard hours of work were from 8:30am to 4:30pm. The applicant was engaged on a casual rate and, at the time of her dismissal, was receiving $35.50 per hour.

[10] There was no relevant evidence in relation to the applicant’s employment prior to February 2011. I find that her work performance prior to this time was acceptable to Dr Altman. On 22 February 2011, the applicant sent a letter to Dr Altman. 3 In it, she advised that she had contacted a number of recruitment agencies enquiring about the average salary for a personal assistant. She indicated that, at that time, both she and Ms Wilson were receiving $32.50 per hour and that she had been told by the recruiting agencies that the average hourly rate for a casual personal assistant was in the range of $30-$35 per hour. She noted that the doctor had been increasing the hourly rate each year by around a dollar and asked him to give some consideration to “a percentage increase or a dollar figure that is increasing annually”. She said she looked forward to his feedback.

[11] Despite the wording of the letter, the applicant insisted it did not constitute a request for a pay increase. 4 Dr Altman had understood it was such a request and had indicated to the applicant that she was employed as a casual and being paid well above the minimum rate. If she wanted to change her employment from casual to part-time, that would result in the hourly rate being decreased. The applicant did not continue to press for an increase in her hourly rate or for a change in the manner it was adjusted.

[12] Subsequently, Dr Altman detected a significant change in the manner in which the applicant interacted with him. He spoke to the applicant about this. He was not able to indicate a precise day when he did so but he thought it was within three months after the time he had declined the applicant’s request for a pay increase or to vary the manner in which her hourly rate was adjusted. I accept that the applicant had become rude and abrupt in the manner in which she interacted with Dr Altman. It is also likely his description of her being “extremely unfriendly” is accurate. The doctor said this behaviour had occurred at times when patients were present and they would have observed the hostility. 5 I have some doubt as to whether the evidence establishes that any patients observed the hostility the applicant displayed to Dr Altman, although I accept it would be undesirable for him to have called any of his patients to give that evidence. About the unsatisfactory manner in which the applicant interacted with Dr Altman, I prefer his evidence to the applicant’s. Although I accept he spoke to her about her attitude towards him, I am not persuaded that Dr Altman made it clear to the applicant that, if her behaviour continued, her employment may be in jeopardy.6

[13] The applicant spoke to Ms Wilson after Dr Altman had declined to provide a pay rise. Ms Wilson was unable to indicate the date when this occurred. I accept, however, that the applicant said words to the effect that, as she had not got a pay rise, she was only going to do the bare minimum of work. 7 Ms Wilson was concerned about this statement, as it would mean that she would have an increase in her own workload. She was also concerned as she did not believe that she was being underpaid by reference to the hourly rates of other medical secretaries working in nearby consulting rooms. She thought that Dr Altman might decide to reduce the hourly rate. From around this time, Ms Wilson formed the view that the applicant and Dr Altman had a poor working relationship and that the applicant had been discussing the nature of their work relationship with a mutual work colleague and a patient of the practice.8

[14] In January 2012, Dr Altman spoke to the applicant and asked her to stop arriving at work early and leaving early without permission. He confirmed her hours were 8:30am to 4:30pm. The applicant was unhappy about this request.

[15] On 5 June 2012, the applicant wrote to Dr Altman about “flexible hours”. She asked the doctor for his “reconsideration of flexible hours”. She said that she had been working flexible hours since 2007 but, as requested by Dr Altman, had been working 8.30am to 4.30pm since January 2012. On occasions she would arrive early and would sit in the car park waiting for 8.30am which she thought was a “gross waste” of her time. She asked the doctor to rethink the arrangement and wanted the flexibility to start from 8:00am to 8:30am and finish from 4:00pm to 4:30pm. 9

[16] I accept the evidence of Dr Altman and Ms Wilson that the required working hours were, and always had been, 8:30am to 4:30pm. 10

[17] On 8 June 2012, Dr Altman wrote a letter to the applicant in response to her letter of 5 June 2012. He said that the working hours were to remain 8:30am to 4:30pm and indicated these were the same as for Ms Wilson who had been working for him for many years. The hours were better for his practice. He referred to the request the applicant had previously made for an increase to her salary, which he had declined, and commented that, after that time, there had been a marked deterioration in her “manner, attitude and behaviour towards me and some reduction in your productivity in the practice”. He noted that, on two occasions, he had mentioned this fact to her and that he was dissatisfied with the “adverse change in manner, attitude and behaviour towards me.” He confirmed that this was the third time he was pointing it out to her. The applicant says she did not receive this letter and only saw it when it was attached to the employer’s response form in this matter. I accept the evidence of Dr Altman and Ms Wilson, who had typed the letter, that it was sent to the applicant. 11 I also accept that Dr Altman had decided to send the letter to the applicant’s home address because his relationship with her at that stage was strained and he thought it was an easier way to raise his concerns with her.12

[18] Throughout 2013, I accept that Dr Altman had concerns about filing errors which he believed were more likely than not to be have been made by the applicant. These errors continued into 2014. 13 I am not able to find, with any confidence, that he counselled or warned the applicant about these errors.

[19] Dr Altman had concerns about the use the applicant was making of the work computer during working hours. He annexed to his statement examples of documentation prepared by the applicant concerning a development application and financial information about an investment unit. Dr Altman said he raised his concern about her personal use of the computer. 14 The applicant denies he complained about her use of the computer. On balance, I find that he did express concern to the applicant about this, although I am unable to identify any dates on which this took place, nor whether he made it clear how unacceptable he considered the personal use to be.

[20] The evidence about what occurred in 2013 is unclear as to the times and occasions Dr Altman spoke to the applicant about her attitude and behaviour towards him. I accept that, generally, the relationship between the two did not improve during that time, but I am unable to make any other findings. I accept the evidence of Ms Wilson that the applicant told her on a number of occasions that there were problems between her and Dr Altman and that the working relationship was strained. 15

[21] The applicant made handwritten entries into a document which was described as a record of hours worked over and above normal hours. 16 It records times when she left early or worked make-up hours. The applicant had made an entry into that book in relation to her attendance at a medical appointment on 24 June 2014. She had recorded this as 23 June 2014. Another entry related to her leaving three-and-a-half hours early on 28 July 2014 when she went to a funeral. She said that, to make up for this time, she came in early on the day of the funeral and the following day at 6:45am.17 The applicant said that she was asked to keep these records by Dr Altman. Dr Altman said he had never asked her to keep such records and was unhappy with the fact that she did.

[22] In relation to the entry concerning the applicant’s attendance at a medical appointment on 24 June 2014, I accept it was a mistake. There is no basis for Dr Altman’s allegation that it is an example of inaccuracies in the bookkeeping or in support of his belief that the applicant, on several occasions, “took off early or arrived late”. 18

[23] I accept that the decision by the applicant to start at 6:45am on two days to make up the time she was taking off to attend a funeral was not discussed with Dr Altman. She should have done so. I accept that Dr Altman spoke to the applicant about this and expressed his dissatisfaction with her about this incident. This discussion took place approximately two weeks before the applicant was dismissed. 19

[24] The applicant was not given regular payslips. An employer is legally obliged to give an employee pay slips. 20 Dr Altman conceded he had not.21 It appeared he believed entries into a pay book made by the applicant and Ms Wilson was acceptable. His explanation of not understanding his responsibility to provide pay slips is surprising and particularly concerning in light of the fact that he had an accountant who assisted him with business issues. What is also surprising is that the applicant, who time and time again made much of this fact during the hearing, did not consider it appropriate that she raise it with Dr Altman. She said she had understood for some time that there was an obligation to provide pay slips but did not think it was for her to raise this with him. Group certificates were provided to the applicant and Ms Wilson.22

[25] On 5 August 2014, the applicant wrote to Dr Altman indicating that she understood Ms Wilson was considering retirement and, if this was the case, that the applicant would be happy to work extra days or full-time. She asked Dr Altman to consider this request. 23 Dr Altman had not discussed the possibility of the applicant working more hours. As he was unhappy with her performance, he had not contemplated offering her more work.

[26] Dr Altman put numerous matters to the applicant in cross-examination about her relationship with him, each of which she denied. It is adequate that I list the applicant’s actions that he observed. She had ceased saying good morning to him when he arrived, she was abrupt, angry and impatient with him; she gave him the silent treatment; she would toss files at him; she would ignore him on occasions and be dismissive of him; she would turn away from him when he was talking to her and she would mock him in front of patients. 24

[27] I cannot make any finding as to any occasions or dates when these actions occurred, nor about when Dr Altman expressed his concern about them to the applicant. However, having heard all of the evidence, I accept that these are examples of the sort of body language and actions that the applicant displayed to Dr Altman. I am persuaded they do represent examples of her interaction with him.

[28] Dr Altman decided to terminate the applicant’s employment. In the afternoon of 12 August 2014 he said to the applicant he wanted to discuss her employment. Dr Altman had decided not to give the applicant any advance notice of the fact he was going to terminate her employment in the meeting. He said he had formed a dim view of her character and that the termination meeting had to be carried out without her first being notified. He considered the applicant would be a serious risk to the practice as he would be in his office most of the day and the applicant would be in the front office alone with access to the business computer records and patient files. She had displayed the tactic in the past of denying any wrongdoing and misrepresenting what had taken place. 25

[29] In his oral evidence, Dr Altman said the applicant had been making less effort at work over the last few years since her pay request was refused. He had started to divert banking and reconciliation of accounts away from her. In fact, he had stopped asking her to get him morning and afternoon tea and lunch. He indicated that, although he thought it sounded absurd, this was because he had formed a view about what the applicant may put in his food and drink. 26

[30] The termination interview was brief. It is adequate for me to indicate that I accept that, at the commencement of the meeting, Dr Altman told the applicant he had decided to terminate her employment. He indicated that the reason was the applicant’s attitude towards him. He made a reference to inaccuracies in her filing. 27 Although exactly what was said is unclear, it was probably not much. However, I accept that Dr Altman indicated that there was a breakdown in the trust necessary for their working relationship.28 He did not give the applicant any opportunity to respond to any reason he gave for deciding to dismiss her.

[31] The applicant said that, as she did not know that the interview was to terminate her services, she did not have an opportunity to have a support person available. There is no evidence that she asked for one, although I do accept that she was taken by surprise when she found out the reason for the meeting. Dr Altman accepts he did not give the applicant an opportunity to have a support person present at the time of the termination. 29

[32] A termination letter dated 14 August 2014 was prepared by Ms Wilson and posted to the applicant. There was some disagreement between the applicant and Dr Altman as to whether it was posted on that day or the previous day, 13 August. 30 Ms Wilson seems to accept she posted it on the 13th. Little turns on this.

[33] The letter refers to “both overt and subtle hostility” from the applicant towards Dr Altman over the past three years. The behaviour is said to have begun after the applicant’s request for a pay increase was declined and had deteriorated after Dr Altman had stopped her arriving and departing at times that suited her and without permission. It said the poor working relationship had manifested itself in rudeness directed towards Dr Altman which, on occasions, was in front of patients. He said that she had shown a lack of cooperation in carrying out routine daily tasks. He lacked trust and confidence in the applicant. The letter said that Dr Altman had also mentioned in the termination interview his concern about the applicant’s personal use of the computer. It confirmed that a termination payment, equivalent to three months’ wages, would be made. 31

[34] The applicant said that the letter had added extra reasons for her dismissal by noting her personal use of the work computer and that her attitude had deteriorated since she was declined a pay rise. She says these things were not mentioned in the termination meeting of 12 August 2014. I am unable to confidently make a finding about whether these two matters were raised in the discussion on 12 August 2014.

[35] The applicant indicated that she did not receive the termination letter until 12 September 2014. 32 I accept the evidence of Ms Wilson that she posted the letter on 13 or 14 August 2014. There appears to have been some part of the letter, or its enclosures, that were returned to the post office box. These documents were then resent to the applicant. It also appears that, around this time, the applicant was overseas for a period.

[36] On or about 18 August 2014, the applicant returned to Dr Altman’s consulting rooms. She said she had returned to pick up personal belongings. At a time when Ms Wilson was away from the reception desk, the applicant took the wage book. The applicant did not ask Ms Wilson or Dr Altman if she could do so. I do not accept the applicant’s evidence that she had asked Ms Wilson if she could take the book. 33 Shortly after this time, Dr Altman contacted the applicant and asked her to bring the wage book back, as this was his property and had been taken without his permission.34 After taking advice from the police, the applicant took photocopies of the wage book and returned it to Dr Altman.

[37] On 22 October 2014, the applicant sent an email to a number of Dr Altman’s patients. She referred to the fact she did not get an opportunity to say goodbye to them when “Dr Altman suddenly and unexpectedly terminated my employment after seven years”. She said she was still struggling with what had happened, did not know if it was the right thing to contact the patients and hoped it was not crossing professional boundaries. She said she would be happy to hear from them. She said they should “feel free to pass on my email to any of the vets”. The reference to “vets” is to Vietnam War veterans, a number of whom were Dr Altman’s patients. There was also evidence that, since her dismissal, the applicant was seen early in the morning around Dr Altman’s rooms speaking to his patients. 35

[38] I now turn to consider s.387 of the Act. In considering whether I am satisfied that the applicant’s dismissal was harsh, unjust or unreasonable, I must take the factors in paragraphs (a) to (h) 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)

[39] I should first record that it was not in issue that the applicant interacted with Dr Altman’s patients satisfactorily. The evidence of Mr X, who had attended Dr Altman’s medical rooms on a weekly basis, supports this. Dr Altman does not criticise the manner in which the applicant dealt with his patients. 36

[40] I have decided that there was a valid reason for the applicant’s dismissal. The manner in which she interacted with Dr Altman was not acceptable. In the small working environment of his consulting rooms, when it was only the doctor and her in the rooms, her behaviour and the way in which she interacted with Dr Altman was inappropriate. She was rude and unfriendly towards him. Her conduct was sufficiently unacceptable to justify Dr Altman’s decision that he did not want her to work for him any longer.

[41] I have given serious consideration as to whether Dr Altman was overly sensitive in forming the views he did about the applicant’s conduct. Having considered all of the evidence and after observing the parties in court, I am satisfied that the applicant’s behaviour and conduct towards Dr Altman was as described by Dr Altman. However, in my opinion, the views formed by Dr Altman that she might have put something in his tea or food, or that she was a security risk to the building, computer and patient files, seem unreasonable. There is no proper basis on which in the evidence for him to have formed these views. I do, however, accept that he genuinely seemed to hold these concerns.

[42] I also find that the applicant took time off work without first seeking permission to do so. She had been earlier advised that she did not work flexible hours but the set hours of 8:30am to 4:30pm. Her action in taking time off on 28 July 2014 to attend a funeral without asking Dr Altman if she could do so also constitutes a valid reason for her dismissal.

[43] I am not persuaded that either the misfiling of documents, or the personal use of the computer, individually or together, constituted a valid reason to dismiss the applicant.

(b) whether the person was notified of that reason

[44] The applicant was notified of Dr Altman’s concern about her conduct towards him and the manner in which she interacted with him. She was advised about this in the latter half of 2011 and in the letter of 8 June 2012. I am satisfied it is likely she was also spoken to about her manner, attitude and behaviour towards Dr Altman subsequently, but have not been able to identify the occasion or times when this occurred.

[45] In or around January 2012, the applicant was told to stop coming in early and leaving late. She was told this again in the letter of 8 June 2012.

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[46] The applicant was given little opportunity to respond in the interview on 12 August 2014. Prior to going into the interview, she had no idea that Dr Altman had decided to inform her that her services would be terminated effective that day. His decision had been made and the applicant was given no opportunity to persuade him to reconsider.

(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

[47] There was no evidence that the applicant asked for a support person to assist her at the interview on 12 August 2014. However, for the reasons I have earlier given, she had little opportunity to consider whether it might be appropriate for her to have such a person. She did not know until she was in the interview that it was for the purpose of Dr Altman informing her that her employment was being terminated.

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

[48] The applicant had been warned about her unsatisfactory performance. She had been warned in late 2011, in writing in the letter of 8 June 2012, and on other occasions when Dr Altman raised his concerns about her attitude towards him and the manner in which she spoke to him and interacted with him. If her decision to work flexible hours outside the set hours of work constitutes unsatisfactory performance, she was also warned that she should not do so.

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in affecting the dismissal

[49] I have earlier indicated that the medical rooms consisted of Dr Altman and two part-time medical secretaries, of which the applicant was one. There were no other persons identified as being ones who might have provided advice about the appropriate procedures to undertake to affect the dismissal. The doctor indicated he was a member of the Australian Medical Association, although it is not apparent that he took any advice from this organisation about the procedures he should adopt. It is regrettable that he was not advised to have kept contemporaneous notes about the occasions when he counselled the applicant.

[50] In the hearing, Dr Altman referred to the fact that he is a psychiatrist, not a businessman. It seems this was a reason I should accept the less-than-satisfactory procedure he adopted in dealing with the concerns he had about the applicant’s conduct. However, as he is also an employer, it is reasonable to have expected him to have given a clear indication to the applicant that, if her conduct and behaviour did not improve, her employment was in jeopardy.

(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

[51] I repeat the matters I have referred to above in respect to paragraph (f). The absence of any human resource management specialist or expertise was apparent through the manner in which Dr Altman approached the dismissal of the applicant. The procedures followed by Dr Altman in effecting the dismissal of the applicant were not ideal. Had he been advised properly, he would have given the applicant a final warning letter identifying the matters she needed to address and advising her that her employment would be in jeopardy if she did not address these. Had Dr Altman taken advice, he would have made some contemporaneous notes of the occasions on which he says he counselled or warned the applicant.

(h) any other matters that the FWC considers relevant

[52] At the time of the hearing, the applicant was 61 years of age. She is concerned about the prospects of finding further employment. She had applied for several positions since the termination, but had been unsuccessful in obtaining alternate employment. She had intended to stay working with Dr Altman until she planned to retire. 37

[53] I have decided that the dismissal of the applicant was harsh and unreasonable. Despite my finding that Dr Altman had a valid reason to dismiss the applicant, the other factors I have referred to above weigh in favour of a finding that her dismissal was nonetheless unfair. She had worked for Dr Altman for 7 years and, other than the letter of 8 June 2012, was not given any written advice that any aspect of her performance was unsatisfactory. She was not ever given any written or verbal advice her employment was in jeopardy. It seems that the events in July 2014, when the applicant took time off without first getting permission to do so, triggered the decision to dismiss her. In my opinion, that was too harsh a reaction. A final warning would have been appropriate at that stage.

[54] The parties each accepted that, in the event I was to consider a remedy, reinstatement would not be practicable. I agree. I am well satisfied that a satisfactory working relationship could not be resumed. Reinstatement would be inappropriate. That then leads me to consider whether an order for compensation would be appropriate and, if so, the amount. The parties only briefly addressed this and I do not have adequate information to apply each of the considerations referred to in s.392. I will give the parties an opportunity to file further evidence and submissions confined solely to this matter. Directions will issue shortly in this respect. However, I urge the parties to promptly consider reaching an agreement on terms to resolve this application and avoid a further round of submissions and rulings by me. The applicant has received three months’ pay in lieu of notice and should make a realistic assessment of what further compensation she would be likely to obtain. Dr Altman should also consider the rulings I have made and whether a settlement proposal might be put to the applicant.

Conclusion

[55] The dismissal of the applicant was harsh and unreasonable; she has been unfairly dismissed. Further consideration will be given to whether I should make an order for compensation and, if so, the amount.

SENIOR DEPUTY PRESIDENT

Appearances:

Ms M McKinnon in person.

Dr G Altman for the respondent.

Hearing details:

Sydney

2015

3 and 19 February

 1   It is likely the applicant was covered by either the Clerks-Private Sector Award 2010 [MA000002] or the Health Professionals and Support Services Award 2010 [MA000027]. For the purposes of this decision, it is not necessary for me to make a finding on which award she was covered by.

 2   Fair Work Act 2009 (Cth) s.396.

 3   A1 attachment B; R1 attachment M.

 4   PN674 - PN689.

 5 R1 paras. 3 and 4.

 6 R2 “Supplement” para. 2.

 7 R2 para. 5, PN1637 - PN1642.

 8   Ibid; PN424 - PN 450; PN463 - PN468.

 9   A1 attachment C, R2 attachment I.

 10 R2 para. 9; PN368- PN396; PN1752.

 11 R1 Overview page 2, para. 2; page 6, para. 3; page 10, para. 21; pages 16 and 17.

 12   PN1335.

 13 R1 page 5, para. 1; page 21, para. 9; R2 para. 12; PN749 - PN751.

 14 R1 page 5, para. 2.

 15 R2 para. 10.

 16   A1 annexure G , R1 annexure J.

 17   A1 paras. 25 and 26.

 18 R1 page 6, para. 4.

 19 R1 page 16; PN360 - PN366.

 20   Fair Work Act 2009 (Cth) s.536; Fair Work Regulations 2009 (Cth) regs.3.45, 3.46.

 21   PN318 - PN329.

 22 R1 page 7, para. 6.

 23   A1 with attachment A; R1 attachment C.

 24   PN868 - PN887.

 25 R1 page 16; page 17, para. D.

 26   PN850 - PN858; see also PN1441 - PN1454.

 27   A1 para. 9.

 28 R1 page 5, para. 13; page 8, para 13.

 29 R1 page 17, para. D.

 30   PN1689 - PN1691.

 31   A1 attachment D; R1 attachment A.

 32   A1 para. 18.

 33   PN296 - PN304.

 34   A1 paras. 16 and 17.

 35   PN1007 - PN1033.

 36   E.g. PN1323.

 37   A1 paras. 27 and 28.

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