Mrs Achok Gumwel v JBS Australia Pty Ltd
[2017] FWC 3262
•19 JUNE 2017
| [2017] FWC 3262 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mrs Achok Gumwel
v
JBS Australia Pty Ltd
(U2017/1545)
| Deputy President Gostencnik | MELBOURNE, 19 JUNE 2017 |
Application for an unfair dismissal remedy; dismissal unfair; reinstatement not appropriate; order for compensation not appropriate in circumstances; application dismissed.
On 13 February 2017, Mrs Achok Gumwel (Applicant) applied under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The Applicant commenced employment with JBS Australia Pty Ltd (Respondent) on 1 October 2009[1] and was employed as a daily hire meat processor. The Applicant was dismissed by the Respondent on 27 January 2017, effective immediately.[2]
Turning first to deal with the initial matters which must be decided before the merits of an application are considered.[3] These matters were not in dispute, and I find that:
· The application was made within the time prescribed in s.394(2) of the Act;
· The Applicant was, at the date of her dismissal, protected from unfair dismissal within the meaning of s.382 of the Act;
· The Respondent was not a small-business employer within the meaning of the Act and so the Small Business Fair Dismissal Code did not apply; and
· The dismissal was not effected for reasons of redundancy, and so it was not a case of genuine redundancy within the meaning of s.389 of the Act.
Given that there appeared to be limited factual disputes, that the parties were unrepresented, the Applicant’s limited command of English and the wishes of the parties, I determined to conduct a determinative conference rather than a hearing in relation to the matter.
For the reasons which will become apparent below, I am satisfied that the Applicant’s dismissal was unfair and that neither an order for reinstatement nor compensation is appropriate in the circumstances.
Background
As earlier indicated, the Applicant was employed as a meat processor from 1 October 2009 until 27 January 2017. The Applicant was advised of her dismissal from employment by letter on 27 January 2017 (Termination Letter).[4] The Termination Letter informed the Applicant that her “excessive absence from the workplace” was no longer considered as a temporary absence.[5]
Upon her dismissal, the Applicant was paid her outstanding long service leave accrued annual leave, leave loading and accrued personal leave, a payment the Respondent was not obliged to make.[6] The Applicant was not paid any amount in lieu of notice as the Applicant was engaged as a daily hire employee.[7]
The Applicant has been unfit for work from 7 October 2016 due to a non-work related illness[8] and provided the Respondent with a medical certificate for her absence. On 3 January 2017, the Applicant provided the Respondent with a medical certificate from Dr Karen Linton declaring her to be unfit for work between 03/01/2017 to 03/04/2017 inclusive.[9] On 17 January 2017, the Respondent wrote to the Applicant requesting information about the Applicant’s capacity and when she would be fit to return to work as it was considering terminating her employment.[10] The letter requested that a response be provided to the Respondent by close of business on 27 January 2017. In response to the Respondent’s letter, the Applicant wrote to the Respondent on 24 January 2017 indicating that she intends to return to work as soon as her condition improves and urged the Respondent to keep her position open until her return.[11] She attached to the letter a medical certificate from Dr Linton dated 20 January 2017. The medical certificate declared the Applicant unfit for work between 03/01/2017 to 03/04/2017 inclusive. Dr Linton indicated that she believed that the Applicant would be fit to return to work from 4 April 2017.[12]
The Applicant was dismissed by the Respondent on 27 January 2017, effective immediately.[13]
On 28 March 2017, the matter was the subject of conciliation wherein an offer for reinstatement was made to the Applicant. The offer was rejected by the Applicant. The Applicant says that she rejected the offer because “she might get sick again and that way they [the Respondent] will just use that against me again to dismiss me as well”.[14]
On 18 April 2017, Dr Linton sent a letter to the Commission. The letter, inter alia, outlined the Applicant’s medical history and confirmed that the Applicant was now fit to return to her full duties. Dr Linton indicated that she believed that “Mrs Gumwel was unfairly dismissed as she had been extremely unwell and her recovery took the predicted medical amount of time”.[15]
On 28 April 2017, the Respondent again offered the Applicant her position back with the Respondent. The letter stated:
“
…
We deeply regret the circumstances prompting the actions we were forced to take due to you not being able to meet the inherent requirements of your role and hope you will rejoin JBS as a productive employee on Monday May 8, 2017.
…”[16]
The Respondent submits that given both reinstatement offers were declined, no back pay should be awarded to the Applicant[17] and maintains that any order the Commission makes should be of reinstatement only.[18]
The Applicant seeks an order for compensation as she maintains that “there is no trust between myself and JBS Australia, our working relationship has been damaged beyond repair”.[19] The Applicant seeks the maximum amount available because she believes that she would have earned that amount had her employment not been terminated.[20]
During the determinative conference, the Respondent again, encouraged the Applicant to accept its offer of reinstatement. At the end of the determinative conference, I gave the Applicant an opportunity to reconsider her position and provide the Respondent an answer as to whether she wished to accept the Respondent’s offer of reinstatement. On 14 June 2017, my associate was advised that the Applicant did not wish to accept the Respondent’s offer.
Consideration and application of the statutory framework
Protection from Unfair Dismissal
An order for reinstatement or compensation may only be made if I am satisfied the Applicant was, at the date of the dismissal, protected from unfair dismissal under the Act.
Section 382 of the Act sets out the circumstances that must exist for the Applicant to be protected from unfair dismissal as follows:
“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.”There is no dispute, and I am satisfied, that the Applicant was, on 27 January 2017, protected from unfair dismissal within the meaning of s.382.
Was the dismissal unfair?
The Applicant’s dismissal will have been unfair if I am satisfied, on the evidence, that all of the circumstances set out in s.385 of the Act existed. Section 385 provides:
“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.”
There is no dispute that the Applicant was dismissed at the Respondent’s initiative within the meaning of s.386 of the Act. As I have previously indicated, the Respondent is not a small business employer so the issue of compliance with the Small Business Fair Dismissal Code does not arise, and the dismissal of the Applicant was not a case of genuine redundancy within the meaning of s.389 of the Act.
Harsh, unjust or unreasonable
It remains therefore, for me to consider whether the Applicant’s dismissal was harsh, unjust or unreasonable. The matters that must be taken into account in assessing whether the dismissal was harsh, unjust or unreasonable are set out in s.387 of the Act:
“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.”
The ambit of the words “harsh, unjust or unreasonable” in the context of a dismissal was explained in Byrne & Frew v Australian Airlines Ltd[21] by McHugh and Gummow JJ as follows:
“. . . It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”[22]
Ultimately, however, it is the matters set out in s.387 of the Act to which regard must be had.
It is apparent from the material before me that the Respondent sought to rely on the temporary absence provisions[23] set out in the Fair Work Regulations 2009 (Regulations) to found the Applicant’s dismissal. The relevant part of the Regulations is as follows:
“(5) An illness or injury is not a prescribed kind of illness or injury if:
(a)either:
(i)the employee's absence extends for more than 3 months; or
(ii)the total absences of the employee, within a 12 month period, have been more than 3 months (whether based on a single illness or injury or separate illnesses or injuries); and
(b)the employee is not on paid personal/carer's leave (however described) for a
purpose mentioned in paragraph 97(a) of the Act for the duration of the absence.”
Similarly, s.352 of the Act makes it unlawful for an employer to dismiss an employee for reasons of temporary absence from work because of illness or injury of a kind prescribed by the Regulations (as above).
During the determinative conference, the Respondent accepted that the dismissal was unfair.[24] The Respondent terminated the Applicant’s employment upon a misunderstanding of the law. [25] It believed it had a valid reason to dismiss the Applicant given that the medical certificate declared the Applicant unfit to work for a period more than three months. The Respondent accepted[26] that it could not lawfully terminate the Applicant’s employment until after the temporary absence period had eventuated. There was no other basis for the termination. The Respondent’s concession was a proper one.
I am therefore satisfied that the dismissal was unfair in all of the circumstances.
Remedy
I turn next to consider the question of remedy.
The statutory provision
Section 390 of the Act sets out the circumstances in which I may make an order for reinstatement or compensation:
“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.”
Given my earlier conclusions, the matters set out in ss.390(1) and (2) are satisfied. Therefore the jurisdictional preconditions to the order of an appropriate remedy are satisfied.
The question whether to order a remedy in a case where a dismissal has been found to be unfair remains a discretionary one.
Reinstatement as the primary remedy for an unfair dismissal
Subsection 390(3) underscores the primacy of reinstatement as a remedy for an unfair dismissal. The discretion to order a remedy of compensation may only be exercised if the Commission is satisfied that reinstatement is inappropriate. The Applicant does not seek reinstatement because she says there is no trust between her and the Respondent. She also submits that the working relationship has been damaged beyond repair[27] and that she is worried she will become a “target”[28] upon her return. The following passage of the transcript makes good this point:
“You declined the offer?‑‑‑Yes.
Right. Can you tell me why you declined the offer?‑‑‑One thing since when I started working with them I had never been actually called in to the office to be questioned on the basis of what I might have not done well. The second, I was just being dismissed on the basis of my illness, and there is nobody that knows when he or she will get sick, and when I get back to work and being dismissed on the basis of my illness I might get sick again and that way they will just use that against me again to dismiss me as well.
Your former employer seems to accept that it did the wrong thing. Do you agree with that?
THE INTERPRETER: She said, "Do I have to respond to it?"
THE DEPUTY PRESIDENT: I'm asking whether she agrees with that proposition?‑‑‑If it is a wrong thing that they have done, yes.
They seem to accept that?‑‑‑Yes, they do accept.
So given that they do accept that, what was preventing you from going back to work for that employer?‑‑‑Yes. The reason why I don't want to is because coming having all these hassles between us, arguing every now and then I don't think there is a relationship between us anymore. I was being so good with them before, and how about if I go and work with them now when we had a lot of dispute, I don't think that relationship is going to be a smooth one.[29]
…
Ms Gumwel, I am troubled by the fact that your former employer is here offering to take you back in circumstances where it acknowledges that it has done the wrong thing, and you are here and not wishing to go back to the employer but wanting compensation in circumstances where you could avoid all those losses by taking up the job offer. Would you like to respond to that?‑‑‑I think I have just responded to that earlier because I explained that my relationship and the way I was doing my job I was doing my job with all the trust with them, but my relationship with them has now just been distorted and therefore I lost my trust with them, and I don't see working with them.”[30]
The Applicant says that despite the good relationship she has with her work colleagues, she says that “every human being is prone to maybe [sic] mistakes so any mistake that I might actually be involved in then I will just be the first target because already I don't have a relationship with management.”[31] Mr William Murraylee, HR Manager of the Respondent gave evidence. He reiterated that the Applicant should not have any concerns about being targeted,[32] and indicated that none of the employees at the workplace have knowledge of the Applicant’s dismissal and the employees believe that the Applicant is still absent from work due to her illness. Mr Murraylee apologised to the Applicant for terminating her employment and encouraged the Applicant to accept the Respondent’s offer of reinstatement.[33]
There is nothing before me which would suggest that I should not take the Respondent’s assurance. I consider the Respondent’s apology as genuine and accept that the Respondent wanted to re-establish the workplace relationship. It properly accepted that the Applicant’s dismissal was unfair, it apologised to the Applicant and offered to reinstate the Applicant to her former position and to treat the resumed employment as continuous. The Respondent acted appropriately in the circumstances. The Applicant’s concerns, though no doubt genuinely held, are nonetheless baseless on the evidence before me. I am not persuaded that objectively it can be concluded that the relationship has irretrievably broken down. The Applicant’s subjective view does not persuade me otherwise.
Ultimately, I cannot force an unwilling employee to go back to work if they do not wish to do so. Given that the Applicant’s evidence it cannot be said that reinstatement is appropriate in the circumstance.
For the reasons indicated above, I consider that an order for reinstatement is inappropriate.
Compensation as a remedy
Section 390(3)(b) provides that I must not make an order for compensation unless I am satisfied that reinstatement is inappropriate and I consider that an order for the payment of compensation is appropriate in all the circumstances.
Section 392 of the Act sets out the circumstances that must be taken into account when determining an amount of compensation, the effect of any findings of misconduct on that compensation amount and the upper limit of compensation that may be ordered:
“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 $69,450 from 1 July 2016
(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.’
As I have earlier indicated, I am not satisfied that the Applicant’s reluctance to go back to work is well founded in the circumstances. The refusal to accept reinstatement is also unreasonable. As indicated above, Mr Murraylee on behalf of the Respondent reiterated to the Applicant that she should not have any concern about being targeted.[34] He says “…we certainly don't hold any vendettas or would not be vindictive in any nature and we can assure Ms Gumwel that she would be welcome back into her previous role.”[35] Mr Murraylee apologised to the Applicant, the following extract of the transcript makes good its point:
“THE DEPUTY PRESIDENT: Mr Murraylee, I think we canvassed this earlier but the company accepts now does it not that it didn't have a proper or lawful basis to dismiss the applicant?‑‑‑Yes we do accept that.
And Mr Murraylee is the company sorry for the decision that it made?‑‑‑Absolutely.
And has it apologised to Ms Gumwel?‑‑‑Yes, we apologised on the 28th of March.
Perhaps you might communicate that to Ms Gumwel now?‑‑‑Yes. Ms Gumwel, we sincerely apologise for terminating your employment and would like to remedy that situation by having you back in our employ.”[36]
Ultimately, but for the refusal by the Applicant to return to work with the Respondent, the employment relationship between the Applicant and the Respondent would have continued. This is a situation where the Applicant could have avoided all of her losses for which compensation is now sought, by accepting the genuinely made reinstatement offer from the Respondent. Against the back drop of the primary remedy under the Act, which but for the Applicant’s refusal to accept, would have been available to her, I do not consider an order for compensation to be appropriate.
Taking into account the findings I have earlier made, I consider that an order for compensation is not appropriate.
The application for a remedy is dismissed. An order giving effect to this decision is separately issued in PR593902.
DEPUTY PRESIDENT
Appearances:
Mrs A Gumwel on her own behalf.
Mr W Murraylee, Human Resource Manager on behalf of the Respondent.
Hearing details:
2017.
Melbourne.
8 June.
[1] PN43 – PN45.
[2] Exhibit 1 at Attachment ‘E’.
[3] Section 396 of the Fair Work Act 2009.
[4] Exhibit 1 at Attachment ‘E’.
[5] Ibid.
[6] PN73 – PN82.
[7] PN83 – PN85.
[8] Respondent’s Outline of Submissions dated 11 May 2017 at [5].
[9] Exhibit 1 at Attachment ‘A’.
[10] Respondent’s Outline of Submissions dated 11 May 2017 at [6], Exhibit 1 at Attachment ‘B’.
[11] Exhibit 1 at Attachment ‘D’.
[12] Ibid at Attachment ‘C’.
[13] Ibid at Attachment ‘E’.
[14] PN139.
[15] Exhibit 1 at Attachment ‘F’.
[16] Respondent’s Outline of Submissions dated 11 May 2017 at Attachment ‘1’.
[17] Ibid at [13].
[18] PN85.
[19] Applicant’s Outline of Arguments dated 24 April 2017 at question 7b.
[20] Ibid at question 7c.
[21] (1995) 185 CLR 410.
[22] Ibid at 465.
[23] Fair Work Regulations 2009 – Reg 3.01.
[24] PN59 – PN64.
[25] PN57– PN58.
[26] PN288.
[27] Applicant’s Outline of Arguments dated 24 April 2017 at question 7b.
[28] PN174.
[29] PN138 – PN144.
[30] PN155.
[31] PN174.
[32] PN248.
[33] Ibid.
[34] Ibid.
[35] Ibid.
[36] PN244 – PN247.
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