Miss Rachaele Przybyszewski v Diabetes Australia Victoria

[2011] FWA 4974

[2011] FWA 4974

FAIR WORK AUSTRALIA

DECISION

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

Miss Rachaele Przybyszewski
v
Diabetes Australia Victoria
(U2010/2028)

COMMISSIONER SMITH MELBOURNE, 1 AUGUST 2011

Alleged unlawful termination.

INTRODUCTION

[1] Ms R. Przybyszewski seeks relief in relation to her termination of employment pursuant to s.394 of the Fair Work Act 2009 (the Act). Ms Przybyszewski was employed by Diabetes Australia beginning as a part-time employee and at the time of the termination of her employment was working five days a week with Mondays and Fridays being performed in her home.

[2] Ms Przybyszewski was employed on 21 July 2009 and made redundant on 30 November 2010. At the time of her redundancy she was given 4 weeks redundancy payment, two weeks in lieu of notice and a further two weeks ex gratia payment. In addition, a four week external career counselling service was made available.

[3] Prior to the matter being allocated to me there were a number of attempts by the staff of Fair Work Australia to see if the matter could be settled prior to the file being forwarded in accordance with the Act. Ms Przybyszewski had, on two occasions, sought an adjournment of the informal discussion with staff of Fair Work Australia.

[4] Diabetes Australia was represented by Mr S. Millard, solicitor and Ms Przybyszewski was self represented.

[5] Diabetes Australia then sought a ruling and made an application pursuant to s.587 of the Act.

[6] When the matter was allocated to me I conferred with the parties in accordance with the obligations contained in ss.398 and 399 of the Act. Arising from that conference was a concession by Diabetes Australia that it failed to consult in accordance with the Social Community Homecare and Disability Award 2010 and therefore admitted that the termination was not as a result of a genuine redundancy as defined by s.389(1)(b) of the Act. Diabetes Australia did not resile from the merit of its position in that it satisfied s.389(1)(a) of the Act.

[7] In the circumstances, Diabetes Australia sought a hearing as to remedy against the background of an open offer to Ms Przybyszewski of 10 weeks pay as compensation. That letter said:

“Our client is prepared to offer 10 weeks’ salary. It is also prepared to provide an apology with respect to the approach taken to your retrenchment in so far as the Fair Work Act required that for there to be a genuine redundancy our client was required to comply with the relevant modern award obligation to firstly notify and consult with you about the pending redundancy of your position and including discussion of whether redeployment.” 1

[8] On 3 June the matter was called on but the applicant was not present. Given those circumstances I dismissed the application. However after adjourning it was discovered that the applicant had phoned and advised that she was ill and could not attend. I advised Diabetes Australia that in the circumstances I would reopen the matter and list it for another day.

[9] However, before that hearing as to remedy, Diabetes Australia pressed its application for the matter to be dismissed pursuant to s.587 of the Act. This was dealt with on the papers as Ms Przybyszewski stated she was not able to attend because of illness. The s.587 application was dismissed by decision dated 7 July 2011 [[2011] FWA 4213] and attempts were made to have a hearing of the matter. Unfortunately Ms Przybyszewski was not able to attend the hearing and asked that the matter be considered on the papers. I advised that I would accede to that request as long as it was appreciated that aspects of the written submissions which differed could not be resolved as evidence, given there was no opportunity to test those views other than by the surrounding factual circumstances.

THE FACTS

[10] An organisational review of the operations of the program and services area in which Ms Przybyszewski was employed was commenced in early November 2010. As a result of that review it was decided that the DCV program co-ordinator role held by the applicant was redundant. Ms Przybyszewski was advised of this during a meeting on 30 November 2010 and at the same time Ms Przybyszewski was advised that she could apply for a vacancy which was a five day a week office based role or another vacant position which was a four or five day a week office based role. In both instances Ms Przybyszewski advised that she would not be applying for those roles as they were office based roles and did not permit her to work from home.

[11] These facts are largely uncontested in the applicant’s written submission although she alleges bullying and harassment together with a view challenging the need for the vacant positions to be office based for the whole week.

CONCLUSION

[12] I am satisfied on the material before me that Diabetes Australia had restructured its business in such a way so as to mean that the applicant’s position was redundant. I am also satisfied that whilst Diabetes Australia did not comply with s.389(1)(b) of the Act, it did seek to take measures to mitigate the effects of the redundancy which were not suitable to Ms Przybyszewski. Unfortunately given the inability to have evidence from Ms Przybyszewski many of the matters she alleges as to the work environment and the requirements of certain positions cannot be tested. The material provided by Diabetes Australia, is far more comprehensive including an outline of evidence of two Diabetes Australia staff, than that of Ms Przybyszewski.

[13] I now turn to consider the statutory requirements; s.387 provides:

387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA 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 FWA considers relevant.

[14] Sections 387(a) to (e) do not apply in this case. In relation to s.387(f) the employer should have adopted better procedures but I note that it did not have dedicated human resources management.

[15] Finally, I turn to any other matter that FWA considers relevant. In this connection it must follow that a failure to apply the provision of the Act constitutes action which is unreasonable. Therefore I find that the termination of employment of Ms Przybyszewski was unreasonable. I now turn to remedy.

[16] I am satisfied that reinstatement is inappropriate. The position held by Ms Przybyszewski has been made redundant. Therefore consideration is given to compensation. Section 392(2) of the Act provides:

(2) In determining an amount for the purposes of an order under subsection (1), FWA 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 FWA considers relevant.

[17] The open offer made by Diabetes Australia is one clearly within is ability to pay. Ms Przybyszewski had relatively short service and material has been presented in relation to her earnings and her submission that she was unable to find employment for a period of four months because of the Christmas period. There is no evidence of monies earned or likely to have been earned.

[18] Finally, I must consider any matter which FWA considers to be relevant. In this connection it is difficult to go past the open offer made by the employer of 10 weeks wages in addition to the monies paid in relation to her redundancy and the ex gratia payment. This is an amount that the employer considered reasonable in all the circumstances. There is no evidence which would lead me to award more than the 10 weeks offered and therefore I will make an order in terms of the offer made.

COMMISSIONER

 1   Extract from open letter of offer dated 29 March 2011.

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