Marie Vidaic v Market St Holdings Pty Limited

[2012] FWA 9311

[2012] FWA 9311

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Application for unfair dismissal remedy

Marie Vidaic
v
Market St Holdings Pty Limited
(U2012/10514)

COMMISSIONER BULL SYDNEY, 2 NOVEMBER 2012

Termination of employment - unfair dismissal, failure to comply with consultation obligations under modern award, whether genuine redundancy, whether small business code applies to redundancies.

[1] Ms Marie Vidaic (the Applicant) commenced employment with Market St Holdings Pty Ltd (the Respondent) as a full-time Administration Officer on 7 March 2011. On 19 September 2011, her employment was changed to part-time. On 4 June 2012, the Applicant was advised that her position had been made redundant and she received two weeks pay in lieu of notice.

[2] On 13 June 2012, the Applicant made an application under s.394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy alleging that her dismissal by the Respondent was harsh, unjust or unreasonable.

[3] The application was listed for telephone conciliation on 3 July 2012, but this did not proceed as the Applicant could not participate due to a communication issue.

[4] On 6 July 2012, the Respondent filed an objection to the unfair dismissal application, on the grounds that the dismissal was a genuine redundancy. The Respondent also submits that it is covered by the Small Business Fair Dismissal Code (the Code).

[5] The Applicant was represented by Mr Colquhoun, and the Respondent was represented by its Director, Ms Seco.

Relevant statutory provisions

[6] Section 394(1) of the FW Act provides that a person who has been dismissed may apply to Fair Work Australia for an Order under Division 4 of the FW Act granting a remedy for unfair dismissal.

[7] Section 385 of the Act provides as follows:

S.385. A person has been unfairly dismissed if FWA is satisfied that:

(a) the person has been dismissed;

(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.

(My emphasis)

[8] Section 396 of the FW Act requires that before considering the merits of an application for an unfair dismissal remedy, FWA must decide a number of threshold issues.

S.396 Initial matters to be considered before merits

FWA must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy.

(My emphasis)

[9] One effect of s.396 of the FW Act is, that if a dismissal is the result of a genuine redundancy as put by the Respondent, the Tribunal does not need to determine whether the dismissal was harsh, unjust or unreasonable (see UES (Int’L) Pty Ltd v L Harvey) 1 (UES).

Genuine redundancy

[10] Section 389 of the FW Act sets out the meaning of ‘genuine redundancy’ which is not restricted to whether an employee’s job is no longer required.

389(1) A person’s dismissal was a case of genuine redundancy if:

(a) the employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and

(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

389(2) A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:

(a) the employer’s enterprise; or

(b) the enterprise or an associated entity of the employer

(My emphasis)

[11] The parties submit that the Clerks Private Sector Award 2010 (the Clerks Award) applies to the Applicant. Like other modern awards, it prescribes employer obligations to consult employees who the employer has decided to terminate due to redundancy. These requirements are found at clause 8 of the Clerks Award:

8 CONSULTATION REGARDING MAJOR WORKPLACE CHANGE

8.1 Employer to notify

Where an employer has made a definite decision to introduce major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer must notify the employees who may be affected by the proposed changes and their representatives, if any.

Significant effects include termination of employment, major changes in composition, operation or size of the employer’s workforce or in the skills required; the elimination or diminution of job opportunities, promotion opportunities or job tenure; the alteration of hours of work; the need for retraining or transfer of employees to other work or locations; and the restructuring of jobs. Provided that where this award makes provision for alteration of any of these matters an alteration is deemed not to have significant effect.

8.2 Employer to discuss change

(a) The employer must discuss with the employees affected and their representative, if any, the introduction of the changes referred to in clause 8.1, effects the changes are likely to have on employees and measures to avert or mitigate the adverse effects of such changes on employees and must give prompt consideration to matters raised by the employees and/or their representatives in relation to the changes.

(b) The discussions must commence as early as practicable after a definite decision has been made by the employer to make the changes referred to in clause 8.1.

For the purposes of such discussion, the employer must provide in writing to the employees concerned and their representatives, if any, all relevant information about the changes including the nature of the changes proposed, the expected effects of the changes on employees and any other matters likely to affect employees provided that no employer is required to disclose confidential information the disclosure of which would be contrary to the employer’s interests.

[12] While the Clerks Award, via the National Employment Standards, excludes small business employers from any obligation to make redundancy payments, there are no exemptions for small business employers from the obligation to consult employees who are to be made redundant.

[13] It is submitted by the Respondent that prior to the Applicant’s termination, it made a definite decision which resulted in the termination of employment of the Applicant. Ms Seco, on behalf of the Respondent conceded that whilst she consulted with the Applicant, she did not comply with all of the consultation obligations under clause 8 of the Clerks Award (PN83). Those obligations being to:

• discuss with the Applicant the changes and their effect;



• discuss with the Applicant measures to avert or mitigate the adverse effects of such changes; and



• provide in writing to the Applicant all relevant information about the changes, including the nature of the changes proposed, the expected effects of the changes on the Applicant and any other matters likely to affect the Applicant prior to making the decision to terminate her employment.

[14] Even if the Respondent no longer required the Applicant’s job to be performed because of changes in its operational requirements resulting from the loss of a significant contract, the Applicant’s dismissal does not meet the definition of genuine redundancy as per s.389 of the FW Act.

[15] In UES 2the majority of the Full Bench found that a dismissal was not a case of genuine redundancy within the meaning of s.389 because the company had not consulted the employee about the redundancy in accordance with its obligation in the applicable modern award.

[16] I add though, that the likelihood of small business employers complying with the extensive oral and written consultative requirements found in modern awards in regard to redundancy including the requirement to provide in writing; all relevant information about the changes including the nature of the changes proposed, the expected effects of the changes on employees and any other matters likely to affect employees would be low.

Small Business Fair Dismissal Code (the Code)

[17] In addition to arguing that the dismissal meets the genuine redundancy requirements under s.389 (a proposition which I have rejected), the Respondent contends that it has complied with the Codein undertaking the dismissal.

[18] The Respondent submitted that it had followed the Small Business Fair Dismissal Code Checklist; an Australian Government publication which was updated on 1 January 2011 and attached a copy of the Code and Checklist to their outline of submissions.

[19] As referred to above, ss.385 and 396 provide that where the employer is a small business employer, compliance or otherwise with the Code is a relevant factor in determining an unfair dismissal claim. The Code was declared on 24 June 2009, pursuant to s.388(1) of the FW Act and came into operation on 1 July 2009. There is no dispute that the Respondent is a small business employer, in that it employs less than 15 employees (s.23 of the FW Act).

[20] While the introduction to the Code makes mention of redundancies, the Code itself does not. This Tribunal has held previously that the Code has no application to a dismissal based on the grounds of redundancy (see Kristina Iannello v Motor Solutions Australia Pty Ltd).³

[21] Consistent with existing Tribunal authority, I find that the Code has no application in this case. However, it is understandable that the Respondent would have concluded that the Code had application based on the manner in which the Australian Government publication makes reference to redundancy in its publication (PN67).

[22] As the Code has no application and the dismissal is not one of ‘genuine redundancy’ as per s.389 of the FW Act, the claim must be treated the same as any other unfair dismissal application, and the matters in s.387 must be considered.

Criteria for considering harshness etc

[23] Section 387 of the Act sets out the factors the Tribunal must take into account in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable:

(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 FWA considers relevant.

(a) Whether there was a valid reason related to capacity or conduct for the dismissal

[24] In this matter the Respondent no longer required the Applicant’s job to be performed by anyone because of changes in the operational requirements of the enterprise. However, I have found the dismissal was not a genuine redundancy within the meaning of s.389 of the FW Act, because of the Respondent’s failure to comply with its obligation under clause 8 of the Clerks Award to consult about the redundancy.

[25] In UES 4the Full Bench examined the application of s.387(a) and the majority held that a termination through redundancy was not relevant to s.387(a):

‘(26) We have concluded, however, that s.387(a) of the FW Act regarding the matter of whether there was a valid reason for the dismissal related to the person’s capacity or conduct does not go to the process for selecting the person for redundancy.’

[26] On the evidence, the Applicant argues the Respondent was dismissed because the Respondent no longer required her job to be undertaken due to the loss of a relevant and significant contract. While there was evidence of concerns with the Applicant’s performance, the reasons for the dismissal were not directly related to the Applicant’s capacity or conduct. Accordingly, there was not a valid reason as per s.387(a) for the dismissal, related to capacity or conduct. As such, this is not a factor of relevance with respect to whether the Applicant’s dismissal was harsh, unjust or unreasonable.

(b) Whether the person was notified of that reason

[27] The Applicant was advised that her dismissal was due to lack of work. This was confirmed in the termination letter given to the Applicant on 4 June 2012, stating that insufficient work existed to maintain the current workforce. The termination letter made no reference to the Applicant’s performance or conduct.

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

[28] This matter deals with procedural fairness in respect of a reason for dismissal, related to an Applicant’s capacity or conduct. The Applicant’s employment was not terminated for reasons related to her capacity or conduct.

(d) Any unreasonable refusal to allow the person to have a support person present to assist at any discussions relating to dismissal

[29] While no opportunity was put to the Applicant to have a support person present during her dismissal, there was no evidence of a request or refusal by the Respondent to allow the Applicant to have a support person present to assist at the meeting.

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

[30] The dismissal was not said to relate to unsatisfactory performance by the Applicant.

(f) and (g) The size of the enterprise and human resource management capacity

[31] The Applicant was a small business employer without dedicated human resource management specialists or expertise. This no doubt impacted on the inadequate consultation process followed in effecting the dismissal as required by the Clerks Award.

(h) Any other relevant matters

[32] I have considered all of the evidence and set out below what I believe to be also relevant to the Applicant’s claim.

Evidence of the Applicant

[33] Evidence was given by the Applicant, Ms Vidaic, in addition to her written submissions.

[34] Ms Vidaic told the Tribunal that she commenced with the Respondent on 7 March 2011 as a full time Administration officer and moved to a part-time role on 19 September 2011, working 30 hours per week but with the same workload she had while working full time.

[35] The Applicant’s evidence was that up until she took annual leave, which commenced on 14 May 2012, she experienced a heavy work load. During her employment, the Applicant undertook miscellaneous administrative duties and some cleaning tasks. In cross-examination, Ms Vidaic agreed her work could be described as low level administrative work.

[36] While working at the reception she answered telephone calls for Tarrants Accountants and Business Advisors (Tarrants) whom the Respondent had a contract with to provide administrative services. This was in addition to answering telephone calls for her employer; Market St Holdings.

[37] Ms Vidaic stated that she was never given a chance to take a lunch break and took her lunch at the reception desk. She was expected to work back without additional pay if her work was not completed.

[38] On 27 January 2012, Mr Ross Tarrant, the Principal of Tarrants, asked her to clean his private residence, which she accepted, as she didn’t want to lose her position at Market St Holdings. She was instructed by Ms Seco, the Respondent’s Director, to state in her time sheets that the work was performed for Tarrants as they were a Market St Holdings client.

[39] Ms Vidaic stated that the workplace was busy and stressful. She believed that Mr Tarrant had control over Market St Holdings.

[40] On 1 February 2012, Ms Vidaic contacted the Australian Taxation Office (ATO) to ascertain what, if any, superannuation guarantee contributions had been made on her behalf by Market St Holdings. She was told only one superannuation payment had been made by her employer which concerned her. She did not speak to Ms Seco, as she feared she may lose her job. On 13 March 2012, the ATO told her that they would take action on her behalf.

[41] On 19 March 2012, Ms Vidaic received an email from Ms Seco stating that she had received complaints from other staff about her not starting on time and leaving early.

[42] The email from Ms Seco also stated that if Ms Vidaic had a problem with getting to work on time or staying until finish time, her hours could be reduced to accommodate her needs.

[43] Ms Vidaic responded to the email in a letter dated 27 March 2012, and pointed out amongst other things that she left work early to undertake domestic cleaning at Mr Tarrant’s private residence.

[44] On 24 May 2012, Ms Seco received correspondence from the ATO advising that they were in the process of contacting her employer to establish whether it had met its superannuation guarantee obligations.

[45] Ms Vidaic returned from annual leave on Monday 4 June 2012 at her normal starting time of 10:30 am, knowing that the ATO would have been in contact with the Respondent over her superannuation entitlements. On arriving at the office Ms Vidaic told Ms Seco that during her annual leave she underwent surgery and needed to take another week off. Ms Seco told her that regrettably her position had become redundant due to lack of work.

[46] The Applicant’s evidence was that despite her redundancy she understood from others that the Respondent had recently put on new staff.

[47] Ms Vidaic was of the view that had she not raised the superannuation complaint with the ATO she would be still employed. She believed her letter of termination dated Sunday 3 June 2012, was falsely dated and was actually written on Monday 4 June 2012 prior to her arrival at work when the Respondent received notice from the ATO that a superannuation audit was to be undertaken.

Applicant’s submissions

[48] Mr Colquhoun, on behalf of the Applicant, submitted that Market St Holdings was being controlled by Mr Tarrant from Tarrants Accountants and Business Advisors (Tarrants) and that Tarrants and the Respondent were one company (PN126).

[49] A great deal of the Applicant’s submissions concerned the Applicant’s overtime payments, superannuation, leave loading and Mr Tarrant’s personal wealth which did not go to the central question as to whether, as was alleged by the Applicant, the redundancy was a contrived reason for the dismissal, with the actual reason being Ms Vidaic’s superannuation complaint to the ATO.

[50] As far as the Applicant’s argument was relevant, it can be summarised as follows:

i. Following a complaint to the ATO by the Applicant regarding insufficient/non payment of her superannuation entitlements, the ATO telephoned the Respondent on 24 May 2012 and left a message for Ms Seco to return the call.

ii. The ATO then wrote to the Respondent in a letter dated 30 May 2012, advising that a superannuation audit was to be conducted. The Respondent’s mail receipt date of 4 June 2012 for the ATO correspondence is correct. However, the Respondent was aware of this correspondence on the morning of 4 June 2012, having checked the mail sometime between 08:30 and 10:30am. On becoming aware of the ATO audit, the Respondent had also ascertained that the audit arose from a complaint made by Ms Vidaic. As a result, she was terminated the same day at 10:30am on the ground of redundancy.

iii. The letter of termination written by Ms Seco dated Sunday 3 June 2012, and given to the Applicant on 4 June 2012, was not written until the morning of 4 June 2012, after the ATO letter was received. This was done in collaboration with Mr Tarrant and then falsely dated by Ms Seco as 3 June 2012.

iv. A letter dated 1 May 2012 from Tarrants, signed by Mr Tarrant, advising it no longer required the Respondent to undertake its administrative needs and complaining of the services provided by the Applicant and terminating the administrative services contract, was written by Mr Tarrant after the Applicant’s termination, due to the Applicant’s complaint to the ATO over superannuation payments (PN204).

v. Both Ms Seco, on behalf of the Respondent, and Mr Tarrant, participated in creating fraudulent documents to create a false picture of redundancy when the dismissal was due to the ATO complaint filed by the Applicant.

Respondent’s evidence

Ms Seco

[51] The Respondent’s Director; Ms Seco, gave evidence and she called Mr Tarrant from Tarrants Accounting and Business Advisors as a witness.

[52] Ms Seco stated that the Respondent’s business comprised of two arms:

i. Financial services to the general public (which was losing clients); and

ii. Provision of administrative services to Tarrants Accountants and Business Advisors (contract cancelled).

[53] The provision of administrative services to Tarrants commenced in August 2010 and had been scaled down, until finally cancelled in May 2012. Ms Seco previously worked for Mr Tarrant between 2003 and 2010.

[54] The course of events leading to the Applicant’s redundancy was explained in the Respondent’s written submissions and evidence, which I summarise below.

[55] On 26 July 2010, Tarrants accepted an offer from the Respondent to provide administration support for its business. The Respondent was to supply and be responsible for the administrative staff who undertook this work.

[56] On 7 September 2011, there was a variation to the contract with Tarrants stating that due to a loss of client work they no longer required a position of Administration Manager. The internal accounting was to be taken back and performed by Tarrants. A view was expressed that the staff provided to undertake Tarrants work did not have enough work. Mr Tarrant in his correspondence requested that the hours worked by the Respondent’s staff allocated to Tarrants be reduced to 65% from 30 September 2011. The Applicant’s hours were reduced from full-time to part-time as a result of this contract variation.

[57] On 22 December 2011, Mr Tarrant wrote to the Respondent and advised of a further variation to the contract; stating that given Tarrants’ current client base and workload, the level of administrative support provided by the Respondent was in excess of Tarrants’ needs and capacity to pay. The cost of the service provided by the Respondent to Tarrants was reduced from $6,500 to $4,000 per week.

[58] Mr Tarrant also commented that he was not particularly happy with the performance of the staff being provided by the Respondent, but with the reduced cost was happy for the number of administrative staff provided to Tarrants to be reduced.

[59] On the 28 January 2012, Tarrants wrote to the Respondent stating that Mr Tarrant had spoken to the Applicant and offered her cleaning duties of no more than six hours per week at his rental property which she was happy to undertake. The account for this work was to be sent to Tarrants who were then to bill Mr Tarrant personally.

[60] On 1 May 2012, Mr Tarrant wrote to the Respondent, cancelling the contract for the Respondent to provide administration support. The reasons given were that Tarrants had lost confidence in the ability of the Respondent to deliver the services in a professional manner. Mr Tarrant listed a number of complaints about the performance of Ms Vidaic and one other administrative employee of the Respondent.

[61] Copies of all the correspondence discussed above were tendered in evidence.

[62] The loss of the Tarrant contract was commercially devastating and required the Respondent to take cost cutting measures, such as scaling back software licences and overall expenditure (PN934). There was no work for the Applicant and consideration was given to redeploying her, but a suitable position was not available. The other parts of the business required experience and qualifications relevant to the provision of financial services which Ms Vidaic did not have.

[63] Ms Seco disputed that the Applicant had an onerous workload (PN937) and stated that the work performed by Ms Vidaic did not relate to the Respondent’s core business.

[64] Ms Seco told the Tribunal that Market St Holdings did not have enough work for the existing staff and further redundancies may be required.

[65] Ms Seco was adamant that when the decision to make the Applicant redundant was finally made (3 June 2012), she had not seen the correspondence from the ATO dated 30 May 2012, which was received on Monday 4 June 2012, and in any event she did not know who had complained to the ATO at that time. The ATO correspondence advised of a forthcoming audit and stated that a complaint had been received regarding superannuation but did not name the complainant and when she subsequently spoke to the ATO on 8 June 2012 they would not identify the name of the complainant (PN99).

[66] Ms Seco’s submissions included a copy of a letter to the Applicant dated 3 April 2012 in response to the Applicant’s letter of 27 March 2012. In Ms Seco’s correspondence she referred to a number of performance issues, including complaints from other staff that Ms Vidaic was slow in her work, not completing allotted tasks, not knowing how to perform all tasks and referred to previous verbal warnings given.

Mr Tarrant

[67] Mr Ross Tarrant is the principal of Tarrants Accountants and Business Advisers. He tendered a witness statement and gave evidence in this matter. Mr Tarrant holds a financial planning licence which is under suspension pending an ASIC investigation. Tarrants financial planning services ceased when Mr Tarrant “...found myself embroiled in the biggest fraud in Australia’s superannuation history” (PN980). Tarrants Financial Consultants went into voluntary liquidation on 6 August 2010. Tarrants financial planning services clients were given the opportunity to move to the Respondent, although Mr Tarrant has no arrangement with or role to play with the Respondent (PN 984).

[68] Mr Tarrant told the Tribunal that he had no ownership, interest or control over the operations of the Respondent. The Respondent subleases office space from Tarrants and in July 2010 he reached agreement with the Respondent to provide administration support services to Tarrants.

[69] There were a number of variations to the administration contract reducing the services that the Respondent provided due to Tarrants losing clients and its own professional staff undertaking more of this work. The contract was finally cancelled on 1 May 2012.

[70] Mr Tarrant stated in his correspondence of 1 May 2012, that terminated the administrative services contract, that he was not happy with the work performance of the staff allocated to undertake Tarrants’ administrative work and that he had spoken to Ms Seco on a number of occasions regarding this. The specific complaints included the performance of reception staff (Ms Vidaic and Ms Sinclair):

• being incapable of answering more than one call at a time;



• not being at reception and missing incoming calls;



• being unable to raise invoices;



• not getting the small amount of morning mail to Mr Tarrant by 10:30/11:00am;



• inability to cope with client mail outs; and



• Ms Vidaic arriving at work dressed unprofessionally, eating her lunch at reception and using her mobile phone at reception.

[71] Mr Tarrant stated that Tarrants now employ their own receptionist who also performs administrative tasks. The work is now undertaken in a more proficient manner. In addition to having to dispense with the Respondent’s services he had to lay off his father who had been employed for 20 years and daughter due to lack of work (PN 993).

[72] Mr Tarrant confirmed that he did offer the Applicant some domestic cleaning work which he did in an attempt to provide sufficient work for the Respondent to keep her employed. Mr Tarrant stated that the lack of activity at the reception was an embarrassment to the company (PN 1013).

[73] Mr Tarrant denied in cross-examination that he had written his correspondence, dated 1 May 2012, terminating the administration services contract with the Respondent sometime after this date, based on his knowledge that the Applicant had made a superannuation complaint to the ATO against the Respondent.

[74] Mr Tarrant’s evidence contradicted the evidence of Ms Seco in one important aspect. Ms Seco stated that she had no knowledge of the ATO superannuation complaint until the afternoon of 4 June 2012, after the termination of the Applicant. Mr Tarrant stated at PN1156:

‘When did it get brought to your attention that it was an inquiry from the Tax Office? I don’t know which day it was, but it was certainly before Marie’s meeting on the morning when she came in and was sick.’

and at PN1170:

‘Well, I don’t really know when the letter came to my attention. But I do know that when Marie came in the day that she was explaining her injuries to us, it was known to us at that time that Market St was now subject to a Tax Office audit. I am only going off recollection here, but certainly Marie was not a name that was bantered around by Stefanie or I (sic) as we tried to surmise who might have been responsible.’

[75] Ms Seco was asked why Mr Tarrant told the Tribunal on two occasions that he knew about the superannuation complaint prior to Ms Vidaic’s dismissal, Ms Seco’s response was that perhaps he was confused with the dates.

Conclusion

[76] The Applicant’s case rests on the submission that the Respondent together with Mr Tarrant colluded to dismiss the Applicant under the guise of a redundancy due to Ms Vidaic’s complaint to the ATO. To that end, both Ms Seco and Mr Tarrant embarked on a process wherein they created documents and falsified dates on these documents to assist them in this endeavour.

[77] The Applicant submits that the Respondent and Tarrants were one company and Mr Tarrant was the boss (PN 128). The evidence of Ms Vidaic did not make out the Applicant’s submission on this point other than that Mr Tarrant spent time in Ms Seco’s office (PN 552).

[78] The Tribunal is not in a position to conclude that Mr Tarrant ran the business of the Respondent, although the evidence did point to a close relationship between the Respondent and Mr Tarrant. When asked in cross-examination as to the circumstances surrounding Ms Vidaic’s dismissal, Mr Tarrant stated at PN 1115:

‘It certainly had nothing to do with the Tax Office and whether we were dobbed in by Marie to the Tax Office.’

(My emphasis)

[79] In response to a question about the ATO complaint Mr Tarrant stated at PN 1156:

‘Stefanie brought the letter to my attention. And I remember sitting in her office theorising as to who it could be.’

[80] The Applicant’s submissions regarding the falsification of dates on correspondence and creation of a letter to support the termination of the Applicant was not contained in the written submissions filed before the hearing and was only raised for the first time at the hearing.

[81] The Applicant’s case raises serious allegations and requires the Tribunal to find that Ms Seco and Mr Tarrant, while under oath, perjured themselves before the Tribunal.

[82] The cross-examination of Mr Tarrant and Ms Seco did not elicit any suggestion that their evidence was less than truthful. Mr Tarrant gave most of his evidence without prompting and was free and frank with admissions of his poor business decisions that had seriously damaged his business and reputation, forcing his financial services company into liquidation.

[83] The termination of the Tarrants contract and Mr Tarrant’s criticism of the Applicant in his 1 May 2012 correspondence was not brought to Ms Vidaic’s attention and she was allowed to continue with her normal duties for another fortnight and then proceed on annual leave. It wasn’t until her return from annual leave on 4 June 2012 that Ms Seco advised that her position was redundant and that there were no other suitable positions within the Respondent’s business.

[84] It is put on behalf of the Applicant, that had Ms Seco actually received the 1 May 2012 letter from Mr Tarrant on that date, advising that the provision of administrative services was no longer needed due in part to the Applicant’s unsatisfactory performance. Ms Seco would have immediately approached Ms Vidaic and raised the termination of the contract and the complaint regarding her performance.

[85] Ms Seco’s response to these allegations was that all the issues raised by Mr Tarrant’s correspondence of 1 May 2012 concerning the Applicant’s performance had been raised before with the Applicant and there was no point in raising them again.

[86] Ms Seco’s evidence was that she was reluctant to terminate the Applicant as she was a single mother and had hoped additional work could found from other clients of the Respondent that would allow Ms Vidaic to remain employed. Ms Seco stated that while the Applicant was on annual leave she reluctantly decided that she could no longer keep the Applicant employed and wrote the letter of notification of redundancy on Sunday 3 May 2012, the day before the Applicant returned from leave. Ms Seco’s evidence was that it was not unusual for her to attend to staffing matters on weekends.

[87] I accept the submission on behalf of the Applicant, that it is unusual for an employer to receive a complaint about an employee’s work performance which also terminates an important contract, due in part to that poor performance and not raise it immediately with the employee. In this case it was not even raised while giving Ms Vidaic her notice of redundancy. However, Ms Seco provided to the Tribunal her reasons for not raising the issue with the Applicant at the time, being that she doesn’t share the financial burdens of her business with staff and she had raised Ms Vidaic’s performance issues with her previously.

[88] The Respondent’s letter to Ms Vidaic dated 3 April 2012, is a clear demonstration that the performance issues raised by Mr Tarrant had been brought to Ms Vidaic’s attention previously. This correspondence raised performance issues of Ms Vidaic including :

• leaving early without providing notice;



• other staff complaining about her arriving late and leaving early;



• non completion of tasks, not knowing how to complete invoices; and



• complaints from Tarrants regarding the volume of errors made.

[89] Mr Colquhoun did not cross-examine Ms Seco or Mr Tarrant on the contents of this letter to any degree.

[90] As such I am not persuaded to accept the Applicant’s argument that the letter of 1 May 2012, written by Mr Tarrant, was a concoction deliberately entered into by the Respondent and Mr Tarrant to terminate the Applicant under the pretext of a lack of work following the loss of the administrative services contract, when in fact it was because of the Applicant’s complaint to the ATO.

[91] To accept such a submission would require bringing into question the correspondence from Mr Tarrant to the Respondent dated 7 September 2011 and 22 December 2011, concerning the gradual scaling back of the service based on the cost of the service and loss of clients, which I am not prepared to do.

[92] The Applicant also relies on her termination occurring on the same day the letter from the ATO was received by the Respondent, advising of an audit being conducted as proof that her termination was not a genuine redundancy, in response to her complaint to the ATO. Ms Seco’s evidence was that she was unaware of the correspondence from the tax office until later that afternoon after the termination took effect, and that the decision to make the Applicant redundant was made the day before, hence the date of the correspondence being 3 June 2012.

[93] As stated above, when put to Ms Seco as to why Mr Tarrant had stated in evidence that he was aware of the ATO complaint before she was terminated, Ms Seco stated that he must be confused with his dates.

[94] The conflict on this point between Ms Seco and Mr Tarrant is difficult to resolve. However, Mr Tarrant’s and Ms Seco’s evidence was consistent on the issue that neither of them knew at the time of dismissal that Ms Vidaic had made the superannuation complaint to the ATO.

[95] Much of the submission of the Applicant is without any corroboration, without any supporting witnesses, without any advice etc from the ATO confirming that the ATO had informed the Respondent who had made the superannuation complaint. As such, the Tribunal is asked to make a number of adverse findings against the Respondent without any supporting or corroborating evidence.

[96] I do not accept, as put by the Applicant, that Mr Tarrant’s letter of 1 May 2012, which cancelled the contract with the Respondent, was fabricated and written after the termination of the Applicant on 4 June 2012, in an attempt to camouflage a dismissal based on the Applicant’s complaint to the ATO.

[97] The failure to consult by the Respondent with the Applicant to the extent required by the Clerks Award is a matter relevant to fairness of the dismissal. It is not a matter however, that would of itself lead to a conclusion that Ms Vidiac’s dismissal was harsh, unjust or unreasonable.

[98] Full consultation was highly unlikely to have negated the operational reasons for the dismissal or lead to any other substantive change. It is likely that Ms Vidaic would have been dismissed in any event, even if full consultation had occurred.

[99] Taking into account the matters arising under s.387 of the Act referred to above, I am not satisfied that the Applicant’s dismissal was harsh, unjust or unreasonable, particularly having regard to the absence of human resource management specialists or expertise on the processes adopted by the Respondent.

[100] Although there was no valid reason for the termination related to the Applicant’s capacity or conduct as per s.387(a) of the Act, I am satisfied that there was a sound, defensible and well-founded reason for the Applicant’s dismissal.

[101] The Respondent no longer required the majority of the Applicant’s tasks to be performed by anyone because of changes in the operational requirements of its business and it was not reasonable in all the circumstances to redeploy the Applicant. There had been a history of Tarrants advising the Respondent that the administrative services contract the Respondent provided was to be reduced due to a decline in work and dissatisfaction with the service provided. This finally culminated with its termination, and as such, the number of staff required by the Respondent reduced.

[102] Balancing all of the relevant considerations under s.387 of the Act, these circumstances provide a valid reason for the dismissal and support a conclusion that the dismissal was not harsh, unjust or unreasonable.

[103] The Applicant’s claim is accordingly dismissed.

COMMISSIONER

Appearances:

Mr D Colquhoun on behalf of the Applicant.

Ms S Seco on behalf of the Respondent.

Hearing details:

2012.

Sydney:

October 10.

 1   [2012] FWAFB 5241

 2   [2012] FWAFB 5241

3 [2010] FWA 3125

 4   [2012] FWAFB 5241

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