Melissa Smith v Humble Bubbs T/A Early Learners on Aberdeen

[2013] FWC 4603

[2013] FWC 4603

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Melissa Smith
v
Humble Bubbs T/A Early Learners on Aberdeen
(U2013/6745)

COMMISSIONER LEE MELBOURNE, 13 AUGUST 2013

Application for unfair dismissal remedy - whether dismissal was at the initiative of the employer, whether valid reason for dismissal - whether dismissal was harsh, unjust or unreasonable - Fair Work Act 2009 ss.387, 394.

[1] This matter involves an application made pursuant to section 394 of the Fair Work Act 2009 (the Act) for unfair dismissal remedy. Ms Melissa Smith (the Applicant) claims that she was unfairly dismissed from her employment with Humble Bubbs T/A Early Learners on Aberdeen (the Respondent). Ms Eleni Hayden (the Director) was the Centre Owner/Director at the time of the dismissal.

[2] The application was lodged 21 February 2013. The matter was listed for Arbitration Conference/Hearing (the hearing) before me on Friday 14 June 2013 to commence at 9.30am in Melbourne. The Applicant appeared, represented herself and gave evidence on her own behalf.

[3] The Respondent (or any representative of the Respondent) failed to appear at 9.30 am on the relevant day, nor had they filed any materials prior to the hearing date. The Fair Work Commission had, on numerous occasions, attempted to contact the Respondent. A brief discussion of those attempts is as follows. A copy of the application and Fair Work Commission guide was sent to the Respondent by email on 27 February 2013. On 12 March 2013, the Fair Work Commission contacted the Respondent contact person by telephone who advised the Commission that the documents had not been received. The Commission resent the documents. On 19 March 2013, the Respondent contact (and Director at the time of dismissal), Ms Eleni Hayden sent an email to the Commission advising that she was no longer the contact person for the matter, however no specific contact details for an alternative contact were provided. That same day, the listed telephone conciliation could not take place as the Respondent did not participate.

[4] The matter was subsequently listed for arbitration and directions for filing were sent by email and post to the Respondent on 11 April 2013. The Respondent was directed to file materials by 20 May 2013. On 3 May, Ms Hayden again emailed the Commission to advise that she was not the contact person for the matter and directed enquiries to “Jane to get Anton Mahfoud details”.

[5] On 22 May 2013, the Commission contacted the Respondent premises by telephone and were told by a staff member to contact “Doug” in relation to the matter on a specified telephone number. The Commission left a voice to text message on that telephone number.

[6] On 31 May 2013, my associate spoke with Ms Hayden on the telephone number of the Respondent premises. She again stated that the Commission should contact “Doug” and explained that she was not sure why he had not responded to previous contact. My associate confirmed that the email address which had been used for service of documents on the Respondent was correct and current address.

[7] On 31 May 2013, my associate was able to speak to Doug Constable who advised he was responsible for the accounts of the Respondent. My associate advised Mr Constable that correspondence had been sent in relation to this matter by both post and email. Mr Constable advised my associate that he would be at the premises of the Respondent the following day and would advise my chambers if the Respondent would be submitting materials.

[8] My chambers did not receive any further contact from Mr Constable and numerous attempts to contact him by telephone were unsuccessful.

[9] On 13 June 2013, my associate rang the general telephone number for the Respondent and spoke with a staff member Sharon. That staff member provided a telephone number for Mr Anton Mahfoud. My associate again confirmed with that staff member that the email address provided for service of documents was a correct and current email address for the Respondent.

[10] On 13 June 2013, my associate spoke with Mr Mahfoud. He explained that he was not aware of the matter and undertook to contact the Respondent’s office and have someone return my associates call.

[11] Shortly thereafter, Mr Mahfoud rang chambers and advised that Doug Constable should be contacted in relation to the matter. My associate advised Mr Mahfoud of the numerous previous attempts to contact Mr Constable and confirmed the telephone number used was correct for Mr Constable. Mr Mahfoud stated that he was unsure whether someone would be available to attend the hearing the following day and sought an adjournment of the matter.

[12] Having considered the repeated attempts to contact the Respondent, I determined that the matter would proceed as listed. My associate advised Mr Mahfoud that the matter would be proceeding and that it was expected that an appropriate representative of the Respondent would attend. My associate also advised Mr Mahfoud that the matter may be determined in the absence of the Respondent should no appearance be made. My associate also sent an email to the Respondent confirming the attempts to contact the Respondent, advising that the matter was listed for hearing and may be determined in their absence.

[13] As discussed above, at the hearing on 14 June 2013, the Applicant appeared representing herself and the Respondent made no appearance. The matter proceeded by way of a determinative conference.

Background

[14] The Applicant was employed as a Certificate III level qualified child care worker for the Respondent from 11 April 2012. According to the Applicant, she was employed on a part-time basis, though her hours were slightly less than full time hours, at 37.5 hours per week.

[15] The Applicant’s employment was terminated (according to a letter dated 29 January 2013 which was addressed to the Applicant and signed by the Director) effective 5 February 2013. According to the Applicant she attended the workplace on 4 February 2013 to hand in her uniform. The Applicant claims she was not clear as to the date her employment was terminated.

[16] In my view the terms of the letter of termination are clear. The Applicant’s employment was terminated with effect from 5 February 2013. The period from 29 January 2013 included a notice period of one week. However, the Applicant’s uncontested evidence is that she became aware of the dismissal when she received the letter by express post on 1 February 2013. This means that her notice period was in fact less than one week. However this does not alter the fact that the dismissal took effect on 5 February 2013.

[17] The letter sent by the Director to the Applicant sets out the basis of the termination of employment as being because her “performance/conduct is still unsatisfactory”. The reasons included are:

• allegations of bullying of other staff members;



• leaving a child care room to go to the kitchen to obtain more food for the children and leaving the room below the required staff/child ratio;



• talking over the top of the Director at a meeting to discuss the applicants performance;



• yelling at another staff member;



• leaving a child unattended outside of the centre;



• restraining staff in order to voice her opinion;



• bullying staff to give them orders;



• contacting staff outside of business hours;



• speaking to staff in an abrupt manner;



• “voicing” to staff members that she was taking the director to solicitors; arguing with centre management regarding the centres policies on exclusion and medical certificates;



• messaging the Director at inappropriate hours;



• not allowing management to apply the annual leave policy;



• contacting parents or staff in relation to the business contrary to direction.

[18] A number of the allegations in the letter of termination refer to specific events and dates. Others are general in nature and do not provide any specific references to occurrences. The Applicant generally disputes the allegations made against her and claims that the dismissal was unfair.

The law to be applied

[19] Section 394 of the Act provides that a person who has been dismissed may apply to the Fair Work Commission (the Commission) for an order under the Act granting a remedy. The Act provides that an application must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows.

[20] The Applicant made her application for unfair dismissal remedy on 21 February 2013. It was clear on the evidence from the Applicant and written letter of termination that the dismissal took effect on 5 February 2013. I find that the application was made within the period required by subsection 394(2)(a) of the Act.

[21] A person is protected from unfair dismissal if:

“Division 2—Protection from unfair dismissal

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.

Note: High income threshold indexed to $123,300 from 1 July 2012

383 Meaning of minimum employment period

The minimum employment period is:

(a) if the employer is not a small business employer—6 months ending at the earlier of the following times:

(i) the time when the person is given notice of the dismissal;

(ii) immediately before the dismissal; or

(b) if the employer is a small business employer—one year ending at that time.”

[22] In this matter the evidence was that the Applicant was employed from 10 April 2012 until 5 February 2013. This is a period of less than 12 months but more than 6 months. I note at this point that the Respondent did not submit any documentation as directed by the Commission on numerous occasions. Thus there is nothing from the Respondent to attest as to whether or not the Respondent was a small business at the date of dismissal. The evidence of the Applicant is that the centre employed 35 staff. 1 As the evidence supports a finding the business is not a small business within the meaning of the Act, the Applicant has completed a period of employment with the employer of at least the minimum employment period and thus the requirement of section 382(a) of the Act is met.

[23] The Applicant tendered payslips which evidenced that she was earning no more than $36,231.00 per year. ($18.58 per hour x 37.5 hours x 52 weeks). This evidence is uncontested evidence. I find that the Applicant’s annual rate of earnings were less than the high income threshold and that the requirements of section 382(b) are met.

[24] I find the Applicant was a person protected from unfair dismissal under the Act.

[25] Section 385 of the Act sets out what constitutes an unfair dismissal;

“Division 3—What is an unfair dismissal

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.”

[26] With regard to s.385(a), section 386 of the Act sets out the meaning of ‘dismissed’. It is clear that the Applicant was dismissed based on the terms of the letter referred to above.

[27] With regard to s.385(c), as discussed above I have found that the Respondent was not a small business at the time of dismissal, within the meaning of section 23 of the Act. Therefore, the application of the Small Business Fair Dismissal Code is not relevant.

[28] With regard to s.385(d), there was no suggestion that the Applicant’s dismissal was a case of genuine redundancy. Section 385(d) does not apply in this matter.

[29] The key matter for determination is whether the dismissal was harsh, unjust or unreasonable (section 385(b)).

The evidence:

[30] As already stated, the Respondent provided no evidence, filed no materials and did not appear at the hearing. I have only the evidence of the Applicant.

[31] The Applicant filed the letter of termination as part of her materials which were marked as exhibit S1 in the proceedings. The evidence of the Applicant was directed largely at refuting the allegations regarding her conduct and performance which were made in the letter of termination. The Applicant gave evidence by way of two witness statements, marked as exhibits S2 and S3. These documents were attested to by the Applicant and tendered in the proceedings. The Applicant gave further oral evidence, under oath, on the day of the proceedings.

[32] The evidence of the Applicant was extensive. I will only deal with the evidence as it is relevant to the allegations made in the letter of termination; however I make clear that I have considered all of the evidence provided. I will deal with each of the allegations made in the letter of termination, the issues raised and the responses of the Applicant in turn.

[33] The first issue relates to an allegation of bullying. The letter of termination contains an allegation that the Applicant was advised on 18 July 2012 that on 10 July 2012 she acted in an inappropriate (bullying) manner toward another staff member and was given a verbal warning.

[34] The Applicant claims in response that she was never involved in a formal meeting on 18 July 2013, and there was no verbal warning issued. 2 In her evidence at the hearing, the Applicant said it was “just over a food incident and it happens all the time”.3 The Applicant claimed that she didn’t feel it was bullying, but that she had had enough of the poor food quality, claiming that the children were being stuffed “up with bread”.4 The Applicant referred to a written warning which she had received but that the written warning related to essentially the same incident.5 The written warning was attached to Exhibit S4 and clearly relates to events on July 10 2012 where the Applicant left the children’s room to attend the kitchen to ask for more food. The bullying allegation appears to relate either to the manner in which the Applicant spoke to the staff member in the kitchen when asking for the extra food or to “Emma” the room supervisor. The Applicant did not contest that she asked for more food but disputed that she engaged in bullying behaviour.

[35] The second issue raised in the termination letter is an allegation that on 10 July 2012 the Applicant left the “Wallaby Room” without the correct “staff to child ratio” in the room “…which endangers life and also the safety of staff and children”. The warning letter refers to the same allegation but includes, “…even though this was for a short period of time…under no circumstances should staff be left over ratio (sic) in the room”.

[36] The termination letter refers to a follow up meeting to take place on 1 August 2013 to discuss job performance. There was no evidence before me that this meeting took place. There is no evidence of any other performance or conduct related matters being raised with the Applicant until January 2013. To the contrary, the Applicant claims that she sought meetings with the Director to raise concerns or grievances that she had, but to no avail.

[37] The Applicant concedes that she left the “Wallaby Room” to go to the kitchen, and that she was out of the room for five to ten minutes. However, the Applicant stated that “…it’s not like it’s not allowed because that’s our normal practice. We got told to do that and also I was standing in front of glass windows because I walked out the door and the kitchen door is right opposite that room. I could still see the children from the glass windows”. 6 She also claims that the person in charge of the room, “Emma” told her to go to the kitchen. It is also claimed in the Applicant’s statement that staff members in the rooms are required to collect and return trolleys and that when this happens, rooms are without ratio and that this occurs daily. Further, the Applicant argued that the kitchen doesn’t have a phone for contact.

[38] There was also evidence in the Applicant’s statement (Exhibit S3) of an argument between the Applicant and “Emma” that day about the timing of a late afternoon snack for the children. However, the Applicant claims that it was “Emma” that was raising her voice in the exchange. The Applicant also claims that the cook got upset about the request for additional food as there are often problems with the quantity of food available and that many of the staff were upset about the lack of food available for the children. The Applicant also claims there was not a meeting as such on the 18th of July, that it was”…just like in the corridor”.

[39] The third issue raised in the termination letter relates to the Applicant’s alleged conduct at a meeting on 11 January 2013 where it is said that her performance had not improved and that the Applicant spoke over the Director, not allowing her to speak. The Applicant claims that it was the Director who was very verbal, loud and using “strong hand gestures” during the meeting. The Applicant claims she was not given a chance to respond to accusations mentioned and the meeting was stopped as a result of a parent arriving to speak to the Director. The Applicant claims the meeting was to be rescheduled but that did not occur. The Applicant agreed that a support person, Ms. O’Keefe, attended the meeting of 11 January 2013.

[40] The fourth issue raised in the termination letter is the claim that the Applicant mistreated an administrator by “verbally and emotionally” yelling at her. The Applicant claims that she did have a louder voice on that occasion, but she did not yell at her at all. 7

[41] The fifth issue raised in the letter of termination is the claim that in the week of 12 November 2012, the Applicant left a three and a half year old child outside unattended for a period of more than 15 minutes. The Applicant agrees that a child was left unattended outside, but for no more than 10 minutes.

[42] The Applicant described the circumstances surrounding the child being left outside. These were as follows: that the Applicant had gone outside to relieve another staff member (“Roger”) who was on a 20 minute break; that the staff member in charge of the room was Rebecca Sherman, not the Applicant; that there were 3 to 4 children in the room requiring an “aid” but that none was provided; that no warning was given at the time of the incident, nor was it ever discussed; that the Applicant was not provided with the roll or numbers of children at the time; that the roll was checked when the children were brought inside; that the Applicant and Ms Sherman were in the process of going through the roll when the child was brought inside by another staff member who had noticed the child outside; that the Applicant was not the last staff member outside with the children and that it was Ms Sherman that was the last outside. 8 The Applicant gave evidence at the hearing that was consistent with her description of the events on that day as detailed in her statement. The Applicant also claimed that Ms. Sherman had told her that if the incident was anyone’s fault it was hers (i.e. Ms Sherman’s fault).9 The Applicant also expressed concern that the incident was not reported to the Education Department.

[43] The sixth issue is the claim that the Applicant physically restrained staff in order to voice her opinion to them. The Applicant responds that she has never physically restrained a staff member, that she will sometimes pat or tap a person on the arm to get their attention but the Applicant disputes that she had physically restrained anyone.

[44] The seventh issue is the allegation that she was bullying staff, by giving orders rather than asking them. The Applicant denies this charge and claims it is “made up”. Further, she maintained that as she was not a room leader she was not in a position to give orders to staff.

[45] The eighth issue contained in the termination letter is the claim that the Applicant has contacted a number of staff in relation to, “… questions and opinions as to what they may think of her after hours.” The Applicant claims this to be a false statement. The Applicant gave evidence that she does have personal friendships with some staff members, sometimes going out to dinner with them and giving them lifts home from work.

[46] The ninth issue raised in the termination letter is an allegation that the Applicant was speaking to staff in an abrupt manner. The Applicant responded that she does not speak abruptly, that it is her nature to speak quickly but, “… I do not raise my voice and intimidate others”.

[47] The tenth issue is the claim that the Applicant voiced to three staff members that she was taking the Director to the solicitors. It is claimed the Applicant said the Director cannot be trusted and that she has signed something she did not agree with. The Applicant responded that this related to a letter about “Shirley” and a request to obtain a copy of that letter. At the time of the request for the letter, the Applicant says she advised the Respondent that she was going to “Fair Work” to query her pay and her pay slips due to constant errors.

[48] The eleventh issue raised is an allegation of arguing with management with regards to centre policies and procedures particularly with respect to clearance to work with children and medical certificates. On this matter the Applicant stated that she did not argue with the management. The issue appears to relate to the Applicant on two separate occasions having a condition that could mean that she be excluded from contact with children. The Applicant claims that she was provided with clearances from the doctor to attend work on both occasions.

[49] The twelfth issue raised is an allegation that the Applicant was messaging and making inappropriate phone calls to the Director late at night. The Applicant claims that the Director had said it was ok to contact her anytime on her private number. Further, the Applicant stated that the Director herself had texted the Applicant late at night in relation to starting times.

[50] The thirteenth issue raised is the allegation that the Applicant has not allowed management to follow through with the procedures for the annual leave policy. The Applicant claims that she did in fact follow the correct procedures and her leave was approved.

[51] The fourteenth issue raised is a claim that the Applicant was informed on 11 January 2013 not to contact parents or staff in relation to the Respondent’s business but that she did so on 18 January 2013, harassing them in regards to the service and that a parent had put in a formal complaint. The Applicant claims that at no time was she told not to contact parents, that she was only told not to talk about the centre and that she complied with that direction. The Applicant said that she did ring a parent, (for whom she had baby-sat in a private arrangement a number of times previously with the Directors knowledge) to advise her that their child had seen the Applicant crying at the centre and to let the parents know that they should advise their child that the Applicant would not be at work. The Applicant claims that at no stage has she harassed a parent of children in the centre.

[52] I note that the Applicant filed with her materials a number of letters of support from other staff members and past employers. Some of the statements deal with factual matters relevant to the dismissal, others are more in the vein of a character reference for the Applicant. The authors of those letters did not appear at the hearing. The letters are not sworn statements. Consequently, I have placed no reliance upon them in reaching a decision in this matter.

Was the dismissal harsh, unjust and unreasonable? (s. 385(b))

[53] As set out above, the criteria for considering whether a dismissal was harsh, unjust or unreasonable is set out in section 387 of the Act.

Section 387(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);

[54] The evidence summarised above, all of which was provided by the Applicant, either refutes directly the allegations made or disputes the Applicant’s responsibility for events that occurred which may have provided the basis for the dismissal.

[55] As to the first issue, the claim of bullying, either directed to the cook or to “Emma”, is denied by the Applicant.

[56] The second issue relates to the claim that the Applicant had left the “Wallaby Room” on 10 July 2012 without the correct staff to child ratio. The warning letter that was issued by the Respondent for this incident concedes that it occurred for only a short period of time, though it does refer to consequent safety concerns for the children and staff. The maintenance of staff/child ratios in child care centres is clearly critical to the safety of children and a wilful breach of the requirements may well constitute a valid reason for dismissal, depending on the surrounding circumstances.

[57] Conduct does not occur in a vacuum. 10 Relevantly, the Applicant concedes that she left the room. However, she claimed that leaving the room for short periods of time to go to the kitchen to get more food and to collect and return trolleys was normal practice. Further, on the day in question the Applicant claims that she could still see the children from where she was standing. Importantly, she gave evidence that “Emma”, who was in charge of the room, told her to go to the kitchen. In light of these surrounding circumstances, I find this does not constitute a valid reason for termination.

[58] The third issue is the Applicant’s alleged conduct at the meeting of 11 January 2013. The Applicant disputes that she spoke over the Director. She claims the Director was the one who was loud in the meeting.

[59] The fourth issue relates to the claim that the Applicant mistreated an administrator by emotionally and verbally yelling at her. This claim is similarly denied by the Applicant.

[60] The fifth issue relates to a child being left unattended outside for a period of time. Again, depending on the circumstances, if it was the case that the Applicant was responsible for this conduct, it would be likely to constitute a valid reason for dismissal. The Applicant conceded that the child was left outside unattended for a period of 10 minutes. However the Applicant asserts that it was Ms. Sherman who was the last outside with the children and that Ms. Sherman had told her that if the incident was anyone’s fault it was hers. The Applicant was credible in her evidence as to what occurred on the day. I am satisfied that the Applicant was not responsible for the child being left outside. In such circumstances, this does not constitute a valid reason for dismissal.

[61] The sixth, seventh, eighth and ninth allegations are all denied by the Applicant.

[62] The Applicant refutes the tenth allegation that she threatened to take the Director to the solicitors. She agrees that she advised them of intent to go to “Fair Work” to query her pay. Exercising a right to query a wages entitlement is not a valid reason for dismissal.

[63] On the eleventh issue of arguing with management over centre policies, this is denied by the Applicant. Further, she claims that she was provided with a clearance to attend for work on the two relevant occasions.

[64] On the twelfth issue, regarding inappropriate text messaging, the Applicant claimed that the Director had authorised after hours contact and that the Director in fact would contact the Applicant late at night.

[65] The thirteenth claim that the Applicant had not allowed management to follow procedures regarding annual leave is denied.

[66] Finally, the claim that the Applicant had harassed a parent of the centre is denied by the Applicant.

[67] Overall, I found the evidence of the applicant to be credible. Her evidence is uncontested given the non appearance of the Respondent. Having considered all of the evidence, I am not satisfied that there was not a valid reason for the dismissal.

Section 387(b) - whether the person was notified of that reason.

[68] The Applicant was notified of the reason for the dismissal in the termination letter (Exhibit S3).

Section 387(c) - whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person.

[69] This is not relevant as I have found there was no valid reason. 11 Chubb Security Australia Pty Ltd v Thomas Print S2679

Section 387(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.

[70] There was no refusal by the employer to allow a support person. There was in fact a support person present at the meeting that occurred on 11 January 2013.

Section 387(e) - if the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal.

[71] It is clear that at least part of the dismissal related to unsatisfactory performance and that there had been a written warning issued. However, the allegation in the written warning that the Applicant behaved in an inappropriate manner is disputed by the Applicant as detailed above. The Applicant conceded she left the “Wallaby Room” to attend the kitchen but was asked to do so by the supervisor and that such a practice was common.

Section 387(f) - the degree to which the size of the employer’s enterprise would be likely to impact on procedures followed in effecting the dismissal and Section 387(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

[72] The Applicant’s evidence is that the Respondent is not a large business and there was no suggestion it had any level of human resources expertise. This lack of capacity in the human resources area will have had some impact on the procedures followed in effecting the dismissal and I have taken this into account.

Section 387(h) - any other matters FWA considers relevant.

[73] There are no other matters relevant to my consideration in this matter.

Conclusion as to the nature of dismissal

[74] For the reasons set out above, I find that the Respondent did not have a valid reason to dismiss the Applicant from her employment. She was notified of the reason for the dismissal but disputes all of the reasons given for the dismissal and has given credible evidence in support of her case. I have considered the size of the Respondent’s enterprise and the evident lack of human resources expertise. However, this lack of expertise does not excuse the Respondent acting to terminate an employee where there is no valid reason for the termination.

[75] In all of the circumstances I find that the dismissal was harsh, unjust and unreasonable.

Remedy

[76] The relevant provisions of the Act pertaining to remedy are contained in section 390 of the Act:

“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.”

[77] It also necessary to consider the Objects of Part 3-2 of the Act especially section 381(c) of the Act which provides that an object of that Part of the Act is to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.

[78] The presumption in the legislation is that should a dismissal be found to be unfair, that compensation should only be considered if reinstatement is not appropriate.

[79] In this matter, the Applicant does not seek reinstatement and strongly expressed a desire to no longer work at the centre. 12 The Applicant has secured further employment on a casual basis at another child care centre since “...the end of March”.13

[80] Reinstatement in the circumstances of this case is not an appropriate remedy. The Applicant has successfully secured further employment and does not seek reinstatement and is strongly resistant to again working at the centre. I do not consider reinstatement to be an appropriate remedy.

[81] Having determined that reinstatement is not appropriate I must consider what compensation, if any, is payable, in lieu of reinstatement.

[82] The Act provides for compensation as a remedy for unfair dismissal.

“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.

Note: subsection 392(5) indexed to $61,650 from 1 July 2012(need to update this amount

(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.

393 Monetary orders may be in instalments

To avoid doubt, an order by the FWC under subsection 391(3) or 392(1) may permit the employer concerned to pay the amount required in instalments specified in the order.”

[83] In all of the circumstances, I consider that the award of some amount of compensation is appropriate in this matter.

[84] In determining the amount of compensation, I must have regard to “all the circumstances of the case” including each of the paragraphs in s.392(2) of the Act as set out above. No one matter is paramount but regard must still be had to each of them. 14

[85] The general approach to the calculation of compensation was well set out by the Full Bench in Tabro Meat Pty Ltd v Kevin Heffernan 15 and I will follow that approach in determining this matter.

Section 392(2)(c) - the remuneration that the person would have received or would have been likely to receive, if the person had not been dismissed.

[86] The Applicant’s earnings at the time of dismissal were $18.58 per hour gross, plus superannuation of 9%. She was engaged as a permanent part time employee. The Applicant gave evidence that at the time of dismissal, she was only being engaged for 15 hours of week, but that prior to 7 January 2013, the Applicant claims that she was working 37.5 hours per week. According to the Applicant, the change in hours occurred for no reason and with no warning. 16 The Applicant contested her reduction in hours at the time it occurred and was told it had occurred because there had been complaints about her.17 The Applicant also gave evidence to the effect that she thought the reduction in hours was designed to force a resignation from her.18

[87] It is difficult to determine if the Applicant’s contesting of the reduction of hours would have lead to a change in the number of hours provided by the Respondent. I note that it is likely the Applicant was covered by the Children’s Services Award 2010 based on her evidence of her work duties. 19 The action of reducing hours without agreement or notice is likely to have been in breach of clause 10(d)(i) of that modern award.

[88] The Applicant gave evidence she had no intentions of ever leaving the Respondent before the events surrounding the dismissal and that she really enjoyed working there before the allegations against her were made.

[89] I think it is reasonable to assume that, but for the dismissal, that in all of the circumstances the employment relationship would have continued for a further period of 3 years. I also think it likely in the circumstances that the sudden reduction in the Applicants’ hours that occurred just four days before the 11 January 2013 meeting was related to her impending termination of employment. The reason given by management for the reduction in hours was said to relate to complaints from parents. Further, the reduction in hours does not appear to have been undertaken in a manner that complies with the relevant award. Had she not been dismissed, I find that the Applicant was likely to have continued to have worked the 37.5 hours she had been working consistently since April 2012.

[90] Accordingly, I calculate the remuneration that the Applicant would have received or would have been likely to receive, if her employment had not been terminated, at $18.58 x 37.5 hours x 52 weeks x 3 years = $108,693.00 plus 9% superannuation.

Section 392(2)(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 section 392(2)(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.

[91] In the circumstances of this matter, subsections 392(2)(e) and 392(2)(f) can be dealt with together. The Applicant was unemployed from the date of her termination (from approximately 5 February 2013 until late March 2013). Since that time, the Applicant has been employed as a casual child care worker at another centre. At the hearing, the Applicant stated that her earnings since she secured employment up to the date of the hearing was approximately $5,200.00. 20 However, subsequent to the hearing the Applicant contacted my chambers to advise she was in error and that her earnings were in fact $6,800.00 for the period. Her work as a casual is based on the ordinary hourly rate of $18.58 plus the casual loading. The Applicant also gave evidence that as a casual her work had been intermittent.21 However, she was hopeful of securing a full time position in the future with her current employer. Such a position, she anticipates, would pay the same amount of $18.58 per hour as her previous employer.

[92] In Ellawalla v Australian Postal Corporation 22, with respect to a precursor provision, the Full Bench stated that “[o]nly monies earned during the period from termination until the end of the anticipated period of employment are deducted”.

[93] I think it is reasonable to assume that the Applicant will continue to earn from her recently secured position as a casual in the short term or as a full time employee in the longer term until the end of the anticipated period of employment. I think it reasonably likely that the Applicant will continue her intermittent casual work, averaging 3 days per week based on her current employment patterns 23 until 1 September 2013. I consider reasonably likely, based on her evidence that she will have secured a full time position by that time.

[94] A deduction is therefore appropriate of $88,725.69 24 representing the monies earned during the period from termination until the end of the anticipated period of employment. This deduction results in an amount of $19,967.31 plus 9% superannuation.

Section 392(2)(g) - any other matter that FWA considers relevant

[95] Ordinarily a deduction for contingencies is appropriate. 25 A deduction for contingencies is appropriate in this case. While the percentage to be deducted for contingencies is a matter for judgement, I think that a deduction of 25% is appropriate in the circumstances of this matter.

[96] This results in a provisional amount of compensation of $14,975.49. plus 9% superannuation.

[97] There are no other matters that are relevant to the determination of compensation other than ss.392(2)(a), (b) and (d), 392(3) and 392(5) of the Act. I will turn to those factors now.

Section 392(2)(a) - the effect of the order on the viability of the employer’s enterprise

[98] There is no evidence the award for compensation will affect the viability of the Respondent’s enterprise.

Section 392(2)(b) - the length of the persons service with the employer

[99] The Applicant was employed by the Respondent for approximately 10 months. I do find that the relatively short length of service provides a basis for reducing the amount of compensation to be awarded. I will deduct an additional 20% to account for the relatively short period of employment.

[100] This results in a provisional amount of compensation of $11,980.49 plus 9% superannuation.

Section 392(2)(d) - the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal

[101] Evidence was provided by the Applicant as to the efforts she went to in the period after the dismissal to secure alternative employment. The Applicant had difficulty in seeking new employment for four to six weeks after her dismissal due to her distressed state. 26 She started to look for work, handing in her resume to potential employers. Ultimately, she secured employment on a casual basis in late March. Her mitigation efforts are quite reasonable in the circumstances and sufficient to exclude any further deduction.

Section s.392(3) - misconduct

[102] I have found that the Applicant was not dismissed for a valid reason and that no misconduct was in evidence. Therefore there is no basis to make a further deduction for misconduct.

Section 392(5) - Compensation Cap

[103] As the amount of $11,980.49 plus 9% superannuation is less than the legislative compensation cap no further deduction is required.

Conclusion and order as to remedy

[104] I find that reinstatement is not an appropriate remedy in this case.

[105] I find that compensation is appropriate.

[106] I am satisfied that an order for payment of compensation by the Respondent of $11,980.49 gross plus 9% superannuation less tax as required by law, to the Applicant in lieu of reinstatement is appropriate in all the circumstances of the case. It accords a fair go all round to both the Respondent and the Applicant.

[107] The compensation payment, less any required deduction in taxation, is to be made within 14 days of this decision.

[108] An Order [PR540073] to this effect has been issued with this decision.

COMMISSIONER

Appearances:

M Smith appeared on her own behalf

No appearance entered by Respondent

Hearing details:

2013

Melbourne:

June 14

 1   PN67

 2   Exhibit S3

 3   PN77

 4   Ibid

 5   Ibid

 6   PN78

 7   PN101

 8   Exhibit S3

 9   PN102

 10   Qantas Airways Ltd v Cornwall, [1998] FCA 865

 11   Chubb Security Australia Pty Ltd v Thomas Print S2679

 12   PN193

 13   PN204

 14   Tempo Services Limited v Klooger and Others, PR953337, [22]

 15   [2011] FWAFB 1080

 16   Exhibit S3

 17   PN55

 18   PN44

 19   PN60 - PN64

 20   PN224

 21   PN203

 22   Print S5109

 23   PN203

 24   Calculated as follows; 2 years and 5 months full time at 18.58 per hour x 38. So $36714.08 pa x 2 years = $73428.16 plus 5 months (41.6%x $36714.08=$15297.53) So $73428.16 plus $36714.08 = $88725.69

 25   See Slifka v JW Sanders Pty Limited (1995) 67 IR 316 at 328

 26   PN238

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<Price code C, PR538821>