Maria Girdler v Western Sydney Community Legal Centre Incorporated T/A Western Sydney Community Legal Centre (WSCLC)
[2017] FWC 4130
•22 AUGUST 2017
| [2017] FWC 4130 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Maria Girdler
v
Western Sydney Community Legal Centre Incorporated T/A Western Sydney Community Legal Centre (WSCLC)
(U2017/2924)
COMMISSIONER RIORDAN | SYDNEY, 22 AUGUST 2017 |
Application for an unfair dismissal remedy.
[1] Ms Maria Girdler was employed by Macquarie Legal Centre as its Manager from 1998 to June 2016. In July 2016, Macquarie Legal Centre amalgamated with two smaller legal centres, namely, the Mount Druitt Community Legal Centre and the Hawkesbury Nepean Community Legal Centre. Ms Girdler was appointed Manager of the new entity which was named the Western Sydney Community Legal Centre (WSCLC).
[2] Ms Girdler eventually signed an employment contract with WSCLC on 12 December 2016 which contained a reference to the Social Community Home Care and Disability Services Industry Award 2010 as the relevant award in relation to her employment condition.
[3] On February 2017, Ms Girdler was notified that her employment was terminated due to her position as General Manager being made redundant.
[4] Leave was granted in accordance of section 596 of the Fair Work Act 2009 (the Act), to allow for Mr Rauf, of Counsel, along with Ms Forster from HWL Ebsworth Lawyers to represent Ms Girdler and for WSCLC to be represented by Mr Stanton and Ms Shaw from AFEI Legal.
[5] The matter was heard on 21 June and 13 July 2017. Ms Girdler attested to two witness statements in support of her application. WSCLC relied on two witness statements from Ms Jill Gientzotis, who is an organisational consultant who was contracted by WSCLC to conduct a review of its organisational and staffing structures. Relevantly, no member of the WSCLC Committee of Management gave evidence in the proceedings. At the commencement of the second day of the proceedings on 13 July 2017, WSCLC advised the Commission that it no longer pressed its jurisdictional objection in relation to section 389, i.e., that Ms Girdler’s termination was a genuine redundancy on the basis that WSCLC could not satisfy the two obligatory requirements of section 389.
Issues
[6] As a result, the only issue for determination is whether the decision to terminate Ms Girdler was harsh, unjust or unreasonable and if so, what is the appropriate remedy.
Background
[7] WSCLC is a non profit community legal centre which provides free general and specific legal services to disadvantaged members of the community in Western Sydney. WSCLC’s operation is predominantly funded via grants from the NSW and Commonwealth Governments and via donations from local institutions, e.g., Macquarie University. The Committee of Management has overall responsibility for the operation of the WSCLC. Members of this committee are all unpaid volunteers.
[8] In September 2016, Ms Girdler recommended an organisational review of WSCLC to the Committee of Management. Whilst the Committee of Management endorsed Ms Girdler’s recommendation, Ms Girdler was excluded from the Committee of Management meetings that formulated the terms of reference for the review and the hiring of the consultant. Ms Gientzotis was engaged to conduct this review. Ms Gientzotis interviewed all 63 employees of WSCLC.
[9] During the course of the next few months, Ms Girdler was either not invited or requested to leave meetings of the Committee of Management where issues relating to the restructure were being discussed.
[10] Ms Girdler was invited to a meeting on 24 February 2017 with Ms Gientzotis and the Treasurer of the WSCLC, Ms Millson. Ms Girdler was not advised to bring a support person to this meeting. Ms Gientzotis presented Ms Girdler with the following letter at this meeting:
“Dear Maria,
Termination of your Employment by Reason of Redundancy
The purpose of this letter is to confirm the outcome of a recent review by the Western Sydney Community Legal Centre (the employer) of its operational requirements and what it means for you.
As a result of the amalgamation of the Macquarie Legal Centre, the Mount Druitt Community Legal Centre and the Hawkesbury Nepean Community Legal Centre the position of General Manager is no longer needed. Regrettably this means your employment will terminate. This decision is not a reflection upon your performance.
We wish to thank you for your eighteen years service to the Macquarie Legal Centre. New positions of Director of the Western Sydney Community Legal Centre and that of Human Resource Manager will be advertised in the following week.
Your employment will end on the 24th February. Based upon your contract, I understand your notice period is four weeks, plus an additional notice period of one week for being over 45 years of age and your notice period will be paid out.
Due to your employment ending because of redundancy, you will be paid a redundancy payment being the National Employment Standard of 12 weeks.
You will also be paid your accrued entitlements and any outstanding pay up to and including your last date of employment. This includes superannuation.
If you have been paid annual leave in advance, any amount of annual leave still owing will be deduced from your final pay.
You may seek information about minimum term and conditions of employment from the Fair Work Ombudsman. If you wish to contact them you can call 13 13 94 or visit their website at
We thank you for your valuable contribution during your employment with us. Please contact me if you wish to obtain a reference in future.
Yours Sincerely
Gayle Barbagello
President” (my emphasis)
[11] I note that the only reason given to Ms Girdler for the termination of her employment was because the position of “General Manager was no longer needed”, thereby making Ms Girdler redundant.
[12] It is not contested that Ms Girdler’s role of Manager was split into 3 roles following the restructure. The three new roles that were created were:
- Director
- Human Resources Manager
- Community Programs Manager
[13] I note that the salary package for the role of Director was set at $120,000, which is approximately 20% higher than Ms Girdler’s final salary.
[14] Ms Girdler applied for both the Director and HR roles. Ms Girdler was not offered an interview for either role. I note that the WSCLC has not yet advertised the Community Programs Manager position.
Statutory requirements
[15] The relevant provisions of the Act in relation to this matter are:
“381 Object of this Part
(1) The object of this Part is:
(a) to establish a framework for dealing with unfair dismissal that balances:
(i) the needs of business (including small business); and
(ii) the needs of employees; and
(b) to establish procedures for dealing with unfair dismissal that:
(i) are quick, flexible and informal; and
(ii) address the needs of employers and employees; and
(c) to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.
(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a "fair go all round" is accorded to both the employer and employee concerned.”
“382 When a person is protected from unfair dismissal
A person is protected from unfair dismissal at a time if, at that time:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the employment;
(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.”
“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.”
“386 Meaning of dismissed
(1) A person has been dismissed if:
(a) the person's employment with his or her employer has been terminated on the employer's initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
(2) However, a person has not been dismissed if:
(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or
(b) the person was an employee:
(i) to whom a training arrangement applied; and
(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;
and the employment has terminated at the end of the training arrangement; or
(c) the person was demoted in employment but:
(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and
(ii) he or she remains employed with the employer that effected the demotion.
(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person's employment, to avoid the employer's obligations under this Part.”
“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.”
Submissions
[16] Mr Rauf submitted that, if WSCLC is no longer relying on the exemption provided for in section 389 of the Act, then there was no valid reason for Ms Girlder’s termination. Mr Rauf referred to the termination letter (see above) which states:
“Importantly, this decision is not a reflection from your performance”
[17] Mr Rauf submitted that WSCLC have not complied with the termination provisions of Ms Girdler’s contract, which states:
“26.1 The employer talks to you before they decide to make your position redundant. This discussion happens as soon as possible. The employer discusses with you, among other things, why your position might be abolished, and how to avoid a retrenchment occurring. If, after this discussion, a retrenchment cannot be avoided, then the employer discusses with you how to reduce the impact of the retrenchment on you.”
[18] Further, Mr Rauf identified that the report of Ms Gientzotis is consistent with and reflects the recommendations of two earlier reports prepared for the Macquarie Legal Centre in 2009 and 2016, i.e., the creation of new management roles to lighten the workload on the senior role.
[19] Mr Rauf submitted that these changes do not amount to a significant change to the General Manager’s role being performed by Ms Girdler but, put simply, changes in some of the functions and responsibilities being carved out of the General Manager’s key responsibilities into a new role, whilst giving the General Manager’s salary a 20% increase and a new title. Ms Gientzotis agreed that the key responsibilities and functions of the new Director role were the same as Ms Girdler was performing in her role as Manager:
“PN1296
Mr Rauf – If we go over the page to key responsibilities, each of those things were functions or key responsibilities which Ms Girdler had been undertaking in her role as manger? ---Those key responsibilities, yes, one could say that.”
[20] Mr Rauf highlighted that Ms Gientzotis confirmed under cross examination that she had provided no advice to the Committee of Management in relation to Ms Gientzotis’s termination in relation to her contract or the Award.
[21] Mr Rauf identified that Ms Girdler was not even shortlisted for the role of Director, after 18 years of unblemished and commendable service as the Manager of Macquarie Legal Centre. Ms Girlder also applied for the HR Manager’s position but was not offered an interview or even given the courtesy of a reply.
[22] Mr Stanton submitted that, whilst the WSCLC did not press its section 389 objection, Ms Girdler’s role no longer exists due to the creation of a hierarchical delegation. Further, that the position of Director occupies a position which is elevated in both status and salary when compared to the previous structure. This scenario is created by the 20% increase in salary and the creation of two new positions which report directly to the Director.
[23] Mr Stanton submitted that Ms Girdler accepted that these new roles were “newly created roles”. As a result, Ms Girdler knew and accepted that she was applying for a distinct new position.
“PN278
Mr Stanton – And you understood by doing that that you were applying for a distinct new position, didn’t you? ---Yes, I did.
PN 279
Your real position in these proceedings is that you are the person best placed to occupy that new position. That’s your position, isn’t it? ---Yes, it is.
PN280
And your position is that no other person should be considered for that role? ---I believe I am best in that position.
PN281
Is that your position, that you say no other person should be considered for that new role? ---I was willing to compete for the position in a process, but I still maintain my position ---”
[24] Mr Stanton argued that Ms Girdler was happy to compete in the open marketplace for employment in one of the new roles, that she applied for both the Director and Human Resources Manager roles and was unsuccessful.
[25] Mr Stanton referenced a FWC Full Bench decision in Mackay Taxi Holdings v Wilson 240 IR 409 where it was held:
“[33] Thus, a large body of the tasks that comprised the Respondent’s job continued to be performed. We note here that the Commissioner referred to the new role being “70%” of the Respondent’s previous role. We do not know where this claim is found in the material before the Commissioner, though it is broadly reflective (regardless) of the state of the evidence.
[34] The job, however, was not the same job. The requirement for a formal qualification was not added to a job as if a mere administrative initiative. The qualifications required were reflective of new and higher level duties which were to be carried out by an appropriately qualified bookkeeper. Given the manner in which the matter proceeded, the Commissioner was not in a position to set aside the Appellant’s evidence in this regard.
[35] The job was therefore a new job, despite the fact that it incorporated many of the former tasks performed by the Respondent.
[36] Contrary to the Commissioner’s findings, we think the changes to the position referred to above are operational changes. That is, they are changes that give effect to a change in the operational focus of a position to the benefit or advantage of the employer (be it to meet governance requirements or to improve efficiency).
[37] Whether the original duties or tasks continue to be required to be performed is not necessarily relevant: it is the operationally-driven changes to the position that need to be made out.”
[26] Mr Stanton submitted that, similarly, the charges that are being implemented at WSCLC are operationally driven changes. Mr Stanton acknowledged that WSCLC may have been guilty of a procedural defect by not advising Ms Girdler of the likely outcome of the restructure at an earlier date, but such a defect is only relevant in relation to the appropriate remedy – not whether the employer had a valid reason for the termination.
Consideration
s.387(a) Valid reason
[27] In Selvachandran v Peteron Plastics Pty Ltd 1, Northrop J held that a valid reason is one which is:
“In its context in s.170DE(1), the adjective “valid” should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s.170DE(1). At the same time the reasons must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘be applied in a practical, common sense way to ensure that the employer and employee are treated fairly.”
[28] There is no conflict between the parties that Ms Girdler’s termination is not based on her professional capacity or conduct. WSCLC submitted that the reason for Ms Girdler’s termination was due to the operational changes that have been implemented as a result of the restructure which created a management hierarchy. I am not satisfied that WSCLC can logically sustain this proposition. The role of General Manager at WSCLC included ALL of the key responsibilities and functions of the new role of Director. The only changes from Ms Girdler’s existing position were that the salary was increased and certain functions were REMOVED from the role to create the roles of HR Manager and Community Programs Manager. Unlike the situation in Mackay Taxis 2, there were no additional responsibilities or qualifications required for the role. What was changed were the prerequisite requirements for the role, which I believe, were deliberately created to be marginally higher than what Ms Girdler possessed in relation to the size of the budget and the number of staff that she had previously supervised.
[29] As a result, I am of the view that WSCLC deliberately created a situation where Ms Girdler would be unsuccessful in winning the role of Director. Unbelievably, Ms Girdler did not make it past the first stage in the appointment process. The actions of WSCLC were fanciful and capricious.
[30] I find that WSCLC did not have a valid reason to terminate Ms Girdler. I have taken this into account.
s.387(b) Notified of the reason
[31] Ms Girdler was notified that her position had been made redundant on 24 February 2017. I have taken this into account.
s.387(c) Opportunity to respond
[32] Ms Girdler was not provided with an appropriate opportunity to respond. Ms Girdler was presented with a “fait accompli” on 24 February 2017. The actions of WSCLC were in breach of the procedural fairness requirements of the Act and in breach of Ms Girdler’s contract of employment. I have taken this into account.
s.387(d) Refusal to allow a support person
[33] Ms Girdler was not advised that the meeting of February 24 2017, was to be a termination meeting or that she might like to bring a support person. Ms Girdler was surprised at the meeting with the letter terminating her employment. I have taken this into account.
s.387(e) Unsatisfactory performance
[34] Ms Girdler’s termination was not terminated for unsatisfactory performance. I have taken this into account.
s.387(f) Size of enterprise
[35] WSCLC is a community legal centre with 63 employees. The Commission would expect a legal organisation of this size to have sufficient resources to understand the legal ramifications of its decisions. I have taken this into account.
s.387(g) HR expertise
[36] Ms Girdler formerly performed the HR role for WSCLC. However, I note that WSCLC had engaged Ms Gientzotis as an organisational consultant. I have taken this into account.
s.387(h) Any other relevant matter
[37] Ms Girdler had an outstanding and unblemished 18 year career as the Manager of both the Macquarie Legal Centre and the WSCLC. Ms Girdler was well respected within the Western Sydney community and amongst her peers. Ms Girdler provided very complimentary and supportive references from the Dean of the University of Western Sydney School of Law, the CEO of the National Community Legal Centres, the Centre Co-ordinator for the Illawarra Legal Centre, the Senior Solicitor, Civil Section, Legal Aid, NSW and the Executive of the Tenants Union for the Tenants Advice and Advocacy Program. I have taken this into account.
[38] I accept that Ms Girdler had a less than optimal relationship with the Committee of Management. Whilst it is difficult to be overly critical of citizens who volunteer their time to participate in community organisations, where possible, such volunteers should act in a manner which is conducive and compatible to best practice of a company director. Based on the evidence before the Commission, the Committee of Management at WSCLC does not appear to have met this desired benchmark. I have taken this into account.
Conclusion
[39] I have taken into account all of the submissions and evidence that have been submitted by the parties. The fact that an issue has not been mentioned in this decision does not mean that is has not been taken into account.
[40] I have previously found that WSCLC did not have a valid reason to terminate Ms Girdler. In Parmalat Food Products Pty Ltd v Wililo 3, a Full Bench said:
“[24]…The existence of a valid reason is a very important consideration in any unfair dismissal case. The absence of a valid reason will almost invariably render the termination unfair…”
[41] I do not accept the argument that Ms Girdler’s role no longer exists due to the existence of a hierarchical structure, particularly when all that has occurred is that the former senior position of Manager has had 30% of its functions taken away to create an additional two positions. Renaming the role and increasing its remuneration whilst reducing its operational requirements should have resulted in Ms Girdler being congratulated for carrying the organisation since the amalgamation – not a decision to terminate her employment.
[42] I find that Ms Girdler was not provided with the requisite procedural fairness during the termination process. Ms Girdler was not consulted about her redundancy, was not given an opportunity to be redeployed and was not given an appropriate amount of time to respond to her termination. Nor did WSCLC give itself time or the opportunity to consider any response from Ms Girdler.
[43] Ms Girdler did not receive her statutory entitlement to a “fair go”. Based on the obiter in Parmalat, Ms Girdler’s termination was harsh and unfair.
Remedy
Statutory Provisions
[44] The relevant provisions of the Act in relation to remedy are:
“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.”
“391 Remedy—reinstatement etc.
Reinstatement
(1) An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:
(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or
(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.
(1A) If:
(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and
(b) that position, or an equivalent position, is a position with an associated entity of the employer;
the order under subsection (1) may be an order to the associated entity to:
(c) appoint the person to the position in which the person was employed immediately before the dismissal; or
(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.
Order to maintain continuity
(2) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to maintain the following:
(a) the continuity of the person’s employment;
(b) the period of the person’s continuous service with the employer, or (if subsection (1A) applies) the associated entity.
Order to restore lost pay
(3) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.
(4) In determining an amount for the purposes of an order under subsection (3), the FWC must take into account:
(a) 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 reinstatement; and
(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.”
“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.”
Submissions
[45] I have taken into account all of the submissions of the parties in relation to remedy.
[46] Mr Rauf submitted that Ms Girdler should not be punished for, or made the scapegoat of, the flagrant breaches by WSCLC of their obligations under the Act, the Award or Ms Girdler’s contract. Further, Ms Girdler’s health has suffered as a result of her termination and she has been unsuccessful in finding alternative employment. Mr Rauf advised that Ms Girdler is 65 years of age and has an on-going passion to return to work in the community legal services field.
[47] Mr Rauf argued that Ms Girdler should not be penalised simply because no position currently exists at WSCLC. Mr Rauf submitted that this scenario is a problem that has been created by WSCLC own conduct and its failure to comply with its obligations.
[48] Mr Rauf highlighted that no member of the WSCLC Committee of Management has even attended the Commission to witness the proceedings, let alone give evidence. As a result, the only evidence before the Commission from anyone directly associated with WSCLC is that of Ms Girdler. There is no evidence before the Commission from any member of the Committee of Management to say that a working relationship could not be restored with Ms Girdler.
[49] Mr Stanton opposed the reinstatement of Ms Girdler on the basis that her former position no longer exists. Also, based on the evidence in the proceedings, Mr Stanton argued that there is clearly a real difficulty in the working relationship between Ms Girdler and the Committee of Management.
[50] Mr Stanton submitted that any error on the part of WSCLC extends only as far as a procedural defect. Mr Stanton argued that such a defect is appropriately remedied by the payment of compensation.
[51] Further, Mr Stanton argued that if Ms Girdler had remained in her role as Manager of WSCLC, up to and including the recruitment process for the role of Director, Ms Girdler’s employment would have continued up until the date that Ms Girdler was advised of her unsuccessful application, that being May 5, 2017.
Consideration
[52] The primary remedy under the Act is reinstatement. In Holcim Australia v Serafina it was held that the Commission must determine the appropriateness of reinstatement before considering any other remedy.
[53] In Perkins v Grace Worldwide (Aust) Pty Ltd 4, the Full Court of the Industrial Court said:
“... we accept that the question whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is impracticable, provided that such loss of trust and confidence is soundly and rationally based.
At the same time it must be recognised that, where an employer, or a senior officer of an employer, accuses an employee of wrongdoing justifying the summary termination of the employee’s employment, the accuser will often be reluctant to shift from the view that such wrongdoing has occurred, irrespective of the Court’s finding on that question in the resolution of an application under Division 3 of Part VIA of the Act.
If the court were to adopt to a general attitude that such a reluctance destroyed the relationship of trust and confidence between employer and employee, and so made reinstatement impracticable, an employee who was terminated after an accusation of wrongdoing but later succeeded in an application under the Division would be denied access to the primary remedy provided by the legislation. Compensation, which is subject to a statutory limit, would be the only available remedy. Consequently, it is important that the Court carefully scrutinise any claim by an employer that reinstatement is impracticable because of loss of confidence in the employee.
Each case must be decided on its own merits.”
Conclusion
[54] Ms Girdler is a highly experienced, well credentialed and long serving employee of WSCLC and its predecessors. Ms Girdler has had the courage of her convictions to seek an appropriate remedy for her unfair dismissal before the Commission. On the other hand, members of the WSCLC are conspicuous, in these proceedings, by their absence. It would appear that the Committee of Management of WSCLC was of the view that they could simply outsource their involvement in these proceedings to a consultant. As a result, no first hand evidence was submitted from WSCLC in relation to the Committee of Management’s relationship with Ms Girdler or the decision making processes that were undertaken. As a result, the only direct evidence before the Commission is the evidence of Ms Girdler.
[55] Reinstatement is the primary remedy under the Act and the most appropriate remedy in this circumstance. I can see no reason why Ms Girdler will not be able to perform the role of Director, a role which is significantly less arduous and stressful than her role prior to the restructure.
[56] It is not unusual, in fact it is healthy, for some tension to exist between the full time senior manager of an organisation and the organisation’s Committee of Management. I am in no doubt that Ms Girdler can re-establish her good working relationship with the staff of WSCLC and re-create an appropriate relationship with the WSCLC Committee of Management.
[57] If not for the deliberate and inappropriate actions of the Committee of Management, Ms Girdler would have been appointed to the role of Director, the functions of which she was already performing. The only changes to Ms Girdler’s former role have been the increase in remuneration and the removal of the HR function. Ms Girdler was performing every component of the new Director role but without the title. It was her job.
[58] I hereby Order that Ms Girdler be reinstated to the role of Director.
[59] I also Order, in accordance with section 391 of the Act that Ms Girdler maintain the continuity of her employment and that she be compensated for all remuneration which has been lost, at her appointed rate, less any money paid to Ms Girdler by way of notice and redundancy.
[60] I so Order.
COMMISSIONER
1 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371.
2 Mackay Taxi Holdings v Wilson [2014] 240 IR 409.
3 Paramalat Food Products Pty Ltd v Wililo [2011] FWAFB 116.
4 [1997] IRCA 15; 72 IR 186.
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