Mrs Luz Dela Torre Humm v Mediterranean All Suite Hotel

[2011] FWA 4357

[2011] FWA 4357

FAIR WORK AUSTRALIA

DECISION

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

Mrs Luz Dela Torre Humm
v
Mediterranean All Suite Hotel
(U2011/6241)

COMMISSIONER ROE MELBOURNE, 7 JULY 2011

Termination of employment.

[1] The matter arises from an application filed on 23 March 2011 under s 394 of the Fair Work Act 2009 (the Act) by Ms Luz Dela Torre Humm (the Applicant) for relief in respect to the termination of her employment from Primavera Resort Pty Ltd T/A Mediterranean All Suite Hotel (the Respondent). The hotel is located in Darwin. The original application referred to the respondent as Mediterranean All Suite Hotel however the parties agreed to the Application being amended to reflect the correct name of the Respondent.

[2] The Applicant was employed by the Respondent for significant periods of time between 2005 and 2011. However, the Applicant took a break of more than 12 months during 2009/2010. The Applicant was employed continuously from 26 June 2010 until 14 March 2011. The Applicant was engaged as a casual housekeeper at the hotel from 26 June 2010 until 5 September 2010, and as a permanent housekeeper team leader from 6 September until 6 March 2011. She then voluntarily returned to casual engagement from 7 March 2011. The last day the Applicant actually worked was Saturday 12 March 2011, but she attended work to collect her pay on Monday 14 March 2011. The Applicant claims that she was dismissed at that time and the Respondent claims that the Applicant effectively resigned at that time. The parties agree that the Applicant had a period of service of more than 6 months but less than 12 months. However, if the break in 2009/2010 had not resulted in the periods of earlier employment from being excluded from the period of service then the Applicant would have been employed for a period of more than 12 months.

[3] Following an unsuccessful conciliation conference the matter proceeded to arbitration. The parties elected to proceed to a hearing on 23 and 24 June 2011 in Darwin.

[4] I am satisfied that the Application was made within the time limit prescribed by the legislation. I am also satisfied that the Respondent is a constitutional corporation and that the employment of the Applicant is covered by the relevant Modern Award. The Applicant’s annual salary does not meet the high income threshold. The Applicant is protected from unfair dismissal provided that the two jurisdictional issues which are in contention are satisfied; namely that the Respondent is not a small business employer as defined by the Act and that the Applicant was dismissed at the initiative of the employer. These two matters were the subject to extensive submission and evidence.

[5] The Applicant was represented by Anastasia Coroneo of the NT Working Womens Centre. Ms Coroneo is not a lawyer. The Respondent was represented by a lawyer Ms Asha McLaren. I granted Ms McLaren leave to appear.

[6] Evidence for the Applicant was given by:

• the Applicant; 1 and



• Ms Christina Naughton, 2 who was a housekeeping worker at the hotel in the week prior to 14 March 2011.

[7] Evidence for the Respondent was given by:

• Mr Luiz Lopes Gomes, 3 who was the Manager of the hotel throughout the period of the Applicant’s employment in 2010 and 2011.



• Mr Manuel Jesus De Sousa, 4 the owner of the hotel and director of the Respondent.



• Ms Meliame Halafihi, 5 who worked at the front desk reception during the Applicant’s employment in 2010 and 2011. Ms Halafihi’s evidence was confined to the question of whether or not Ms Naughton was visibly upset or not following the confrontation between Ms Naughton and Mr Gomes and Mr De Sousa on 14 March 2011. I did not find that it was necessary to determine whether or not Ms Naughton was upset.



• Ms Feancy Bangsa, 6 who was the Assistant Manager of the hotel throughout the period of the Applicant’s employment in 2010 and 2011. Ms Bangsa gave evidence of the payments received by the Applicant. She also gave evidence that the Applicant was regarded as very good at her housekeeping work but raised some issues concerning her interaction with other employees. This evidence was not relevant given that the performance of the Applicant was not in issue in the proceedings.

[8] English is not the first language of the Applicant nor of Mr Gomes and both of these witnesses clearly had difficulty at times understanding the question put and at times it was difficult to be sure that the answer to questions was able to be clearly understood. I was careful to take this into account during the proceedings and in considering the evidence.

Was the Applicant dismissed at the initiative of the employer?

[9] The evidence established that on 14 March 2011 there was a meeting between Mr Gomes and Mr De Sousa with Ms Naughton and the Applicant. There were also some separate discussions between these parties. The meetings were without notice and were at the initiative of the Respondent. Neither Ms Naughton nor the Applicant worked again for the Respondent after these meetings on 14 March 2011.

[10] Ms Naughton was engaged following a recommendation by the Applicant to the Assistant Manager Ms Bangsa on 28 February 2011. Ms Naughton was friendly with the Applicant over about 15 years. Mr Gomes was on leave at the time of the engagement of Ms Naughton. The Applicant argued that Ms Naughton may have obtained the employment even if she had not made the intervention. There was conflict between the evidence of the Applicant and Ms Naughton on the one hand and the evidence of Ms Bangsa on the other hand about whether or not Ms Naughton had previously submitted her resume to the hotel. It is not necessary to resolve these issues since I am satisfied after considering the evidence that the recommendation of the Applicant was influential in Ms Naughton obtaining employment.

[11] Ms Naughton was a guest at the hotel in 2008 for a period of approximately six months. The owner of the hotel, Mr De Sousa claimed that Ms Naughton failed to pay five weeks’ rent and that some items of equipment were missing when Ms Naughton left the hotel at that time. Ms Naughton strongly denies these allegations. When Mr Gomes returned from leave and discovered that Ms Naughton had been employed by Ms Bangsa he advised Mr De Sousa. Mr De Sousa confronted Ms Naughton on 14 March 2011 and repeated the allegations about her previous time as a guest at the hotel and told her that her employment at the hotel would not be continued. The evidence suggests that at some stage Ms Naughton then said that she was resigning but all of the evidence and the circumstances satisfy me that Ms Naughton was dismissed at the initiative of the Respondent.

[12] Mr De Sousa also confronted the Applicant and criticised her for recommending Ms Naughton for employment when Mr Gomes was on leave. Mr De Sousa also told the Applicant that she was aware of what Ms Naughton had allegedly done when a guest at the hotel. The Applicant denied this to Mr De Sousa and continues to maintain this position. Mr De Sousa also claimed that it was the Applicant who had checked the room after Ms Naughton departed as a guest and provided a list of items which were missing from the room. The Applicant does not recall this.

[13] Inventories of items in hotel rooms are not necessarily an accurate reflection of the items actually in the hotel room at the time a guest stays in that room. Hence even if I was to accept the evidence of Mr De Sousa that items were missing from the inventory I do not believe that this establishes that items were stolen by Ms Naughton. In any case Mr De Sousa did not produce any documentary or other evidence to support his contention. When Mr De Sousa gave evidence he said that a microwave was missing 7 however this was not mentioned in his earlier statement nor was it mentioned in the evidence of Mr Gomes. This raises further doubts about the evidence of Mr De Sousa concerning missing property. Given that Ms Naughton is a friend of the Applicant I find it unlikely that she would not recall telling Mr De Sousa that there were items missing from the room, if such a conversation had taken place.

[14] Ms Naughton denies that she failed to pay some of the rent. Ms Naughton produced a reference 8 which was signed by Mr De Sousa on 17 July 2008 which testified to the fact that Ms Naughton was a good tenant and always paid her rent on time. Ms Naughton gave evidence that this reference was dated one week prior to her departure as a guest of the hotel. Mr De Sousa said that he had written the reference to get rid of Ms Naughton and that its contents were not true and that it was written about three months before her departure from the hotel.

[15] The evidence of the witnesses for the Respondent was that long term rentals occurred during the wet season and not during the dry season when occupancy, charges and demand for rooms was much higher. Ms Naughton gave evidence that her stay began early in 2008 and ended around 24 July 2008. 9 Ms Naughton gave evidence that she had to leave the hotel when it got very busy which is consistent with the July date.10 If Mr De Sousa was correct then the occupancy of Ms Naughton would have been right through the peak season ending in late September 2008. The evidence of Ms Naughton is much more plausible and I accept her evidence on this point. Mr Gomes accepted that Ms Naughton changed rooms at the end of the wet season and then stayed in another room for about three months prior to leaving.11 This is consistent with a July departure date.

[16] I am satisfied that Mr De Sousa correctly testified that Ms Naughton reliably paid her rent up until 17 July 2008 and I am also satisfied that Ms Naughton left the hotel a week later. The Respondent has not established that Ms Naughton failed to pay her rent or stole items when she was a guest of the hotel in 2008.

[17] The evidence of Mr Gomes, the Applicant and Ms Naughton is that Mr De Sousa was angry and shouting when confronting the Applicant and Ms Naughton on 14 March 2011. The Applicant and Ms Naughton gave evidence that Mr De Sousa was very angry. Mr Gomes accepted under cross examination that Mr De Sousa was very angry. 12 However, he also gave evidence that Mr De Sousa tended to raise his voice because he may have problems with his hearing but does not have a hearing aid. Mr De Sousa denies he was angry or shouting or had any hearing problem at all.13

[18] Mr De Sousa also directly contradicted other evidence of Mr Gomes concerning a number of important aspects of who was involved in what conversation and about the content of the conversations. Where there is a conflict between the evidence of Mr De Sousa and others I prefer the other evidence. I did not find that Mr De Sousa listened or recalled matters carefully. Having observed him giving evidence I am satisfied that he was very angry in the meetings on 14 March 2011. I accept the evidence of the Applicant and Ms Naughton that he was shouting and pointing his finger in the Applicant’s face. I accept that the Applicant was scared. 14

[19] The Applicant and Ms Naughton gave evidence that Mr De Sousa said: “I don’t want any Filipinos working in my property as long as I’m alive because they steal things. I am the owner of the property.” 15 Mr De Sousa denied that he said anything about the employment of Filipinos.16 Mr Gomes gave evidence that Mr De Sousa had said something to the effect that he did not want Filipinos working at the hotel as they steal but Mr Gomes says that Mr De Sousa then went on to give three examples of unsatisfactory experiences with Filipino workers and that the Applicant and Ms Naughton were not mentioned as one of those persons.17 I am satisfied that Mr De Sousa did make a statement to the effect that he did not want Filipinos working for him. Even if one accepts the qualification made by Mr Gomes, in the circumstances, I am satisfied that the Applicant could reasonably have understood this to be a statement that Mr De Sousa did not want the Applicant, as a Filipino worker, to continue working. I am also satisfied that the Applicant did understand this to be Mr De Sousa’s intention.

[20] Following the confrontation involving Mr De Sousa, Ms Naughton and the Applicant met with Mr Gomes. There is some difference in the evidence about who was present at which time, however, it is clear that Mr Gomes told the Applicant that she should not come to work for at least the next two weeks and that she should give him a call in two weeks time. There was no explicit undertaking that the Applicant would be able to work in two weeks time. 18 However, I am satisfied that Mr Gomes and Ms Bangsa did put the Applicant on the roster for the week beginning 28 March 2011. The Applicant objected to taking time off work at that time as she had given a long period of notice to the Respondent that she wished to take leave during May to go to the Philippines for her mother’s 90th birthday.

[21] Ms Bangsa gave evidence that she had discussed the proposal to require the Applicant to take two weeks off with Mr Gomes shortly prior to the meetings with the Applicant, Mr De Sousa and Mr Gomes. 19 The conversation allegedly took place before the meeting with Mr De Sousa but after both Ms Bangsa and Mr Gomes were aware that Mr De Sousa was angry about the employment of Ms Naughton. The evidence of Mr Gomes was very clear that the issue of taking leave was not raised until after the meeting between the Applicant and Mr De Sousa.

[22] Regardless of when the idea was developed, I accept Mr Gomes’ evidence that he wanted the Applicant to take time off in order to allow the situation to calm down given that Mr De Sousa was angry and upset with the Applicant. Mr Gomes in his evidence directly linked the request for leave with the “fight” between the Applicant and Mr De Sousa. 20 Mr Gomes and Ms Bangsa also suggested that they wanted the Applicant to take time off because she was unhappy and because they had concerns about her interaction with other employees.21 I do not accept that the Applicant was particularly concerned about the issue of supervision or that this was raised with her on 14 March 2011. However, even if Mr Gomes and Ms Bangsa did discuss the proposal about the Applicant taking leave prior to the confrontation with Mr De Sousa, it was not put to the Applicant until after the confrontation.

[23] I judge that the confrontation with Mr De Sousa has much more significance and importance in determining what the Applicant thought was the Respondent’s view about the future of her employment, than any proposal about taking indefinite leave.

[24] There was considerable agitation during proceedings about whether or not Mr Gomes had said to the Applicant “if you don’t go then I might get sack (sic) by Sammy (Mr De Sousa)”. 22 Mr Gomes gave evidence that he said this to Ms Naughton in the presence of the Applicant, whilst the Applicant and Ms Naughton gave evidence that it was clearly said to the Applicant. Not much turns on this in my view, however, I accept the evidence of the Applicant and Ms Naughton that they believed that the remarks were directed to the Applicant. I am reinforced in this by the fact that in his statement Mr Gomes says that he told Ms Naughton that he might get the sack and “after that the applicant came in and spoke to me”.23 I take this to mean that the Applicant was not present when he made the remark whereas in the proceedings his evidence was that he made the remark when both the Applicant and Ms Naughton were present and that the Applicant must have misunderstood to whom the remark was directed. Even if I am wrong and it was not Mr Gomes’ intention to address his remark to the Applicant, what is important is what the Applicant reasonably understood the message to be. Mr De Sousa says he was present and heard the conversation however all the other participants clearly reject any suggestion that Mr De Sousa was present or could have heard the conversation. I reject Mr De Sousa’s evidence.

[25] I am satisfied that the Applicant did not wish to take leave. 24 I am satisfied that in the context of the confrontation with Mr De Sousa, the Applicant believed that Mr De Sousa, who was clearly the ultimate decision maker and who generally had his way, was ending the employment relationship with her. The Applicant was not confident that Mr Gomes’ instruction for her to take two weeks off and to call in two weeks time changed this situation. When asked why she did not call back she said “why should I? Is because sounds like he wants to get rid of me.”25

[26] The Applicant had good reason to act on the basis that her employment had been terminated at the initiative of the employer. Given the angry behaviour of Mr De Sousa, it was open to Mr Gomes or Ms Bangsa to contact the Applicant to make it clear to her that she was welcome to come back to work. The Applicant put in her unfair dismissal application prior to the expiry of the two week period which is consistent with my conclusions. The Respondent, upon receipt of the unfair dismissal application was aware that the Applicant believed that she had been dismissed. There was no evidence that the Respondent took any action to then contact the Applicant to clear up the “misunderstanding” and seek an immediate return to work.

[27] The Applicant submitted that the requirement to take two weeks’ leave without notice when she was already rostered for work constituted a dismissal. I agree that in some circumstances a requirement that a regular casual worker take such “leave” can constitute a dismissal. I am also satisfied that the Applicant was given no choice by Mr Gomes but to take time off work and that the Applicant had no assurance of work after the two weeks referred to by Mr Gomes.

[28] I have decided that the actions of Mr De Sousa in angrily confronting the Applicant and stating that he did not want Filipinos working for him anymore constituted dismissal at the initiative of the employer. The subsequent actions of Mr Gomes in directing the Applicant to take at least two weeks leave with no commitment to future employment beyond that date was not sufficient to change this situation. It is not necessary to decide if the subsequent requirement communicated by Mr Gomes to the Applicant that she take at least two weeks “leave” and then she might ring could also constitute a dismissal at the initiative of the employer.

[29] There was some suggestion from the Respondent that Mr Gomes directed the time off because it was in the best interests of the “distressed” Applicant. I am satisfied that the totality of the evidence supports the contention that Mr Gomes required the Applicant to take the time off because Mr De Sousa was very angry and did not want the Applicant to continue in employment. I accept that Mr Gomes may have hoped that in a few weeks Mr De Sousa may have calmed down and the situation might be revisited at that time.

[30] There was speculation from the Respondent that the Applicant may have been unhappy working for a young supervisor. Mr Gomes accepted in cross examination that this issue was not raised with the Applicant on 14 March 2011. Having considered all of the evidence, I do not accept that the Applicant was concerned about her supervisor or that this was a factor in the direction by Mr Gomes for the Applicant to take time off or the dismissal of the Applicant by Mr De Sousa.

[31] The Applicant handed in her key when leaving on 14 March 2011. The Applicant made it clear to Mr Gomes that she would probably not be returning. The Applicant said that she handed in her key because “it sounded like they were getting rid of me.” 26 She gave evidence that “its’ because I think I have no job to come back.”27 I accept this evidence. I do not regard these actions as a resignation. However, even if I am wrong the circumstances constitute constructive dismissal as the Applicant reasonably believed that she had no other choice due to the actions of Mr De Sousa. Mr Gomes, even if he may have had the best of intentions, did not do enough to change the situation created by Mr De Sousa.

[32] For these reasons I am satisfied that the Applicant was dismissed at the initiative of the Respondent.

Was the Respondent a small business employer?

[33] The second jurisdictional hurdle in this matter concerns whether or not the Applicant had the required period of service to be protected from unfair dismissal. Assuming that the break in employment in 2009/10 meant that the period of continuous employment was only 8 months, I need to examine whether or not the Respondent is a small business. There is no evidence of any associated employing entities.

[34] The Act provides as follows:

“23 Meaning of small business employer

(1) A national system employer is a small business employer at a particular time if the employer employs fewer than 15 employees at that time.

(2) For the purpose of calculating the number of employees employed by the employer at a particular time:

(a) subject to paragraph (b), all employees employed by the employer at that time are to be counted; and

(b) a casual employee is not to be counted unless, at that time, he or she has been employed by the employer on a regular and systematic basis.

(3) For the purpose of calculating the number of employees employed by the employer at a particular time, associated entities are taken to be one entity.

(4) To avoid doubt, in determining whether a national system employer is a small business employer at a particular time in relation to the dismissal of an employee, or termination of an employee’s employment, the employees that are to be counted include (subject to paragraph (2)(b)):

(a) the employee who is being dismissed or whose employment is being terminated; and

(b) any other employee of the employer who is also being dismissed or whose employment is also being terminated.”

[35] The Respondent employs a manager and an assistant manager on a full time basis. In the main the housekeeping and reception employees are engaged as casuals. Evidence was produced in respect to the payroll for the period from October 2010 until March 2011. Evidence was also produced of the rosters and working hours for several weeks during March 2011. 28 The evidence of Mr Gomes and Ms Bangsa made it clear that new casual employees were hired when other casual employees resigned from their employment.

[36] The hours worked by housekeeping staff will vary depending upon the level of occupancy of the hotel. Generally speaking, occupancy and turnover is higher in the dry season than in the wet season. The evidence presented only covers the wet season period. The evidence presented is that the working hours of casuals will be less during this period.

[37] I have constructed the following table from the payroll evidence presented.

PAID	25/ 10	1/ 11	8/11	14/11	22/11	29/11	13/12	20/12	29/12	4/1	10/1
Bangsa	Y	Y	Y	Y	Y	Y	Y	Y	Y	Y	Y
Coulehan	Y	Y	Y	Y	Y	Y	Y	Y	Y	Y	Y
Gomes	Y	Y	Y	Y	Y	Y	Y	Y	Y	Y	Y
Halafihi	Y	Y	Y	Y	Y	Y	Y	Y	Y	Y	Y
Rodrigues	Y	Y	Y	Y	Y	Y	Y	Y	Y	Y	Y
Humm	Y	Y	Y	Y	Y	Y	Y	Y	Y	Y	Y
Cai	Y	Y	Y	Y	Y	Y
Ayres
Battacharaya	Y	Y	Y	Y	Y
Crompton
Ho	Y	Y	Y	Y	Y	Y	Y	Y	Y
Hsu
Inagaki
Jeongkyu
Kasiaheng	Y	Y	Y	Y	Y	Y	Y	Y	Y
Kuo
Lee
Lu
Macquinto
Mainsbridge	Y	Y	Y
Mather
Mitchell	Y	Y
Naughton
Round	Y	Y	Y	Y	Y	Y	Y	Y	Y	Y
Sung	Y	Y	Y	Y	Y	Y
Sunghee	Y	Y	Y	Y	Y

PAID	17/1	24/1	31/1	7/2	14/2	21/2	28/2	7/3	14/3	21/3
Bangsa	Y	Y	Y	Y	Y	Y	Y	Y	Y	Y
Coulehan	Y	Y	Y	Y	Y	Y	Y	Y	Y	Y
Gomes	Y	Y	Y	Y	Y	Y	Y	Y	Y	Y
Halafihi	Y	Y	Y	Y	Y	Y	Y	Y	Y	Y
Rodrigues	Y	Y	Y	Y	Y	Y	Y	Y	Y	Y
Humm	Y	Y	Y	Y	Y	Y	Y	Y	Y	Y
Cai	Y	Y
Ayres	Y	Y
Battacharaya	Y	Y	Y	Y	Y	Y	Y
Crompton	Y	Y
Ho	Y	Y	Y	Y	Y	Y	Y	Y
Hsu	Y	Y	Y	Y
Inagaki	Y	Y	Y
Jeongkyu	Y	Y
Kasiaheng	Y	Y
Kuo	Y	Y
Lee	Y
Lu	Y	Y
Macquinto	Y
Mainsbridge
Mather	Y	Y
Mitchell	Y	Y	Y
Naughton	Y
Round
Sung
Sunghee

[38] The above table includes all employees who were on the payroll during the period and shows the dates upon which a particular employee was paid during that period. An employee worked during the previous week where a Y appears.

[39] Taking into account all of the evidence I conclude that employees once engaged are put on the roster for work each week until they resign, unless they indicate that they want leave. The hours given to workers each week will vary. Based on the evidence of the Applicant, Mr Gomes and Ms Bangsa I conclude that there were four main causes of the variation in hours between workers and from week to week. Those factors were:

• the level of occupancy and the season,



• the level of experience of the worker in that more experienced workers would have some priority,



• the desire of the individual worker in respect to the hours and days they prefer, and



• the desire to spread work with some equity given these constraints.

[40] Ms Bangsa and Mr Gomes gave evidence that the days and hours worked varied. I accept this evidence. They also suggested that sometimes no work was offered for a whole week. I do not accept this evidence. In this respect I prefer the evidence of the payroll data, the rosters and the evidence of the Applicant.

[41] The evidence from the Applicant, Mr Gomes and Ms Bangsa was that rosters were posted two weeks in advance and generally all workers would be placed on that roster. The rosters submitted in evidence showed that workers who had requested annual leave or maternity leave were shown on the roster as on annual leave or maternity leave but they were not allocated work. Clearly the table above shows that there were a few workers who started work with the Respondent but did not stay very long. However, this does not alter the situation that when they were engaged it was with the mutual expectation that they would be rostered for some work each week. The available hours in a given week may vary from week to week. On occasion employees may request and be granted leave. The roster system, and the inclusion of casual workers on “annual” and “maternity” leave in the rosters, supports this contention. Mr Gomes gave evidence that the employer could rely on the fact that an employee on the rosters was expected to turn up on rostered days. Workers were not called each day for work. 29

[42] I therefore conclude that all workers in the roster pool at the time of the dismissal should be regarded as meeting the requirements to be counted as employees pursuant to Section 23 of the Act. A mutual expectation that the employee will be rostered for some work each week, except where the employee seeks and is granted leave of absence, is sufficient to establish that the employee has been employed by the employer on a regular and systematic basis.

[43] The particular time when the number employed needs to be considered is the time of the dismissal. The Applicant was not rostered to work on the day when she was dismissed, March 14 2011. I have therefore had regard for those who were employed in the last week that the Applicant worked as well as in the following week that is on the day she was actually dismissed.

[44] There are three employees who were not shown as receiving pay in both the relevant weeks (that is paid on March 14 for the previous week and also receiving pay on March 21 for the previous week) who must be counted and they are:

• The Applicant who appears on the roster for March 14 as on “annual leave” and who is counted pursuant to Clause 23(4)(a) of the Act;



• Ms Naughton who does not appear on the March 14 work roster but who is counted pursuant to Clause 23(4)(b) of the Act; and



• Ms Cai also known as Song who appears on the rosters throughout March 2011 as being on “M/L” or maternity leave. 30 Evidence was given that Ms Cai had been a regular and systematic casual employee until taking maternity leave and that it was expected that she would return to work following that leave, however, there was no specific date agreed for a return to work at this time. I deal further with the situation of Ms Cai shortly.

[45] Ms Bangsa confirmed that the Applicant and Ms Naughton were on the roster for work for the next two weeks at the time of the dismissals. Ms Bangsa confirmed that the Applicant and Ms Naughton would have worked those two weeks had it not been for the dismissals. Ms Bangsa accepted that Ms Naughton’s employment would have been ongoing had it not been for the dismissal. 31

[46] The Respondent referred to Ms Naughton as a trainee during the proceedings but I do not accept that was her actual formal status. The evidence taken as a whole is that employees once engaged had an expectation of regular and systematic work. Employment with the Respondent was the only formal job of both the Applicant and Ms Naughton during the period of their employment. Mr Gomes agreed that Ms Naughton and Ms Lee, who were both employed in the week prior to the dismissal, were in fact replacements for two other employees who had left. 32 This makes it clear that they were intended to be employed in the same manner as other employees.

[47] Apart from these three employees, the following twelve employees were on the payroll in both weeks: Bangsa, Coulehan, Gomes, Halafihi, Rodrigues, Ayres, Hsu, Inagaki, Jeongkyu, Kuo, Lu and Mather. This means that a total of 15 employees were employed on a regular and systematic basis at the time of the dismissal. In addition Ms Lee was employed in the last week that the Applicant worked but did not work in the week of 14 March 2011 when the dismissal took place. 33 I have not included Ms Lee in my assessment.

[48] Mr Gomes gave evidence that at least two of the twelve employees referred to above had left employment by the time of the proceedings. However, this means that they were on the roster for some considerable time after the dismissal. There is no evidence to suggest that they were employed on any different basis than other employees - that is they were placed on the roster and received some work each week they were available during the period of their employment.

[49] It is possible that there may be other long term employees such as Ms Ho who may still be regarded as employees whom I have not regarded in my assessment. The Applicant also gave evidence concerning at least two other employees whom she says were employed by the Respondent at the time of the dismissal. This was not supported by the evidence of the Respondent or the documentation provided. I have not included these employees in my assessment.

[50] At the end of the proceedings the Respondent requested the opportunity to make further submissions in response to a case reference raised by the Applicant in their closing submissions. I agreed to the Respondent and the Applicant having the opportunity to put in supplementary written submissions. The supplementary submissions were received on 29 June 2011. The Respondent sought to raise additional evidence in these submissions. Except for one matter, the new evidence raised did not substantially add to or change the evidence before the Tribunal and I advised the parties that I would not have regard to the new material. However, one issue was raised which could affect the jurisdiction of the Tribunal to deal with the unfair dismissal application.

[51] The Respondent attached a purported letter signed by Ms Cai on 24 January 2011 and witnessed by Mr Gomes. The purported letter was addressed to Mr Gomes and Ms Bangsa and stated that:

“I hereby end my contract as a casual housekeeper as of 6 February 2011. The reason to this is because I need to take time away for maternity purposes. If I would like to return to work for Mediteraranean All Suite Hotel, I will need to resubmit applications and start a new contract.”

[52] The Respondent could have raised this issue during the proceedings since the matter of Ms Cai’s maternity leave was the subject of considerable evidence and submissions from both the Applicant and the Respondent. Neither Mr Gomes nor Ms Bangsa gave evidence which supported the position stated in the letter. The evidence before the Tribunal is that Ms Cai was shown on the rosters as being on Maternity Leave and there was an expectation that she would return to work after an undefined period of maternity leave. Mr Gomes said that Ms Cai was on the roster because “she said she’d come back”. 34 Mr Gomes also said: “I didn’t know that she signed the document that she had baby - after baby, come back.”35 Ms Bangsa gave evidence that she expected Ms Cai to return.36 I determined that it was not necessary or appropriate to recall either Ms Bangsa or Mr Gomes. However, I did advise the Respondent that I was prepared to consider giving them the opportunity to present Ms Cai to give evidence and be available for cross examination. The Respondent declined to call Ms Cai. I therefore have no regard to the purported letter.

[53] For the above reasons I am satisfied that the Respondent was not a small business employer at the time of the dismissal of the Applicant.

[54] The Applicant is therefore protected from unfair dismissal.

The period of service.

[55] The Applicant initially argued that the period of service included the periods of employment between 2005 and 2009. This was not pursued at the hearing. Although it is not necessary, or appropriate, to decide the issue, there is a strong argument that these periods of employment should count towards the period of service and hence that the Applicant had more than 12 moths service at the time of the dismissal.

[56] The relevant provisions of the legislation are:

“384 Period of employment

(1) An employee’s period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee.

(2) However:

(a) a period of service as a casual employee does not count towards the employee’s period of employment unless:

(i) the employment as a casual employee was on a regular and systematic basis; and

(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis;

22 Meanings of service and continuous service

General meaning

(1) A period of service by a national system employee with his or her national system employer is a period during which the employee is employed by the employer, but does not include any period (an excluded period) that does not count as service because of subsection (2).

(2) The following periods do not count as service:

(a) any period of unauthorised absence;

(b) any period of unpaid leave or unpaid authorised absence, other than:

(i) a period of absence under Division 8 of Part 2-2 (which deals with community service leave); or

(ii) a period of stand down underPart 3-5, under an enterprise agreement that applies to the employee, or under the employee’s contract of employment; or

(iii) a period of leave or absence of a kind prescribed by the regulations;

(c) any other period of a kind prescribed by the regulations.

(3) An excluded period does not break a national system employee’s continuous service with his or her national system employer, but does not count towards the length of the employee’s continuous service.

(3A) Regulations made for the purposes of paragraph (2)(c) may prescribe different kinds of periods for the purposes of different provisions of this Act (other than provisions to which subsection (4) applies). If they do so, subsection (3) applies accordingly.”

[57] It is clear that the periods when the Applicant did not work for the Respondent between 2005 and mid 2010 were periods which do not count towards the period of service, that is, they are excluded periods. However, it is also clear that “an excluded period does not break a national system employee’s continuous service with his or her national system employer, but does not count towards the length of the employee’s continuous service”. I have already found that when the Applicant was at work as a casual employee she was employed on a regular and systematic basis and she had a reasonable expectation of continuing employment on that basis.

[58] The Respondent gave clear evidence that the Applicant was able to resume her employment after periods of absence on a number of occasions. I am satisfied that on each occasion when she resumed her employment she was offered and performed regular rostered work each week. Periods of such regular and systematic casual employment can therefore count towards the period of service.

[59] The periods of absence from work between 2005 and 2010 were not due to the Applicant being dismissed by the Respondent. There is no evidence that the Applicant resigned from her employment when she took periods of absence from work with the Respondent during the period between 2005 and 2010. In the absence of any such evidence it is likely that the periods of work prior to 2010 should count towards the period of service and therefore the Applicant had a period of more than 12 months continuous service with the Respondent. However, I make no finding about this issue given that it was not pursued by the Applicant and the Respondent therefore did not have the opportunity to produce evidence and submissions to respond to it.

Was there a valid reason for the termination of the Applicant?

[60] As discussed earlier, there were no issues of substance concerning the performance of the Applicant raised by the Respondent and certainly none that could justify a dismissal. The Applicant was never warned about her performance. There was evidence from Ms Bangsa that the Applicant did take sick leave on two days in early 2011, however, it was not contested that these two days coincided with a major cyclone in Darwin and it was the submission of the Applicant that the Government was urging non-essential employees to not travel at that time.

[61] The dispute between the Applicant and Mr De Sousa on 14 March 2011 does not constitute a valid reason for dismissal. There is no suggestion that the Applicant behaved inappropriately in the meetings on that day. The Applicant did not have the power to hire Ms Naughton, although her recommendation was influential in Ms Naughton being hired. However, for the reasons set out earlier I am not satisfied that the allegations against Ms Naughton are justified and therefore I cannot be satisfied that the Applicant was wrong to recommend her for employment with the Respondent.

[62] There was no valid reason for termination of the Applicant.

Was the termination unfair?

[63] I am required by the Act to have regard to the following in determining whether or not the dismissal was unfair.

“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.”

[64] In respect to Section 387 (b) I am satisfied that the Applicant was notified of the reasons for dismissal, namely her recommendation concerning Ms Naughton, that she was Filipino, and that she needed to be away from the workplace to allow the owner of the hotel to calm down. However, those reasons did not constitute valid reasons.

[65] In respect to Section 387(c) I am satisfied that the reason for dismissal related to the conduct of the Applicant and that the Applicant was not given any opportunity to respond to the reason for dismissal prior to the dismissal being implemented. Mr De Sousa was very angry and his manner did not allow any reasonable opportunity for a response. In the circumstances of this case this is a serious breach of procedural fairness.

[66] The Applicant was not denied the opportunity for a support person to be present but as the Applicant was not aware of the nature of the meetings that were to take place she did not have a reasonable opportunity to have a support person present. There was no notice of the meeting. 37

[67] In respect to Section 387 (e) the dismissal did not relate to unsatisfactory performance.

[68] In respect to Section 387(f) the Respondent is a relatively small business, however, this does not excuse the conduct of the owner of the business.

[69] In respect to Section 387(g) the Respondent does not employ an HR Specialist and I have taken this factor into account.

[70] In respect to Section 387(h) I do not consider that there are other relevant matters.

[71] Taking all of these matters into consideration I have found that the dismissal was harsh, unreasonable and unjust and therefore unfair.

Remedy

[72] The Applicant does not seek reinstatement. There was some confusion about this matter in proceedings. I allowed the Applicant to be recalled to clarify her position in respect to this matter given that I formed the view that her earlier evidence was not clear. I took this view having particular regard to the fact that English is not the Applicant’s first language.

[73] The Respondent did not rule out reinstatement as an option. However, given the nature of the altercation between the owner of the business, Mr De Sousa, and the Applicant on 14 March 2011, I accept that the Applicant has a reasonable belief that the relationship is irreparable and that she is not confident that any reinstatement would result in ongoing employment.

[74] I find this a difficult question given that the legislation clearly favours reinstatement. However, in all of the circumstances I do not consider reinstatement would be appropriate. I find that an order for compensation is appropriate.

[75] The Act requires that I consider the following:

“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), 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.

Misconduct reduces amount

(3) If FWA is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, FWA 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 FWA 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 FWA 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.”

[76] The Applicant has not found alternative employment. I accept that the Applicant was planning to take leave from 24 April until 1 June 2011. It is not reasonable to expect the Applicant to be seeking work during that period. I accept the evidence of the Applicant that she has been actively seeking work since 1 June 2011. The Applicant said that it was not practical for her to seek work during the period 14 March 2011 to 24 April 2011. The Applicant said that it would be damaging to her future employability to not advise a prospective employer that she was going on leave and in that situation she would be unlikely to be employed. I accept that there is force in the Applicant’s evidence. The Respondent says that the Applicant, as an experienced worker, could have got short term work in that period. On balance I accept that the Applicant’s actions were reasonable and that she has taken adequate steps to mitigate her loss in the circumstances.

[77] I am satisfied that the order which I make will not affect the viability of the Respondent. Mr De Sousa gave evidence to support this assessment.

[78] The length of the Applicant’s employment with the Respondent is not a significant factor in this case. It is not so short as to adversely affect the likely length of ongoing engagement and it is sufficiently long to have established significant loss upon termination of the employment relationship.

[79] I make no discount for misconduct by the Applicant.

[80] I have not taken into account any “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”

[81] The Applicant was working as a casual employee at the time of the dismissal. The Applicant gave evidence that her hours would have been up to 38 hours each week in the dry season had the dismissal not occurred. The Respondent gave evidence that the hours were likely to be considerably less than 38 hours per week. I take account of the fact that the hotel was moving into the dry season when occupancy rates are higher. The Applicant and the Respondent in submissions accepted that the Applicant had a reasonable expectation of 20 hours work per week on average in the wet season. They differed about the expected hours in the dry season. It was accepted that more hours were available in the dry season, however, the extent of this was not quantified by the Respondent. Given that hours are not guaranteed I have, after considering all the evidence, decided that 20 hours per week is the best estimate of the weekly hours the Applicant could have expected if she had continued in employment.

[82] The Applicant was not planning to be working or in receipt of income from 24 April until 1 June 2011. This period should not be included for the purposes of estimating the loss of the Applicant and the appropriate compensation.

[83] The Applicant did not earn any income during the period between the dismissal and the making of the order in this matter. It is not possible to estimate what the income of the Applicant may be during the short period between the making of this order and the payment of any compensation.

[84] The most difficult factor in this case is estimating what would be the length of employment had the dismissal not occurred.

[85] The Applicant gave evidence that she had decided to give up her permanent position as housekeeping team leader and return to working as a casual housekeeper a couple of weeks prior to the dismissal. The change to casual work occurred from 6 March 2011 so the Applicant only worked one week as a casual housekeeper prior to the dismissal.

[86] There is no dispute that the change was at the Applicant’s initiative. The Applicant says that she requested the change for two reasons: firstly, that the hourly rate for a casual housekeeper was higher than the hourly rate she was receiving as a team leader; and secondly, that she did not want the responsibility of the team leader role. 38 The evidence of Ms Bangsa and Mr Gomes was that the Applicant had asked to be given 38 hours per week as a casual housekeeper. The evidence of Ms Bangsa and Mr Gomes was that they made it clear to the Applicant that they could not guarantee 38 hours per week work. They did concede that the Applicant would get work each week and that she would get some preference for hours given her level of experience but they could not guarantee this would mean 38 hours per week. I accept this evidence.

[87] The evidence of Ms Bangsa and Mr Gomes was that they were concerned that the Applicant would not happily take instructions from a younger and less experienced team leader. This was strongly denied by the Applicant. I accept the Applicant’s evidence as to the reasons for returning to casual work.

[88] Given that I have accepted that a reason for the change in employment status was dissatisfaction with the rate of pay and that the Applicant was not likely to receive the same rate of pay due to the fact that the number of hours she would be offered would be significantly less than 38, I am satisfied that this would have an influence on the length of time the Applicant was likely to remain in employment with the Respondent. An examination of the hours of work of casual housekeeping employees during the six months prior to the dismissal shows that it was rare for such employees to be offered more than 30 hours work per week. I accept that the hours would be likely to increase during the dry season however there is no evidence that this would be significant enough to provide the Applicant with greater income than she had been receiving as a team leader.

[89] Ms Bangsa gave evidence of some tensions between the Applicant and herself and another employee. A complaint from one of the other housekeeping employees was attached to Ms Bangsa’s statement. The employee who complained was not available for cross examination. Although the evidence is insufficient to conclude that there was tension between the Applicant and other employees more generally, I was satisfied from the evidence that there were some tensions between the Applicant and Ms Bangsa which would have affected the length of the Applicant’s future employment with the Respondent.

[90] For these reasons I estimate that the Applicant would have worked a further four months. This period will have elapsed by the time any order I make will have effect. I am satisfied that the Applicant would have no income during this period. Given that I have adopted a conservative view of the number of hours per week I judge that 15% contingency is sufficient allowance for the uncertainty involved in the estimate of the future period of employment and earnings in the short period between the making of the Order and any payment.

[91] The Applicant would have been employed for an average of 20 hours per week for the period from 14 March 2011 until 11 July 2011, a total of 17 weeks. The Applicant was planning to be on unpaid leave for 5 weeks from 24 April 2011 which I deduct from the total period. Therefore, after deducting 15% contingency, I will award compensation of 10.2 weeks at 20 hours per week; a total of 204 hours pay.

[92] The hourly rate referred to in the submissions was $18.61. However this is the casual rate that was applicable to the Applicant in mid 2010. 39 I prefer to rely on the final pay advice. The relevant pay slip is attached to the statement of Ms Bangsa40 and is dated 14 March 2010. The rate is shown as $20.03 per hour for work on Monday to Friday. Greater rates apply on Saturday and Sunday but I will not take this into account given the uncertainty about the frequency of such work. There is also a “district allowance” of 43 cents per hour which is applicable for all hours. There is also $1.84 in superannuation applicable for each hour. The total rate applicable is therefore $22.30 per hour.

[93] I will therefore order compensation of $4,549.20 less appropriate taxation.

[94] I will order that this amount be paid within 14 days.

COMMISSIONER

Appearances:

Ms Anastasia Coroneo of the NT Working Womens Centre represented the Applicant.

Ms Asha McLaren represented the Respondent.

Hearing details:

2011

Darwin

June 23, 24

 1   Exhibit H-1.

 2   Exhibit H-2.

 3   Exhibit M-4.

 4   Exhibit M-8.

 5   Exhibit M-9.

 6   Exhibit M-10.

 7   PN1595.

 8   Exhibit H-3.

 9   PN819 to PN822.

 10   PN852.

 11   PN1137.

 12   PN1362 and PN1371.

 13   PN1646.

 14   PN477.

 15   Exhibit H-1, para 12 and Exhibit H-2, para 8. And PN909.

 16   PN1679 to PN1683.

 17   PN1527 to PN1552.

 18   PN247.

 19   PN1890.

 20   PN1212.

 21   PN1897.

 22   Exhibit H-1, para 14 and Exhibit H-2, para 13.

 23  Exhibit M-4, para 12.

 24   PN238 and PN243.

 25   PN498.

 26   Exhibit H-1.

 27   PN246.

 28   Exhibits M-1, M-2, M-3, M-5, M-6 and M-7.

 29   PN1199.

 30   Exhibit M-1 and Exhibit M-6.

 31   PN1861 and PN1926.

 32   PN1339 to PN1340.

 33   PN1091.

 34   PN1482.

 35   PN1484.

 36   PN1921.

 37   PN457.

 38   PN205 to PN209.

 39   Exhibit H-1, point two of the Employment Agreement.

 40   Exhibit M-10.

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