Mrs Elise McDonald v A.C. Grigg (Investments) Pty Ltd as trustee for the Grigg Investment Trust trading as Biloela Palms Motor Inn
[2019] FWC 4424
•30 JULY 2019
| [2019] FWC 4424 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mrs Elise McDonald
V
A.C. Grigg (Investments) Pty Ltd as trustee for the Grigg Investment Trust trading as Biloela Palms Motor Inn
(U2019/2132)
COMMISSIONER HUNT | BRISBANE, 30 JULY 2019 |
Application for an unfair dismissal remedy – jurisdictional objections – applicant dismissed at respondent’s initiative – dismissal did not comply with Small Business Fair Dismissal Code – applicant summarily dismissed during discussion with manager - no valid reason for dismissal – dismissal harsh, unjust and unreasonable – compensation ordered.
[1] Mrs Elise McDonald has made an application to the Fair Work Commission (the Commission) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) against The Grigg Investment Trust T/A Biloela Palms Motor Inn (BPMI). The name of the respondent was corrected to A.C. Grigg (Investments) Pty Ltd as trustee for the Grigg Investment Trust trading as Biloela Palms Motor Inn by Order [PR710821].
[2] Mrs McDonald commenced working for BPMI on 17 July 2017 as a kitchen hand, and held the position of chef at the end of her employment on 7 February 2019.
[3] BPMI objected to Mrs McDonald’s application on three jurisdictional grounds:
• Mrs McDonald was not dismissed from her employment at the initiative of BPMI;
• Mrs McDonald’s period of employment did not meet the minimum period of employment; and
• A third jurisdictional objection which stated, “Elise was given the option to calm down her aggressiveness or pack her belongings and leave the premises”. 1
[4] Attempts to resolve this matter through conciliation were unsuccessful and it was listed for hearing before me in Gladstone on 14 June 2019. Mrs McDonald appeared on her own behalf and Ms Samantha Gothard, Motel Manager at BPMI, appeared for the respondent. After obtaining the views of the parties, I decided to hold the matter as a determinative conference.
Jurisdictional objections discontinued at determinative conference
[5] At the commencement of the determinative conference I clarified with Ms Gothard that BPMI did not wish to press its jurisdictional objection regarding the period of Mrs McDonald’s employment. Ms Gothard confirmed that that jurisdictional objection had been selected in error within BPMI’s Form F3 – Employer Response to Mrs McDonald’s application. Further, Ms Gothard clarified that BPMI’s ‘other’ jurisdictional objection was put forward as an additional ground of objection relating to the application of the Small Business Fair Dismissal Code (the Code).
[6] It is not disputed that BMPI employed fewer than 15 employees at the time of Mrs McDonald’s dismissal and is small business employer within the meaning of s. 23 of the Act. I am in agreement that the respondent is a small business employer.
[7] As a result, the jurisdictional objections to Mrs McDonald’s application that BPMI presses are:
• Mrs McDonald was not dismissed from her employment at the initiative of BPMI; and
• If Mrs McDonald was dismissed from her employment, that her dismissal complied with the Code.
[8] I explained to the parties at the commencement of proceedings that it was necessary for me to determine whether there had been a dismissal; and if there had, I would then consider whether the Code had been met before moving on, if necessary, to consider whether the Mrs McDonald’s dismissal was harsh, unjust or unreasonable pursuant to s.387 of the Act.
Legislation
[9] Section 396 of the Fair Work Act 2009 (the Act) sets out several matters that must be considered before the merits of an application can be considered, and states:
“396 Initial matters to be considered before merits
The FWC 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.”
[10] I am satisfied that the application was made within the 21 day period required by s. 394(2) of the Act.
[11] Section 382 of the Act sets out the circumstances that must exist for a person to be protected 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.”
[12] As set out above, BPMI does not dispute that Mrs McDonald had completed the minimum employment period by the date of her alleged dismissal and her income was less than the high income threshold. I am satisfied that Mrs McDonald was a person protected from unfair dismissal.
[13] Section 385 of the Act defines the meaning of “unfair dismissal” and states as follows:
“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.”
[14] Section 386 of the Act deals with the meaning of dismissed, providing:
“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.”
[15] A dismissal will not be unfair if the employer is a small business and the dismissal was consistent with the Code. The Code provides:
“Small Business Fair Dismissal Code
Commencement
The Small Business Fair Dismissal Code comes into operation on 1 July 2009.
Summary Dismissal
It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.
Other Dismissal
In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job.
The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.
The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.
Procedural Matters
In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.”
A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements. [original emphasis]”
[16] If the Commission determines that the dismissal was not in accordance with the Code, it is necessary for the Commission to then consider if the dismissal was harsh, unjust or unreasonable, taking in account the criteria set out at section 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.”
Evidence of Mrs McDonald
Events prior to end of employment
[17] Mrs McDonald gave evidence about her ordinary work tasks under previous motel managers and under Ms Gothard. At all times while employed as a chef by BPMI, Mrs McDonald was required to complete food preparation and service for dinner and breakfast service. Mrs McDonald stated that under previous managers:
• She had at first had the assistance of a kitchen hand, and if the kitchen hand was not available, the manager would provide some assistance in the kitchen;
• After a previous change in managers, she had lost the assistance of a kitchen hand and had relied on wait staff to fulfil the ‘kitchen hand shift’, but the manager at the time had still assisted in delivering meals to rooms, with dishes and with food preparation;
• The previous shift’s dishes were always done before she arrived for her shift;
• Any meals for the manager were to be prepared at the end of the shift, unless the manager prepared their own meal; and
• Mrs McDonald had ordered food and taken food deliveries for BPMI.
[18] Mrs McDonald stated that after Ms Gothard took over as manager:
• Her work tasks increased to answering phones, checking in guests and taking bookings;
• One of the wait staff left the business and she no longer had any assistance in the kitchen from the wait staff; and
• Ms Gothard preferred to purchase goods required by the kitchen.
[19] Mrs McDonald stated that after Ms Gothard took over as manager in November 2018, and until the end of 2018, she did not experience any issues at work. When she returned to work on 10 January 2019 she found the kitchen in an ‘unsatisfactory condition’ with dishes that had not been cleaned since the kitchen had closed on 20 December 2018. Mrs McDonald stated that from 10 January 2019 she often found the kitchen in an unsatisfactory condition upon arriving at work.
[20] Her evidence is that at around this same time she noticed Ms Gothard had started to drink quite heavily, to the point that she could sometimes not speak clearly or stand. Mrs McDonald stated, “I would arrive in the afternoon to find that Sam had already started drinking”. Mrs McDonald stated that she was concerned about raising the unsatisfactory condition of the kitchen with Ms Gothard when she had been drinking as she was unsure how Ms Gothard would react.
[21] Mrs McDonald stated that whenever she did bring up the state of the kitchen with Ms Gothard, Ms Gothard claimed that she had been very busy and could not attend to the kitchen. Mrs McDonald stated that she had witnessed Ms Gothard spending a significant amount of time at a venue across from BPMI’s premises, drinking and gambling. Mrs McDonald stated that Ms Gothard had often asked her to watch the reception desk so that Ms Gothard could go across the road and she would sometimes be gone for more than an hour. Mrs McDonald stated that Ms Gothard, on occasion, would return to the BPMI premises and go to bed in the afternoon, leaving Mrs McDonald to complete her ordinary kitchen duties, watch the reception desk and assist the waitresses. Mrs McDonald was occasionally required to lock up at the end of the night if Ms Gothard had not woken up by that time. Mrs McDonald stated that she was stressed by the increased workload from these additional tasks.
End of employment
[22] Mrs McDonald stated that she arrived for work at approximately 4:30pm on 7 February 2019 and commenced working in the kitchen. At all times during her shift, Mrs McDonald had strapping on her arm due to an existing injury for which she had previously taken a night off of work. Mrs McDonald stated that in addition to her normal work tasks she was required to clean up dishes and utensils that had been used by Ms Gothard for personal meals. Mrs McDonald stated that at approximately 5:00pm, Ms Gothard approached her in the kitchen and told her they would at some point sit down and discuss the menu for an upcoming wedding reservation. Mrs McDonald continued to work her shift and was ‘under the pump’ by 5:30pm.
[23] Mrs McDonald stated that after arriving that afternoon she was informed by BPMI’s housekeeping staff that Ms Gothard had been across the road with her partner from approximately 10:00am, and had not returned by the time the housekeepers finished around lunch time.
[24] Mrs McDonald stated that at approximately 5:45pm Ms Gothard entered the kitchen area and demanded Mrs McDonald make her oysters kilpatrick. Mrs McDonald attempted to tell Ms Gothard that she would make the oysters as soon as she had finished another task, but Ms Gothard had already left the kitchen. Mrs McDonald stated that Ms Gothard returned to the kitchen at 6:00pm and said to her in an angry tone, “Where are my oysters?” Mrs McDonald explained that the oysters were about 15 minutes from being ready; Ms Gothard left the kitchen and then returned almost immediately and said angrily “Don’t worry about it!” and left the kitchen again.
[25] Mrs McDonald stated that Ms Gothard returned to the kitchen with a phone in her hand which she slammed onto a bench and told Mrs McDonald that she was going to take a shower and Mrs McDonald was to ‘watch the office’ while Ms Gothard was absent. Shortly thereafter Ms Gothard again returned to the kitchen and said to Mrs McDonald that they should ‘have a chat’ and directed Mrs McDonald to sit with her in the motel’s public restaurant area. Mrs McDonald assumed that Ms Gothard wished to discuss the upcoming wedding reservation that Ms Gothard had talked of earlier.
[26] Mrs McDonald stated that after she sat down with Ms Gothard, Ms Gothard said to her in an angry tone, “What’s your problem?” Mrs McDonald said to Ms Gothard that over the previous few weeks she had been frustrated about the state the kitchen had been left in, and did not have enough time to do extra cleaning in addition to her ordinary work tasks and watching the phone and office when Ms Gothard was not available. Mrs McDonald recalled that Ms Gothard responded angrily, “Start earlier then!” and Mrs McDonald replied she was already starting earlier than she would normally. Mrs McDonald recalled that Ms Gothard cut her off and yelled at her, “Get over it.”
[27] Mrs McDonald recalled that she said to Ms Gothard that the restaurant was not the right place for their conversation and perhaps they should move elsewhere. Ms Gothard continued to yell at Mrs McDonald, and Mrs McDonald stood up and started to leave and tried to encourage Ms Gothard to follow her to a more private area. Ms Gothard also stood up, blocked Mrs McDonald’s movement and yelled at Mrs McDonald, “Get your shit and leave”.
[28] Mrs McDonald stated that she went to the kitchen to retrieve her bag and leave the premises for the night, but Ms Gothard followed her and upon seeing Mrs McDonald leaving with her bag said, “No, get all your shit, your knives, everything that is yours and fuck off.” Mrs McDonald stated that she had at that point realised that Ms Gothard was firing her. She collected as many of her belongings as she could fit in her bag including her knives and left the premises at approximately 6:30pm. Mrs McDonald was not able to take all of her belongings with her and those items were still at the BPMI premises at the date of the determinative conference. 2
[29] Mrs McDonald did not return to work after 7 February 2019.
[30] Mrs McDonald submitted into evidence a text message she had received the following day from a junior waitress employed by BPMI. In answering questions from me during the determinative conference, Mrs McDonald provided additional text messages in a chain of correspondence between her and the junior waitress, as follows:
McDonald: | Hey, what happened after I left? I hope she has calmed down. I’m going to ring Fair Work tomorrow and speak to them about unfair dismissal. They may ask for a witness. Would you be willing to tell them about tonight? |
Waitress: | We packed up and left, and packed up the kitchen too. She said she would still have a job next week, so don’t know what that means. |
Waitress: | So you’re not gonna come back? |
McDonald: | She told me to take my stuff; knives, everything and told me to get out. So I take that as I’ve been fired. For her to lose it at me for saying that I’m frustrated with the state of the kitchen every day and that yelling at me in front of you guys was inappropriate, let’s take this elsewhere, then tell me to get my shit and fuck off. I feel sorry for the poor lady who has the wedding next weekend. |
Waitress: | Yeah that’s understandable. She shouldn’t have said it front of us. Yeah, I keep wondering about this wedding. |
[31] In answering questions from me, Mrs McDonald stated that Ms Gothard had witnessed her packing her knives, a stick blender, her bag and her phone before leaving the premises. Mrs McDonald stated that she ordinarily left her knives and the stick blender at BPMI’s premises. 3
[32] Mrs McDonald submitted into evidence a text message she had received from a housekeeper employed by BPMI, at 7:30am on 8 February 2019. The text message stated:
“She asked me if I knew of a cook. I asked why she sacked you and she said your [sic] too miserable”
[33] Mrs McDonald stated that at approximately 2:00pm on 8 February 2019 and after receiving the housekeeper’s text message she spoke over the phone with the owner of BPMI, Dr Alan Grigg. Mrs McDonald stated that she told Dr Grigg that Ms Gothard had spoken aggressively to her, had asked her to collect her items and leave, and had tried to block her from the kitchen to retrieve her belongings. She also reported the condition that the kitchen had been left in over the previous few weeks. Mrs McDonald stated that Dr Grigg had said he was unhappy with the situation and he would contact Mrs McDonald again, but Mrs McDonald never received another call from Dr Grigg. 4
[34] In addition to her own witness statement, Mrs McDonald submitted three witness statements from persons that she had worked with during her employment with BPMI, as follows:
• Ms Amanda (Bridie) Gilbert;
• Ms Waverney Brooks;
• Ms Natalie Wallace.
[35] The statements given by Ms Gilbert, Ms Brooks and Ms Wallace were in the form of character references for Mrs McDonald; they did not deal with the end of Mrs McDonald’s employment in any way. Prior to the determinative conference, BPMI confirmed that it did not seek to cross-examine any of Ms Gilbert, Ms Brooks and Ms Wallace. Ms Gilbert, Ms Brooks and Ms Wallace did not appear and did not give evidence at the determinative conference. While I admitted their statements into evidence at the determinative conference, I indicated to the parties that I would give those statements the appropriate weight in my decision.
Evidence of BPMI
Events prior to end of employment
[36] Ms Gothard stated that she first met Mrs McDonald when she started managing at BPMI. Mrs McDonald informed her when she first commenced that she (Mrs McDonald) oversaw the motel restaurant and the wait staff.
[37] Around this time, Ms Gothard informed Mrs McDonald that the restaurant was not making any money and that she had been informed by the owner to either build up the restaurant or close it. Ms Gothard used to be a chef and a restaurant manager.
[38] Ms Gothard informed Mrs McDonald that more home-style meals needed to be cooked otherwise patrons would eat across the road at the pub. Mrs McDonald informed Ms Gothard that she could not stand the smell of lamb, and she could not cook lamb, nor plate it up.
[39] Ms Gothard stated that the salads made by Mrs McDonald were not being eaten, and when she requested that she change the salad, Mrs McDonald became very aggressive and stormed off. Thereafter, Mrs McDonald did not prepare the salads; she left it to the wait staff to do.
[40] Mrs McDonald requested a pay rise and she was granted an additional $2.00 per hour. Ms Gothard stated that every day, Mrs McDonald would attend work miserable, complaining about her husband and her kids and how they were ‘driving her crazy’, and how she could not wait to get to work in order to have a break from them.
[41] Ms Gothard’s contract requires that all of her meals are supposed to be made by the chef. When Ms Gothard requested her particular meal at 5.30pm nightly, Mrs McDonald responded that the customers’ meals would come first. Ms Gothard would commonly not have a meal made for her, and by 9.00pm she would either consume a packet of chips, or she would go into the kitchen to prepare her own meal. When this occurred Mrs McDonald would “huff and puff.”
[42] Ms Gothard’s evidence is that the tension became worse and Mrs McDonald would ignore her or grunt if she was asked a question. If she provided a compliment to Mrs McDonald, it is Ms Gothard’s evidence that this made her worse, and she considered that she had to walk on egg shells around Mrs McDonald.
[43] Ms Gothard offered to buy Mrs McDonald a chef uniform and Birkenstock shoes, to which Mrs McDonald replied, “It’s too fucking hot in here and I prefer to just wear my shorts, a tee shirt and sand shoes.”
[44] Either in late January or early February 2019, Mrs McDonald informed Ms Gothard that she was sick of cooking and had applied for a job at a bank. Ms Gothard asked her if she would give notice if she was successful, but then noted that she is a casual and is not required to do so. Mrs McDonald responded that she did not think she would be awarded the job.
End of employment
[45] Ms Gothard stated that on 7 February 2019, there were no customers at all, and Mrs McDonald was standing around on her phone. Ms Gothard requested oysters for dinner, to which Mrs McDonald ignored her and slammed a tray into the sink.
[46] Approximately 30 minutes later Mrs McDonald was at the kitchen sink and Ms Gothard asked how the oysters were coming along? Mrs McDonald replied, “I’ll do them soon.” Another 15 minutes went by but they were still not cooked and Mrs McDonald was chatting with the wait staff. Ms Gothard stated to her not to worry about cooking the oysters.
[47] It is Ms Gothard’s evidence that she was by now feeling low and deflated. She asked if she could speak with Mrs McDonald outside in the dining area where there was no-one else. She asked her what is wrong, to which Mrs McDonald replied, “I’m too busy for this shit. I’m sick of arriving at work and doing all your dishes.”
[48] Ms Gothard responded that if she didn’t have time she could come in earlier or leave them for the wait staff when they come in. Mrs McDonald slammed her chair backwards and stormed off without further discussion. She stomped around the kitchen and gathered items of hers and Ms Gothard assumed that she was leaving mid-shift.
[49] Ms Gothard told her she needed to calm down or leave and take all of her belongings. Ms Gothard saw that she left, and it is her evidence that she assumed that Mrs McDonald would calm down in the morning and come back to apologise, but she never returned.
[50] During the determinative conference Ms Gothard gave the following evidence: 5
“….She just kind of stormed off and stormed into the kitchen first. I don’t block anybody. I don’t have anger issues. I’m not an aggressive person. She was beating around, throwing things around, banging things; like, just being erratic, and getting her belongings. So I don’t know why she felt that she couldn’t get her things. There’s absolutely no need at all. So she could have got all her things if that’s what she wanted, if that’s what she – I didn’t stop her from getting anything.”
[51] In response to evidence given by Mrs McDonald that Ms Gothard had sworn at her, Ms Gothard stated: 6
Commissioner: | That Ms Gothard, you said to Mrs McDonald, “Get all your shit; your knives, everything that is yours; and fuck off.” |
Ms Gothard: | I didn't speak like that. |
Commissioner: | Did you say that? |
Ms Gothard: | No, I did not say that. It's not my character. I don't speak to anybody like that. Maybe my partner, but nobody else. I would never speak - no one gets to me that bad. I don't get myself that worked up or upset. I think it's really unfair that she's saying that I say all these things, and it's just not even my character. |
[52] After Mrs McDonald’s departure, Ms Gothard became the chef in addition to her motel manager duties. She then found a new chef and informed him that she was looking for someone who is bright and happy so that they could enjoy a pleasant working environment.
[53] During the determinative conference, and having been informed of the text message sent to Mrs McDonald early the next morning regarding Ms Gothard’s inquiries of a new chef, Ms Gothard confirmed that she asked the housekeeper the day after Mrs McDonald’s departure if she knew anyone that could come in and help with the wedding. The following exchanged occurred: 7
Commissioner: | So you didn’t afford Mrs McDonald any time to come back and provide this apology that you were seeking? |
Ms Gothard: | From what the housekeeper was telling me, she had no intentions of coming back. And the doctor also said that she believe that she had had enough. |
Mrs McDonald: | I would like to add to that. The housekeeper actually messaged me at 7.30 that morning saying that Ms Gothard had already confronted her about asking – finding a new cook. And I didn’t speak to [Dr] Grigg until approximately 2pm that afternoon. |
[54] Over the Christmas break when Mrs McDonald was not working, Ms Gothard overheard the housekeeping staff talking to each other, saying that Mrs McDonald had told them that Ms Gothard was a drunk, was lazy, and was never at reception. This upset Ms Gothard. In addition, following Mrs McDonald leaving the business, Ms Gothard overheard the same housekeeper inform the new chef to the effect, “Good luck, the last chef said she [Ms Gothard] is a drunk and she never works.” Ms Gothard approached the housekeeper who apologised for saying that. The housekeeper is reported as informing Ms Gothard that Mrs McDonald hated Ms Gothard from the moment she arrived at the motel. Ms Gothard informed the housekeeper that she had overheard her on an earlier occasion and warned her against her conduct.
Separation certificate
[55] Ms Gothard agreed that following the conciliation conference conducted with a Commission conciliator, she provided to Mrs McDonald and a separation certificate. As to the reason for separation, Ms Gothard ticked the box: ‘Misconduct as an employee’, and then went on to state:
• Very aggressive
• Moody
• None [sic] conforming
[56] I questioned Ms Gothard as to why she didn’t tick the box: ‘Employee ceasing work voluntarily’ if she considered that Mrs McDonald had voluntarily left her employment. She said that she ticked: ‘Misconduct as an employee because’, “That’s why she left. She didn’t like it all. She couldn’t stand her job.” She then stated that it had been a mistake on her part to tick: ‘Misconduct as an employee’ instead of: ‘Employee ceasing work voluntarily.’ 8
[57] In addition to the witness statement of Ms Gothard, BMPI submitted three witness statements from persons that had worked with Ms Gothard at BPMI, as follows:
• Mr Peter Millers;
• Ms Mandy Burton;
• Ms Jaimee McKinley.
[58] The statements given by Mr Millers, Ms Burton and Ms McKinley were in the form of character references for Ms Gothard; they did not deal with the end of Mrs McDonald’s employment in any way. Prior to the Determinative Conference, Mrs McDonald confirmed that she did not seek to cross-examine any of Mr Millers, Ms Burton and Ms McKinley. Mr Millers, Ms Burton and Ms McKinley did not appear and did not give evidence at the Determinative Conference. While I admitted their statements into evidence at the Determinative Conference, I indicated to the parties that I would give those statements the appropriate weight in my decision.
Mrs McDonald’s submissions
[59] The majority of Mrs McDonald’s submissions regarding her dismissal at the initiative of BPMI, the application of the Code and the criteria set out in s.387 of the Act were given orally at the determinative conference and in response to questions put by me.
[60] Mrs McDonald maintained that she had not resigned from her employment on 7 February 2019 and that she had been dismissed by Ms Gothard at the initiative of BPMI. 9
[61] I read aloud to the parties the text of the Code and asked Mrs McDonald whether she wished to address me on the application of the Code on the assumption that it could be made out that she was dismissed at BPMI’s initiative. Mrs McDonald did not address me on the application of the Code. 10
[62] I read aloud to the parties the criteria for considering whether a dismissal was harsh, unjust or unreasonable set out in s.387 of the Act. Mrs McDonald addressed me on each of those criteria as follows:
s.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)
[63] Mrs McDonald submitted that she enjoyed her job and enjoyed going to work. She liked that there were quiet and busy days. She denied being miserable at work, and said that Ms Gothard used to comment on how bubbly she was at work.
s.387(b) - Whether the person was notified of that reason
[64] Mrs McDonald denied Ms Gothard’s evidence and disagreed with the respondent’s submissions that Ms Gothard had inquired with her from time to time about her work and had noticed that she looked miserable at work. Mrs McDonald submitted that she was always happy whilst at work and it is illogical for Ms Gothard to submit that she had confronted her about looking miserable. Mrs McDonald submitted that Ms Gothard in fact often commented to Mrs McDonald and other staff and patrons of BPMI that she was always ‘happy and bubbly’ at work. 11
s.387(c) - Whether there was an opportunity to respond to any reason related to the capacity or conduct of the person
[65] Mrs McDonald submitted that she was given virtually no opportunity to respond to any capacity or conduct related reason for her dismissal put to her by Ms Gothard. Mrs McDonald submitted that during her conversation with Ms Gothard immediately preceding her alleged dismissal she had attempted to explain her frustration with the state of the kitchen and her additional work tasks and explained that she was already starting early to complete all of her tasks. Mrs McDonald submitted that any opportunity to respond provided to her within that conversation ended when Mrs McDonald tried to guide Ms Gothard out of the restaurant area to somewhere more private and Ms Gothard told her to pack her things and leave.
[66] Mrs McDonald submitted that she did not feel she had been given an opportunity to respond to any reason for her dismissal related to her capacity or conduct. 12
s.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
[67] Mrs McDonald did not specifically address me on this criterion. At no time did Mrs McDonald request a support person.
s.387(e) - Was there a warning of unsatisfactory work performance before dismissal
[68] Mrs McDonald did not specifically address me on this criterion. I note BPMI’s submissions at [80] below that Ms Gothard did not warn Mrs McDonald of any unsatisfactory work performance before her alleged dismissal.
s.387(f) - Whether BPMI’s size impacted on the procedures followed and s.387(g) - Whether the absence of a dedicated resource management specialist impacted on the procedures followed
[69] Mrs McDonald submitted that when Ms Gothard had commenced with BPMI in November 2018 she had told staff that she had worked in large businesses prior to BPMI. Mrs McDonald submitted that Ms Gothard’s experience working in larger businesses should have provided an opportunity for Ms Gothard to be trained in dealing human resource matters.
s.387(h) - Other matters
[70] Mrs McDonald did not submit that I should take any other matters into account in considering whether her alleged dismissal was harsh, unjust or unreasonable. 13
Submissions of BPMI
[71] It was submitted that there had not been a dismissal at the initiative of BPMI, and Mrs McDonald ceased her employment voluntarily on 7 February 2019.
[72] I explained to the parties during the determinative conference that where an employer asserts that there was no dismissal at the initiative of the employer, it then becomes somewhat difficult for the employer to then meet the Code relevant to whether, on reasonable grounds, the employer believed that the employee’s conduct is sufficiently serious to justify immediate dismissal. I explained that it’s a double-edged sword for the employer. 14
[73] Ms Gothard submitted that she had dealt with many chefs before and the issues with Mrs McDonald had been one of the worst. However, Ms Gothard submitted that Mrs McDonald’s conduct had not been sufficiently serious to justify her immediate dismissal and she maintained that Mrs McDonald had not been dismissed at the initiative of BPMI. 15
[74] As to the ‘Other Dismissal’ within the Code, Ms Gothard submitted that the conversation that they were going to have would not have resulted in a warning, because she was fearful that Mrs McDonald was going to leave. She submitted that she simply wanted to have a conversation, but Mrs McDonald began banging items around and was angry.
[75] Relevant to s.387 of the Act, Ms Gothard addressed me on each of those criteria as follows:
s.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)
[76] Ms Gothard submitted that any reasonable person would have dismissed Mrs McDonald months earlier because of her behaviour, so there would have been a valid reason, but maintained that she did not dismiss her. She nominated the statements made her to the housekeeper as upsetting, and stated that she didn’t address it with her at the time because she needed a chef, and considered she would have to perform chef work if the chef was dismissed.
s.387(b) - Whether the person was notified of that reason
[77] Ms Gothard submitted that Mrs McDonald was not notified of a reason as she was not dismissed at the initiative of BPMI. She submitted, however, that she asked Mrs McDonald on a number of occasions why she is miserable, to which Mrs McDonald responded that she was annoyed with her family. 16
s.387(c) - Whether there was an opportunity to respond to any reason related to the capacity or conduct of the person
[78] Ms Gothard submitted that it was very difficult to speak with Mrs McDonald as she would come into work at around 3pm or 4pm, and when asked how she is, she would grunt and be miserable. She agreed that she never pulled Mrs McDonald aside on an earlier occasion. PN466.
s.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
[79] No request was made for a support person.
s.387(e) - Was there a warning of unsatisfactory work performance before dismissal
[80] During the determinative conference Ms Gothard stated that she had never been required to give warnings to employees in the past, and she understood that you have to give three warnings to an employee before dismissing them. The following was discussed: 17
Commissioner: | The Act doesn't specify that it must be three but it is one of the considerations that I must take into account, as to if you had issues, why didn't you, at the commencement of the shift, advise that, "We are going to spend the next 20 minutes discussing the issues that I have with you and you're welcome to bring a support person if you wish", so that it's outside of the actual work practices. It's not in the kitchen, it's not on the run, it's more formal than that. |
Ms Gothard: | Yes, okay, I see. |
Commissioner: | Is there any reason why - - - |
Ms Gothard: | No, I never knew that that would be a process. I just thought you could just have a conversation. |
s.387(f) - Whether BPMI’s size impacted on the procedures followed and s.387(g) - Whether the absence of a dedicated resource management specialist impacted on the procedures followed
[81] Ms Gothard submitted that she had never had to dismiss anybody in the past, and that she is not good at giving people a warning. She stated that she would dismiss an employee for theft, being cruel or racist. She normally can encourage employees to enjoy their jobs.
s.387(h) - Other matters
[82] Ms Gothard did not make submissions on this consideration. 18
Consideration
Was Mrs McDonald dismissed at the initiative of the employer?
[83] In accordance with Mohazab v Dick Smith Electronics Pty Ltd (No 2) (Mohazab), 19 a termination is at the employer’s initiative when:
• the employer’s action ‘directly and consequentially’ results in the termination of employment, and
• had the employer not taken this action, the employee would have remained employed.
[84] In O’Meara v Stanley Works Pty Ltd 20 (O’Meara), a Full Bench of the Australian Industrial Relations Commission, as this Commission then was, considered Mohazab and other case law considering when a termination will have been at the initiative of the employer, and concluded that there must be:
“[23] …some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end.”
[85] While the question of whether an act of the employer results directly or consequentially in the termination of employment is an important consideration, all of the circumstances must be examined including the conduct of both the employer and employee. 21
[86] Considering all of the evidence and submissions before the Commission, I am satisfied that Mrs McDonald was dismissed by Ms Gothard on 7 February 2019. I prefer Mrs McDonald’s evidence over Ms Gothard’s. It is relevant that the meeting was being held in the restaurant area and not a private place such as the office/residence of Ms Gothard. I find that Ms Gothard was upset when Mrs McDonald sought to have the meeting move, and said to her, “Get your shit and leave.” I also find that Ms Gothard said to Mrs McDonald, “No, get all your shit, your knives, everything that is yours and fuck off.”
[87] Ms Gothard’s evidence was not, at times, reliable. She asserted that the following day she had learned from the owner of the respondent, Dr Grigg that Mrs McDonald was not unhappy and unlikely to return, yet at 7.30am that day she was making inquiries of other staff as to where she could find another chef. I accept Mrs McDonald’s evidence that she did not speak with Dr Grigg until around 2.00pm, and she stated this in evidence during the determinative conference even before Ms Gothard offered up such an explanation.
[88] I do not accept Ms Gothard’s evidence where she considered allowing Mrs McDonald some time to calm down and apologise; she was looking for her replacement the very next morning.
[89] As to the text message from the housekeeper at [32], it is not necessary to determine what was said between Ms Gothard and the housekeeper relevant to whether Ms Gothard ‘sacked’ Mrs McDonald. The housekeeper did not give evidence before the Commission, and there remains a contest as to what was said by Ms Gothard. What is of most importance is that Ms Gothard was looking to replace Mrs McDonald when her earlier evidence had been that she expected her to return and apologise.
[90] Further, Ms Gothard’s completion of the separation certificate demonstrates that she did dismiss Mrs McDonald. The separation certificate was completed on 9 May 2019, well after the application had been made to the Commission and the jurisdictional objection of ‘no dismissal’ was pressed. In my view, the separation certificate is the clearest indication of how Ms Gothard felt towards Mrs McDonald and represents the reasons for the dismissal.
[91] I find that there was a dismissal pursuant to s.386(1)(a) on the employer’s initiative.
Was Mrs McDonald’s dismissal consistent with the Small Business Fair Dismissal Code?
[92] A dismissal will not be an unfair dismissal if the employer is a small business and the dismissal was consistent with the Code.
[93] It is not in dispute that BPMI is a small business employer within the meaning of s. 23 of the Act.
[94] Mrs McDonald was a casual employee, and the separation certificate demonstrates that Ms Gothard dismissed her for misconduct. Ms Gothard denies that she dismissed her for misconduct, but I have earlier found that she was dismissed on the employer’s initiative.
[95] As for the reasons pursuant to the Code, it is extraordinarily difficult for an employer to satisfy the Commission that the Code has been met relevant to a summary dismissal if the employer asserts that there was no dismissal by the employer. This is so because the Code requires the employer to assert and demonstrate that they had a reasonable belief that the person had engaged in serious misconduct.
[96] While I consider that Ms Gothard was likely annoyed by what she considered to be Mrs McDonald’s insubordination in not making her oysters for dinner, and getting up from the conversation, I do not consider that she believed on reasonable grounds that Mrs McDonald’s conduct was sufficiently serious to justify immediate dismissal. This is also demonstrated in her consideration as to why she would dismiss an employee at [81].
[97] As to ‘Other reasons’, Ms Gothard’s evidence is that she did not warn Mrs McDonald during her employment that she was at threat of being dismissed, as she did not want to lose a chef.
[98] BPMI cannot have complied with the Code with respect to ‘Summary Dismissal’ or ‘Other Dismissal’, and I determine that BPMI did not comply with the Code.
Was Mrs McDonald’s dismissal harsh, unjust or unreasonable?
[99] The Code not having been complied with, it is then necessary to determine whether the dismissal was harsh, unjust or unreasonable taking into account the criteria in s.387 of the Act.
s.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)
[100] I accept that Ms Gothard works extraordinarily long hours in her employment and finds it difficult to switch off given she lives where she works. There is very little separation between work and personal time.
[101] On Mrs McDonald’s evidence, she was annoyed in attending for work and cleaning up the kitchen. It would not be rewarding having left the family home and attending to her family’s needs, including young children, to then come to work and have to clean dirty dishes that were sometimes days old, or over the Christmas break, weeks old. It would, understandably, be a disgusting sight, and I accept that Mrs McDonald was repulsed by this.
[102] I accept that her disappointment spilled over to Ms Gothard, as she considered she was largely responsible for the mess. I accept Ms Gothard’s evidence that on occasions Mrs McDonald would attend for work and she appeared to Ms Gothard to be miserable.
[103] The highest evidence for the respondent is that on 7 February 2019, Mrs McDonald did the following:
• Stated, “I’m too busy for this shit. I’m sick of arriving at work and doing all your dishes.”
• Failed to cook Ms Gothard the promised oysters;
• Slammed her chair backwards and stormed off without further discussion; and
• Stomped around the kitchen and gathered her items.
[104] I do not accept that this constituted a valid reason for the dismissal by Ms Gothard. I accept Mrs McDonald’s evidence that Ms Gothard said to her, “No, get all your shit, your knives, everything that is yours and fuck off.” It was a significant overreaction to the perceived insubordination.
[105] I determine that there was not a valid reason for the dismissal.
s.387(b) - Whether the person was notified of that reason
[106] On Mrs McDonald’s evidence, she understood that she had been dismissed on 7 February 2019. It was not put to her that evening that she had slammed her chair backwards and stormed off. Nothing was put to Mrs McDonald by Ms Gothard other than questioning her ‘what is wrong?’.
[107] I determine that Ms Gothard did not notify Mrs McDonald the reason for the dismissal.
s.387(c) - Whether there was an opportunity to respond to any reason related to the capacity or conduct of the person
[108] Ms Gothard wanted to speak with Mrs McDonald on 7 February 2019, however the meeting appeared to me to escalate very quickly before Ms Gothard informed Mrs McDonald, “Get your shit and leave”, before then informing her to take everything and “fuck off”.
[109] I determine that there was not an opportunity for Mrs McDonald to respond to any reason related to her capacity or conduct.
s.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
[110] Mrs McDonald did not request a support person present at the discussions relating to dismissal, and accordingly, I find that there was not an unreasonable refusal by BPMI to allow a support person present.
s.387(e) - Was there a warning of unsatisfactory work performance before dismissal
[111] Ms Gothard’s evidence is that she did not provide a warning of unsatisfactory work performance to Mrs McDonald before the dismissal and I find accordingly.
s.387(f) - Whether BPMI’s size impacted on the procedures followed and s.387(g) - Whether the absence of a dedicated resource management specialist impacted on the procedures followed
[112] I accept that BPMI is a small business without any dedicated resource management specialists, and seemingly, without any guidance for Ms Gothard. Attempts were made by the Commission to engage Dr Grigg in the proceedings, however he never responded. Ms Gothard explained that she too had difficulty reaching Dr Grigg, and accordingly, she has been left without support to deal with these proceedings.
[113] Relevant to the dismissal, Ms Gothard alone dealt with Mrs McDonald, without any support, and I have taken that into consideration.
s.387(h) - Other matters
[114] Neither party made submissions on this consideration. I have taken into consideration that the place of employment was Biloela, a distance of approximately 1.5 hours from Gladstone. It is in rural Queensland.
Conclusion
[115] Having taken the above into account, I conclude that the dismissal was harsh, unjust and unreasonable. I consider that the dismissal was unjust and unreasonable as Mrs McDonald was not expecting to be dismissed on 7 February 2019, and when addressed by Ms Gothard, reasonably complained about having to clean dirty dishes before commencing her duties. The manner in which Ms Gothard dismissed Mrs McDonald by swearing at her and telling her to pack her things was inappropriate.
[116] I consider that the dismissal was harsh as Mrs McDonald had reasonable expectations of continuing in her employment until she found other employment. Simply because she had applied for a role in a bank, and been unsuccessful, it does not warrant a conclusion from the respondent that she was to, within a brief period of time, abandon the respondent.
Remedy
[117] Section 390 of the Act reads as follows:
“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.”
[118] Mrs McDonald is a person protected from unfair dismissal for the Act’s purposes, and is a person who has been unfairly dismissed. Accordingly, I am empowered to exercise discretion as to whether she can be reinstated.
[119] Mrs McDonald does not seek reinstatement, and I am satisfied in all of the circumstances that reinstatement is inappropriate.
[120] I now turn to consideration of compensation.
Compensation
[121] Section 392 of the Act provides:
“392 Remedy—compensation
Compensation
(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.
Criteria for deciding amounts
(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:
(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that the FWC considers relevant.
Misconduct reduces amount
(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.
Shock, distress etc. disregarded
(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.
Compensation cap
(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:
(a) the amount worked out under subsection (6); and
(b) half the amount of the high income threshold immediately before the dismissal.
(6) The amount is the total of the following amounts:
(a) the total amount of remuneration:
(i) received by the person; or
(ii) to which the person was entitled;
(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and
(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.”
Authorities
[122] The approach to the calculation of compensation is set out in a decision of a Full Bench of the Australian Industrial Relations Commission in Sprigg v Paul’s Licensed Festival Supermarket. 22 That approach, with some refinement, has subsequently been endorsed and adopted by Full Benches of the Commission in Bowden v Ottrey Homes Cobram and District Retirement Villages inc T/A Ottrey;23 Jetstar Airways Pty Ltd v Neeteson-Lemkes24 and McCulloch v Calvary Health Care (McCulloch).25
[123] I have had regard to the above authorities, and I have considered the submission of each party.
The effect of the order on the viability of BPMI
[124] Ms Gothard stated during the determinative conference that Dr Grigg had very recently sold the business due to financial difficulties. Ms Gothard was not sure of the relationship between the respondent and AC Grigg Investments Pty Ltd, which holds the lease for the Biloela Palms Motor Inn. She stated that she was unsure why payments of $7,000 each month are made to the solicitors and accountants, but she thinks it is to change the lease and trying to keep a butcher shop operational.
[125] In a submission sent to chambers following the determinative conference, Mrs McDonald stated:
“As I am aware that the respondent has claimed that the business may be under difficulties this is only hearsay from the respondent and should not have any bearings on my claim for compensation.”
[126] In correspondence dated 18 June 2019, the respondent’s accountant confirmed that Mrs McDonald had been employed by A.C. Grigg (Investments) Pty Ltd (ACN 151 745 130) as trustee for the Grigg Investments Trust trading as Biloela Palms Motor Inn (ABN 96 502 507 700). The respondent was invited to file submissions relevant to:
• (a) s.392(2)(a) the effect of the order on the viability of the employer’s enterprise; and
• (b) s.393 ….an order by the FWC under subsection 391(3) or 392(1) may permit the employer to pay the amount required in instalments specified in the order.
[127] No submissions were made by the respondent on these two considerations.
The length of Mrs McDonald’s service
[128] Mrs McDonald submitted that although the service was one year and seven months, in her previous employment she had held a job for 12 years and another for five years.
[129] I have had regard to the decision of SDP Richards in Davidson v Griffiths Muir’s Pty Ltd[2010] FWA 4342. His Honour determined at [140]:
“As an employee for a short period of time, the length of Applicant’s service with the Respondent on its own is not a powerful force making for a compensation remedy (or a compensation order of significant quantum)”
The remuneration that Mrs McDonald would have received, or would have been likely to receive, if she had not been dismissed
[130] Mrs McDonald submitted that given her previous lengthy employment history with other employers, she had wanted to continue working with the respondent for a long period of time. She stated that she did not plan on it being a short period of employment.
[131] Ms Gothard submitted that Mrs McDonald couldn’t stand the job and often told her so. She submitted that Mrs McDonald was looking for other work and was ‘over it’.
[132] I am of the view that Mrs McDonald’s employment would have continued for a reasonable period of time. Mrs McDonald seeks an order of eight week’s pay, that being the period she was out of work until she commenced new employment at a petrol station. In addition, she seeks an order of payment for work she missed out on account of Valentine’s Day and a planned wedding. Her calculations are $84.42 for Valentine’s Day and $245.00 for the wedding.
[133] There is no reason to conclude that Mrs McDonald would not have been employed for a further period of eight weeks, and accordingly I determine it appropriate to award compensation for the period of eight weeks at $610.00 per week, plus the amount of $84.42 and $245.00 for the events she missed due to the dismissal. The amount is $5,209.42 gross.
The efforts of Mrs McDonald (if any) to mitigate the loss suffered because of the dismissal
[134] Mrs McDonald secured alternative employment approximately eight weeks following the dismissal. She has also applied for additional training, and applied for approximately 22 jobs. I am satisfied that Mrs McDonald made considered effort to mitigate the loss suffered by her because of the dismissal.
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
[135] Mrs McDonald is earning approximately $580.00 per week in the new employment. She does not seek compensation beyond the eight week period from the dismissal, and accordingly it is unnecessary to discount any earnings from the new employment as the periods do not overlap.
The amount of any income reasonably likely to be so earned by Mrs McDonald during the period between the making of the order for compensation and the actual compensation
[136] This factor is not relevant in the circumstances of this matter.
Other relevant matters
[137] The parties did not make submissions in relation to this criterion. It is noted that Mrs McDonald was not paid any payment on termination on account of being employed as a casual employee.
Misconduct reduces amount
[138] Section 392(3) requires that if the Commission is satisfied that the misconduct of a person contributed to the employer’s decision to dismiss the person then the Commission must reduce the amount it would otherwise order by an appropriate amount on account of the misconduct.
[139] The section requires that consideration be given by the Commission, amongst other things, as to whether a person’s misconduct contributed to the decision to dismiss an employee even if the Commission has found that there was no valid reason for the person’s dismissal. However, if there was no valid reason for the dismissal that may be relevant to the Commission’s decision as to the appropriate amount by which the amount of compensation should be reduced. 26
[140] Being satisfied that there was not any misconduct on Mrs McDonald’s behalf, there is no reduction in the amount of compensation ordered. I do not consider that any perceived insubordination relevant to Mrs McDonald’s upset about washing the dirty dishes should or ought to be classified as misconduct. The conversation was not, in my view, complete, and Ms Gothard dismissed Mrs McDonald before the issue could be fully discussed.
Shock, distress etc. disregarded
[141] I confirm that any amount ordered does not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt caused to Mrs McDonald by the manner of the dismissal.
Compensation Cap
[142] I must reduce the amount of compensation to be ordered if it exceeds the lesser of the total amount of remuneration received by the applicant, or to which the applicant was entitled, for any period of employment with the employer during the 26 weeks immediately before the dismissal, or the high income threshold immediately prior to the dismissal.
[143] The high income threshold immediately prior to the dismissal was $145,400, and the amount for 26 weeks was $72,700. The amount of compensation the Commission will order does not exceed the compensation cap.
Payment by instalments
[144] No submissions were made by BHPMI relevant to whether a compensation order should be paid by instalments, despite being invited to make a submission. Following the determinative conference, Mrs McDonald corresponded that she would seek an order of compensation to be paid in six equal weekly instalments.
[145] There appears to me to be a broad discretion afforded to the Commission to decide whether to allow a compensation order to be paid in instalments. While Mrs McDonald would be comfortable receiving an order of compensation in instalments, no submissions were made by the respondent on this issue. I have concluded that there is no supporting reason to allow for the compensation order to be paid in instalments. I am satisfied it is appropriate that BPMI pay the amount of compensation within 14 days of the date of this decision.
Order of compensation
[146] I have determined that BPMI is to pay to Mrs McDonald the amount of $5,209.42 gross less tax as required by law.
[147] In addition, BPMI is to pay superannuation on the amount of $5,209.42 at the rate of 9.5% into Mrs McDonald’s superannuation fund. I am satisfied that it is appropriate to do so on all of the compensation ordered, as the amount does not include any payment for overtime; but simply, for the wedding, penalty rates on ordinary hours of work.
[148] An Order [PR710830] to that effect will be issued with this decision.
COMMISSIONER
Appearances:
McDonald E, for the Applicant
Gothard S, A.C. Grigg (Investments) Pty Ltd as trustee for the Grigg Investment Trust trading as Biloela Palms Motor Inn
Determinative conference details:
Gladstone
2019
14 June.
Final written submissions:
Submissions of the Applicant, 3 July 2019.
Submissions of the Respondent, 18 June 2019.
Printed by authority of the Commonwealth Government Printer
<PR709715>
1 Form F3 – Employer response to unfair dismissal application, 4 March 2019, part 2.2.
2 PN153 – PN158.
3 PN160 – PN176.
4 PN136 – PN140.
5 PN152.
6 PN283 – PN286.
7 PN206 – PN208.
8 PN373.
9 PN383 – PN384.
10 PN390 – PN404; PN407 – PN412.
11 PN522 – PN523.
12 PN524 – PN525.
13 PN528 – PN 531.
14 PN401.
15 PN402.
16 PN488.
17 PN471 – PN474.
18 PN529.
19 [1995] IRCA 645.
20 O’Meara v Stanley Works Pty Ltd PR973462 (AIRCFB, Giudice J, Watson VP, Cribb C, 11 August 2006) at [23]; citing Pawel v Advanced Precast Pty Ltd Print S5904 (AIRCFB, Polites SDP, Watson SDP, Gay C, 12 May 2000); Mohazab v Dick Smith Electronics Pty Ltd (No 2) [1995] IRCA 645; ABB Engineering Construction Pty Ltd v Doumit Print N6999 (AIRCFB, Munro J, Duncan DP, Merriman C, 9 December 1996).
21 Pawel v Advanced Precast Pty Ltd Print S5904 (AIRCFB, Polites SDP, Watson SDP, Gay C, 12 May 2000); O’Meara v Stanley Works Pty Ltd PR973462 (AIRCFB, Giudice J, Watson VP, Cribb C, 11 August 2006) at para. 23, [(2006) 58 AILR 100]; Mohazab v Dick Smith Electronics Pty Ltd (No 2) [1995] IRCA 645 (29 November 1995), [(1995) 62 IR 200]; ABB Engineering Construction Pty Ltd v Doumit Print N6999 (AIRCFB, Munro J, Duncan DP, Merriman C, 9 December 1996).
22 (1998) 88 IR 21.
23 [2013] FWCFB 431.
24 [2014] FWCFB 8683.
25 [2015] FWCFB 2267.
26 Crawford v BHP Coal Pty Ltd [2017] FWC 154, [345] – [346]; Read v Gordon Square Child Care Centre Inc. [2013] FWCFB 762, [83].
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