Mrs Melissa Bell v Moranbah Boxing and Sporting Club Inc. T/A Moranbah Boxing and Sporting Club

[2021] FWC 1357

[2021] FWC 1357

FAIR WORK COMMISSION

DECISION

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

Mrs Melissa Bell
v
Moranbah Boxing and Sporting Club Inc. T/A Moranbah Boxing and Sporting Club
(U2020/7359)

COMMISSIONER HUNT BRISBANE, 12 MARCH 2021

Application for an unfair dismissal remedy – fitness instructor asked to return from work after COVID-19 lockdown – in receipt of JobKeeper payment - not immediately available to resume work – conducted fitness class for fundraising event while unavailable to employer - committee resolved to dismiss – no regard for applicant’s eligibility for maternity leave and paid parental leave - dismissal was harsh, unjust and unreasonable – compensatory relief ordered.

[1] On 27 May 2020, Mrs Melissa Bell made an application under s.394 of the Fair Work Act 2009 (the Act) alleging that her dismissal from Moranbah Boxing and Sporting Club Inc. T/A Moranbah Boxing and Sporting Club (the Respondent) on 26 May 2020 was harsh, unjust or unreasonable.

[2] In her Form F2 – Unfair Dismissal Application, Mrs Bell stated that the reason given to her for her dismissal was her lack of availability. Mrs Bell said she felt the dismissal was unfair as she was available to work and had given notice of her availability. She stated that she had sent numerous emails, with no reply, and that after raising the matter with the Respondent’s human resources team, she was issued with a letter of termination.

[3] On 16 June 2020, the Respondent filed a Form F3 – Employer response to the application. In the Form F3, the Respondent indicated there were no jurisdictional objections to the application. The Respondent stated that Mrs Bell’s employment was terminated because she was retained on JobKeeper payments, but when she was required to return to work she declared herself unavailable for a period of time. Meanwhile, she was continuing to work for another similar organisation in the same capacity, and while also launching her own business in competition with the Respondent.

[4] A conciliation conference was held on 2 July 2020, however the matter did not resolve. The matter was allocated to my Chambers for consideration of the substantive merits of the application. Further background is set out below.

Background

[5] The background of this application has been set out in a Decision [[2020] FWC 4263], which dealt with an application under s.587 of the Act by the Respondent to dismiss the application, made on the basis that the application had no reasonable prospects of success and Mrs Bell had rejected an offer of an amount higher than the compensation that could be awarded to her.

[6] I ultimately dismissed the s.587 application and programmed the matter for hearing of the substantive case, noting that the Respondent had made some late jurisdictional objections.

Legislation

[7] Section 385 of the Act provides that a person has been unfairly dismissed if the Commission 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.

[8] Section 396 of the Act sets out the following:

“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.”

[9] As set out above in s.396 of the Act, a consideration as to whether the dismissal was harsh, unjust or unreasonable cannot occur if the dismissal was consistent with the Small Business Fair Dismissal Code pursuant to s.388 of the Act. It is uncontested that the Respondent employed only 12 employees at the time of Mrs Bell’s dismissal, making it a small business employing less than 15 employees.

[10] Section 388 of the Act provides:

“388 The Small Business Fair Dismissal Code

(1) The Minister may, by legislative instrument, declare a Small Business Fair Dismissal Code.

(2) A person’s dismissal was consistent with the Small Business Fair Dismissal Code if:

(a) immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person’s employer was a small business employer; and

(b) the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal.”

[11] The Small Business Fair Dismissal Code (the Code) provides as follows:

“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.”

[12] The effect of s.385(c) of the Act is that when a dismissal is consistent with the Code, it is not an unfair dismissal and the application must then be dismissed. If the dismissal is not consistent with the Code, the Commission must then consider whether the dismissal is unfair on the basis of the general criteria in s.387 of the Act. The Code deals with “summary dismissal” on the ground of serious misconduct and “other dismissal” on the basis of the employee’s conduct or capacity to do the job.

[13] On 9 July 2020, the following correspondence was sent from my Chambers to the parties:

“….The Commissioner will issue directions for the filing of materials in preparation for hearing.  However, prior to doing so the Commissioner inquires with the Respondent as to whether they are a small business, noting that it is identified on the Form F3 that at the time of the alleged dismissal there were 12 employees only of (sic) receipt of JobKeeper.  If so, does the Respondent wish to submit and raise a jurisdictional objection that the Respondent is a small business employer and that the Small Business Fair Dismissal Code has been complied with?

If the Respondent does not wish to raise this issue, the directions will be issued as to only consider s.387 of the Fair Work Act 2009 in respect to the dismissal.”

[14] On 10 July 2020, Mr Craig Joy of Craig Joy Workplace Consulting replied:

“The Respondent in this matter was a Small Business at the time of the termination of the employment of the Applicant.  They had twelve employees on their books at the time, mostly not in active employment, but on JobKeeper payments.  The Respondent does not contend that the Small Business Fair Dismissal Code is relevant to the termination in terms of the reason or justification for dismissal and does not propose to pursue a jurisdictional objection on that basis.” 

[15] It is clear that the Respondent does not contend that Mrs Bell’s conduct was serious enough to warrant immediate dismissal pursuant to the Code, nor was it for “Other dismissal”. On the evidence before me, I am not satisfied that the dismissal was consistent with the Code, and therefore the matter to be determined is if the dismissal is unfair, having regard to the considerations at s.387 of the Act.

[16] Section 387 of the Act sets out the criteria that must be considered when determining whether a dismissal was unfair:

“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.”

Uncontested facts

[17] Mrs Bell was employed by the Respondent as a casual personal trainer/boxing trainer from mid-2016 until 26 May 2020. The Respondent is a self-funded, committee-run, local, not-for-profit community club. It has been in operation since the 1980’s. The following people hold the named positions within the Respondent, noting that some of these are honorary positions:

•  Mr Paul Withers, President;

•  Ms Jennifer Goostrey, Business Manager;

•  Ms Danielle Newton, HR Advisor;

•  Ms Yolande Dorward, Finance Manager; and

•  Ms Elaine Ball, Joint Secretary and Finance Consultant.

[18] All fitness trainers employed by the Respondent were paid $46.00 per class and covered by the then-Fitness Industry Award 2010 (the Award). The rate paid to Mrs Bell and other fitness trainers exceeded the Award rate of $30.96 per hour as a result of a policy of paying fitness trainers a rate of $46 for each stand-alone session conducted, regardless of the duration of the session. Mrs Bell’s general arrangement was to conduct half-hour sessions back-to-back, such that she would receive the payment of $46.00 for each session, for a total of $92.00 per hour.

[19] In early March 2020, the Respondent determined to reduce the payments to all fitness trainers on the basis that the wages cost across the Respondent was approximately 59% of its operating costs. It wished to have the wages cost reduced to approximately 53% of all operating costs. The committee of the Respondent began consultation with the fitness trainers, advising that new contracts would need to be developed, and that continued employment would be subject to acceptance of the new contracts.

[20] Mr Withers wrote to all fitness staff on 4 March 2020 outlining the proposed changes to the Respondent’s pay practices:

“4 March, 2020

To Fitness Staff

A recent internal audit conducted by the Committee identified 59% of our total income is spent on payroll expenses. This increase prompted further investigation and research into our payroll structure. One of the things we identified was the current trend of the fitness industry moving into more HIIT style workouts (typically lasting under 30 mins) was reflective in our payroll expenses.

Although MBSC employment agreements state the pay rate is $46 per session as they date back to before HIIT style workouts were popular, and in conversion, this means that some instructors who are running these classes are paid equivalent to $92 per hour. Logically, this is not sustainable for a not for profit organisation such as ours.

We understand that the Moranbah Boxing and Sporting Club is essentially a service provider and we highly value our staff and their professionalism. We do however want to ensure the longevity of our great club for the community and being sustainable is something we continue to focus on.

We as a Committee have agreed to adjust the fitness class pay rates to align with the ever evolving fitness industry. The new rates are outlined below:

1 hour class $46
45 min class $33
30 min class $25

Attached is a list of class durations for further clarity.

These rates will be effective from Monday 16 March, 2020. In preparation for this pay adjustment, an amendment to all fitness employment agreements will be issued and signed in order to move forward. We trust you understand the need for these changes.

A fitness staff meeting will be held on Wednesday 11 March, 2020 at 4.30pm in Office #2 to discuss and raise any queries you may have regarding these changes. If you cannot attend this meeting, please arrange an appropriate time with Jennifer Goostrey to discuss.

We would like to thank each and every one of our staff members who make this club one of the most successful clubs in this region and we are proud to have such a strong and supportive team.

Yours sincerely on behalf of the Moranbah Boxing and Sporting Club Inc. Management Committee.

Paul Withers
President
Moranbah Boxing and Sporting Club”

[21] A meeting of fitness trainers was convened on 11 March 2020. The various accounts of the meeting are detailed in witness evidence below.

[22] As a result of the lockdown announced by the Prime Minister on the evening of 22 March 2020, the gym facility was directed to close as of midday 23 March 2020, with all fitness trainers stood down.

[23] On 24 March 2020, Ms Goostrey sent a letter to all staff advising them that as a result of government restrictions in response to COVID-19, the gym would be shut and the employment of staff had been placed ‘on hold’:

“24 March 2020

To All MBSC Staff

RE: GYM CLOSURE DUE TO CORONAVIRUS - COVID-19

As you are aware, the Australian Government has ordered for indoor sporting venues to close from midday Monday 23 March to help stop the spread of coronavirus. The Executive Committee and Management has promptly responded to this instruction and closed the Moranbah Boxing and Sporting Club Inc, until such time the Government advises otherwise.

We understand these unprecedented times is unnerving and the uncertainty of your employment may be concerning. We strongly wish to advise that we have not terminated the business - we have temporary closed the doors. Therefore, we reassure you that your employment with the Moranbah Boxing and Sporting Club Inc. has been placed on hold - not termined (sic).

As we truly value our employees, we wish to provide short term support to assist you as you navigate through these hard times. The Executive Committee and Management have all agreed to offer all casual employees a one-off payment equivalent to 2 weeks, based on an average (taken over your last 6 months of employment). This one-off payment will be paid on Monday 30 March. For those who worked on Monday 23 March, this one-off payment will be paid on top of your normal pay.

To further support you, the Australian Government is providing support for Individuals to assist them during the next six months. Attached Is a fact sheet on income support for individuals. We encourage you to read through the information available.

We advise that access to the gym has now been restricted to everyone. Only those who are required to maintain the upkeep of the facility will have access with an understanding of the restrictions in place. We also wish to advise that equipment loans will not be available.

The health and wellbeing of our employees are of utmost importance. We encourage you to stay up to date with the Government's advice on COVID-19 and please continue to read through the information available on the Queensland Health website will continue to stay connected with our employees during this unusual period. Communication lines will remain open and the Executive Committee and Management will be continuously reviewing our situation.

If you have any questions or concerns, please do not hesitate to call.

Kind regards,
Jennifer Goostrey
Manager
Moranbah Boxing and Sporting Club”

[24] On 26 March 2020, Mr Withers wrote to Mrs Bell advising that she was no longer employed:

“26th March 2020

To Melissa Irving,

RE: Gym Closure Due to Coronavirus – COVID-19

After further consideration and review of the term casual appointment we wish to advise our group fitness team that you are free to work outside of the gym under your own insurance and brand. Moving forward with not being able to offer your services to the gym and to align with casual employee conditions we now advise that you are unfortunately not employed by Moranbah Boxing and Sporting Club due to our forced closure. As we don’t know when this closure will end we hope to see all of you out in the community doing what you do best.

We encourage everyone to be in contact with Jen when the gym reopens to discuss potential future work at the club.

Should you require a separation certificate we are more than happy to provide this to allow you to apply for assistance with Centrelink. Please let us know as soon as possible so we can make this a priority.

We thank you all for your valued time and effort you have put into bringing amazing classes to MBSC and wish you every success in continuing your services to the community.

Kind regards,
Paul Withers
President
On behalf of the Moranbah Boxing and Sporting Club Committee”

[25] Upon the JobKeeper programme being announced on 30 March 2020, the Respondent considered itself eligible and sent out nomination forms to employees, including Mrs Bell. By 19 April 2020, Mrs Bell was enrolled into the JobKeeper programme. All up, 12 employees of the Respondent were enrolled, including those who received the letter above. Presumably, in enrolling its employees in the JobKeeper scheme, the Respondent no longer considered that the employees’ employment had come to an end. Mrs Bell received JobKeeper payments of $1,500 per fortnight backdated to 30 March 2020.

[26] On 18 May 2020, in preparation for reopening the gym, Ms Goostrey wrote to Mrs Bell as follows:

“Hi Mel,

I hope you have been keeping well and safe. I have been excited to hear that we may be able to open the gym doors on June 12. The Committee and myself are putting some plans together now to ensure we are ready to open safely.

With restrictions being lifted as of this weekend we are now allowed to run group fitness classes outside with up to 10 people. I will be working on a timetable this week with the below classes. These classes will be offered for free to all of our gym members only starting next week Monday 25^th May. Can you please let me know what days you are available next week so I can plan accordingly?

The classes I am looking to include will be

•  Meta fit

•  Meta power

•  Meta pro

•  Gym tots

•  Freestyle spin

•  Freestyle HIIT

If your circumstance has changed and you no longer wish to work at MBSC please let me know by Wednesday 20^th May. Alternatively, if you are ready to work I can’t wait to hear back from you.

Regards,

Jennifer Goostrey/Manager”

[27] Mrs Bell replied by email on 19 May 2020 stating:

“Hi Jen
Thank you for the email. It’s a nice relief having restrictions lifted for sure. I would like to know what will be the process of returning to work?
Now that classes are being offered by the gym, Is that the end of the the (sic) job keepers payment?
Do we go back to our original contract?
Do you plan on offering am and pm sessions? (so I know what availability to give you)

Will there be child minding? (Need to know for availability)

Look forward to hearing back

Kind regards,
Mel”

[28] In written closing submissions, Mrs Bell also produced a Facebook messenger message a fitness instructor named Falon appears to have sent to Ms Goostrey. It reads:

“Hi Jen,

Sorry for the late reply. It is good restrictions are easing and things are getting back to normal.

I have a few questions regarding what happens when I come back to work. Does my original contract still stand or do I need to sign a new one? If I need to sign a new one what will the changes be? Also what happens with the job keeper payment does that stop?

I have limited availability next week as I have committed to the fundraiser and have a few appointments in Mackay but I can send you through dates that I could prob run a class or two once you get back to me with the questions above.

Thanks

Falon”

(my emphasis)

[29] Ms Goostrey replied by email on 19 May 2020 to Mrs Bell’s email:

“Hi Mel

Thanks for your reply and interest.

As you are not currently employed by the gym, the process of returning to work will be a new application and a new contract.

I am still working on a timetable so not sure what sessions we will be offering until I get everyone’s availability and until we move to the next stage of lifting restrictions, child minding will not be available.

Regards,

Jennifer Goostrey/Manager”

[30] Mrs Bell replied by email the next morning:

“Good morning Jen

Thank you for the reply, I don’t fully understand the situation of not being employed but still being paid. But that’s ok, I am interested in returning to work however I wouldn’t be available until the 29^th. (Due to Jack’s night shift and appt in Mackay)

I could come in on the 29^th or the 3^rd late in the afternoon to chat about the new contract.

If either of these dates suit let me know.

Kind regards

Mel”

[31] Later that afternoon, Mrs Bell sent a further email to Ms Goostrey:

“Afternoon Jen

I was re reading the very first email saying that gym will open doors again as of the 12^th of June? That’s something to really look forward to as Personal Training will be a tad easier for me to do, especially during the second half of my pregnancy. If you were free to catch up late May early June, before the 12^th, I could give you more clear days of my availability. Its just that Jack is going on to night shift and I still have [name of child] at home as well as [name of child]. I’m super restricted around jacks roster especially having the kids at home and no creche. I would like to catch up and have a more clear understanding of our employment moving to the future.
If your (sic) available on the 29^th of May around lunch time please let me know.
Thanks again
Kind regards
Mel”

[32] On 22 May 2020 at 12:45pm, Ms Goostrey attempted to call Mrs Bell. The phone call was not answered. Ms Goostrey sent Mrs Bell a text which reads, “Please call me back asap”. At 12:53pm, Ms Goostrey again attempted to call Mrs Bell. The phone call was not answered.

[33] On 23 May 2020, Mrs Bell sent the following email to Ms Goostrey:

“Hi Jen

Sorry dismissed your calls yesterday, it was late in the afternoon by the time I had my phone back. I mentioned in my previous email, Jack has just gone back on to 7 night shifts. If your (sic) available on the 29^th I could come down to the gym for a chat.

I look forward to getting back to classes however I’m really not available until the 12^th of June. Which we can talk about when I see you. I didn’t get a reply to my last 2 emails. Not sure if you received them.

Look forward to hearing back from you.

Kind regards

Mel”

[34] An emergency committee meeting was held on the evening of 25 May 2020. The following minutes of the meeting are contested, with Mrs Bell asserting that they may not be a true reflection of what was discussed and agreed:

“Present: Dani, Neil, Paul, Elaine, Mikey,
Apologies: Nil (executive team only)
Meeting Opened at 7pm
Correspondence In - Executive meet

Executive meeting called to discuss group fitness staff Melissa and Tracy

- Jen has received an email back from Tracy stating her unavailability for work

- Jen has sent emails and called Mel twice and send a text message on Friday 22nd with no return call or message.

- Mel responded on Saturday 23rd of May stating her unavailability for work for nearly one month.

- Jen contacted Yolande, Dani and Elaine over the weekend, quite stressed over how to handle this situation with both Group Fitness Staff as she knows they are working across the road at the Moranbah Tennis Club running the same classes they do at MBSC.

- Elaine advised Jen that she has spoken to the ATO regarding eligibility for JobKeeper if an employee is unavailable twice before this and that she would check again with the ATO and Fair Work for advice on the matter.

- Elaine has called ATO for advice and got the same answer, and asked Yo to call Fair Work today, which she did and was told the rules of casual employment don’t change because of JobKeeper. Employers can let go of casuals in the same manner regardless of job keeper if they are not available to work as per their normal hours before the forced Covid closure.

- Elaine has contacted a lawyer (Craig Joy) to also get legal advice on what options we have.

- The executive team have reviewed the situation, and all agree that we do not wish to rehire Mel and Tracy due to both not making themselves available to work as per normal. - Jen is very stressed. We all agreed we need to protect her mental health and support her in progressing forward positively with group fitness staff.

- Elaine and Dani will talk to Craig Joy about writing a letter to both Mel and Tracy to inform them on our decision. Yolande to assist in writing this letter tomorrow.”

[35] At 3:08pm on 26 May 2020, Ms Dorward sent the following letter in an attachment to an email from the Respondent’s “accounts” email account to Mrs Bell:

“Dear Melissa

Due to your lack of availability to work, we are no longer in a position to re-employ you and as per advice from the ATO we are therefore no longer eligible to collect JobKeeper payments on your behalf.

JobKeeper payments will cease immediately and the ATO will be notified in the usual process of reporting.

We wish you all the best in your future endeavours.

If you find yourself suffering from financial hardship the ATO encourages you to apply for JobSeeker payments.

Yours sincerely,

Executive Committee
Moranbah Boxing and Sporting Club Inc.”

[36] Two minutes later, at 3:10pm, or 3:11pm according to Ms Dorward’s copy of the email, Mrs Bell sent the following email to the “accounts” email account:

“Afternoon Yo/Elaine

Sorry not sure who’s where doing what during these times hope all is going well and you’ve enjoyed home time.

I have previous had issues with receiving emails in the past (mainly pay slips) but I’ve emailed manager email address 3 times in regards to returning to work with classes and PTing when the club reopens, trying to arrange a time to come down and chat about availability etc with no communication back. I’m wondering if perhaps the emails haven’t been received?

I know everyone down there is busy trying to re open but if someone could ask the question. I could possibly communicate through a different email address.

TIA, Much appreciated.

Talk soon Mel”

[37] At 3:12pm, Mrs Bell replied to Ms Dorward’s email at [35] as follows:

“ I just emailed before I saw yours. haha.

Thanks Yo

Kind regards Mel”

Hearing of the application

[38] I listed the matter for a telephone hearing of the parties on 1 September 2020. Mrs Bell appeared and gave evidence on her own behalf. Mr Craig Joy of Craig Joy Workplace Consulting was granted leave pursuant to s.596(2)(a) of the Act to represent the Respondent. The following witnesses for the Respondent appeared and were cross-examined:

•  Ms Jennifer Goostrey, Business Manager;

•  Ms Danielle Newton, HR Advisor;

•  Ms Yolande Dorward, Finance Manager; and

•  Ms Elaine Ball, Joint Secretary and Finance Consultant.

Mrs Bell’s evidence

[39] Mrs Bell stated that she was employed by the Respondent from May 2016 as a casual employee, and worked in roles including reception, crèche, floor shift (cleaning), gym tots instructor, group fitness instructor and a personal trainer. Mrs Bell stated that in her four years of employment she provided her availability subject to a number of circumstances which included but were not limited to family commitments, her partner’s rosters and crèche availability, “given the nature of the town and the mining industry”. She said that those factors had always been considerations for providing her availability and had always been acceptable by the employer.

[40] In 2018, Mrs Bell was working predominately as a group fitness instructor while studying to become a personal trainer. She said that during her studies she was required to establish a professional Facebook page, which she established in 2019. Mrs Bell also established an ABN at that time and obtained personal professional insurance. Her evidence is that the Facebook page, ABN and insurance never affected her employment with the Respondent, and it was never raised as a concern by the Respondent, including that there was no conflict of interest concerns ever raised.

[41] In 2019, Mrs Bell was performing group fitness instructor duties, instructing between two and ten classes per week. She instructed the following classes:

•  CX WORX;

•  Thump;

•  Metafit;

•  Meta Pro;

•  Pro SAQ;

•  Bootcamp;

•  Teen Strength; and

•  small group sessions (which she said she would advertise personally for expressions of interest and compile groups of 5 people per class), and each person was required to pay for these classes.

[42] Mrs Bell stated that the Respondent also benefitted from the small group sessions that she ran as the Respondent gained new members and therefore it generated income. Mrs Bell said that her weekly income varied in accordance with the number of classes, being between $100 - $550 per week. Her evidence is that six months prior to the date of her dismissal, she earned $8,054.51 gross.

[43] In January 2020, Mrs Bell was offered extra hours as a membership consultant. Her evidence is that she was asked directly by a committee member to accept this position. Mrs Bell said that at that time, her focus was to establish herself as a personal trainer and to use her qualification as a personal trainer. She said that she started taking on her own clients for personal training sessions, as well as instructing group fitness classes. Between January and March 2020, she had obtained four to five new clients for personal training sessions.

Meeting of 4 March 2020

[44] Mrs Bell noted the 4 March 2020 correspondence as extracted above, whereby fitness instructors were advised there would be an adjustment in pay rates from $46 per session to $25.

[45] Mrs Bell stated that at the meeting of 11 March 2020 where the fitness instructors were being informed of management’s plans to reduce rates for classes, emotions were high, however she denies that there was any hostility. She stated that it was understandable that there was concern and worry with such a drastic rate cut proposed. There were 11 fitness instructors in attendance at the meeting. Mrs Bell denied that she was demonstrating an unwillingness to negotiate the rates, and that she was “egging” on other instructors. Having read the witness statements of the Respondent’s witnesses, she considers that they appear intent on defaming her character which is disappointing as prior to filing her application she considered them to have been her friend.

[46] Mrs Bell noted that after the unsuccessful meeting with the fitness team, the pay reduction was postponed.

Lockdown of gymnasium

[47] Mrs Bell received the written communication above at [23] and [24] at the time the facilities were directed to close. Mrs Bell noted that the letter of 26 March 2020 advised that she should get in touch when the gym reopened to discuss future employment, and she was encouraged to be active in the community in providing her services.

[48] After having been enrolled for JobKeeper by the Respondent, Mrs Bell began receiving JobKeeper payments on 27 April 2020. She said that there was no communication about what was expected, or what the future might look like.

[49] On 18 May 2020, Mrs Bell received the email at [26] requesting her availability. She said however, she was simultaneously being told she was not employed and needed to sign a new contract for employment, per the email sent on 19 May 2020 at [29]. Mrs Bell’s evidence is that she was confused about the arrangement and wanted to know more about the new contract. She wished to discuss what work would now look like, given the restrictions in place due to the COVID-19 pandemic.

Fundraising event

[50] Mrs Bell stated that at the time her availability was requested, she had been participating in a non-for-profit fundraising event for her local radio station, 4RFM. She had agreed to and did instruct three classes on 20 May, 21 May and 28 May 2020. The evidence before the Commission is that the fundraising event was advertised on a 4RFM Fitness Fundraiser Facebook page. On 13 May 2020 the first week’s classes were advertised, including for her classes on 20 and 21 May 2020. Mrs Bell contends that there was no secrecy around her activity, and other fitness instructors employed by the Respondent were conducting classes as evidenced by the timetable.

[51] Mrs Bell said that indoor gyms were still not open at this time, however the Respondent was attempting to schedule outdoor classes per Ms Goostrey’s email on 18 May 2020, with classes commencing from 25 May 2020. Mrs Bell contended that the outdoor classes were attempting to be scheduled with no clear time slots, days or guidelines, and therefore it was hard for her to provide the Respondent with the information it was requesting.

[52] Mrs Bell said that she provided the Respondent the dates of 29 May 2020 and 3 June 2020 to discuss her employment, the requirement to sign a new contract, and her circumstances moving forward, given she was pregnant. Mrs Bell was about 25 weeks pregnant, with an expected confinement of late August 2020. Mrs Bell said that she believed she had a right to discuss the new employment application and the new contract the Respondent was proposing; however she received no response from her manager regarding the dates she was proposing to meet.

[53] Mrs Bell said that in the four years of her employment, she would utilise the crèche and provide classes during crèche hours if her husband was unable to care for her young children due to being at work. She said that when her husband was away for work, she would deliver an occasional pm class, and she did not need to utilise the crèche on those days. Mrs Bell said that in an attempt to provide her availability, she sought information regarding the crèche.

[54] Mrs Bell said that, having received no response to her previous emails, she sent a further email to Ms Goostrey providing “another future date”, in an attempt to provide more dates of availability. She stated that she provided availability around her husband’s roster, as she had done for the past four years.

[55] Mrs Bell said that as no communication was received from management about her return to work or in response to her availability, she reached out to the Accounts/HR department in an attempt to seek clarification around her emails and whether they had been received by the Respondent, so that she could return to work. The email at [36] is the email sent by her at this time.

[56] Mrs Bell said that she received her letter of termination on 26 May 2020, with this decision having been made without any prior communication to her. She said that at the time of her dismissal, in light of the COVID-19 restrictions, she was not an essential worker and had a school-age child at home. Her evidence is that if she had received notification that her availability was insufficient, she could have made an attempt to arrange friends or a family member to watch her children to be able to maintain her employment with the Respondent. Mrs Bell said she would have done all that she could have to keep her job, so that she could continue earning an income and have the opportunity to maintain her employment status, including her entitlement to paid maternity leave. Mrs Bell said that she would also have taken on the position as membership consultant, as had been offered to her at the beginning of the year, and which had never been filled, if this would have ensured her continued employment.

[57] Mrs Bell said that her termination was stated to be ‘due to lack of availability’, however she had never “dismissed, declined, rejected or said no to returning to work”, and further she had provided availability of 29 May 2020 to hold a discussion about the future work arrangements.

[58] Mrs Bell said that on 8 June 2020, the gym reopened and commenced taking classes. Her evidence is that the Respondent has employed several staff, including reception, crèche, group fitness instructors and personal trainers; all of which are roles Mrs Bell says she was capable of performing whilst pregnant.

[59] Mrs Bell further stated that since lodging her application for unfair dismissal, the Respondent has noted her dismissal was for several reasons which were not stated in her termination letter. She stated also that her termination letter was not signed by any member of the committee or management, so she was unable to address this matter to anyone in particular.

[60] Mrs Bell said she was never accused of misconduct and has never before been terminated from employment. She notes her previous employment in the fitness industry between 2010 and 2015.

[61] Mrs Bell said that she was never warned that her availability was unacceptable, nor was she given any notice that her employment was coming to an end. She stated that she was not given the opportunity to try and satisfy the Respondent’s requirements. Mrs Bell said she was not informed that the Respondent’s ‘availability acceptability criteria’ had changed, such that she could no longer work around her husband’s roster or use the crèche as she had done for the past four years. Mrs Bell said she also was not given the chance to discuss returning to work, in light of her circumstances being 25 weeks pregnant.

[62] Mrs Bell stated she was never warned or spoken to by the Respondent regarding any form of misconduct, or about her business page, her ABN, her availability or her requirement to use the crèche.

[63] Mrs Bell also noted that pursuant to the JobKeeper programme, her weekly wages were covered; it was essentially at no cost to the Respondent to keep her employed and work with her around her availability.

Alleged unfair treatment

[64] Mrs Bell noted that while Ms Goostrey sought availability from the fitness team on 18 May 2020, other employees did not return to work inside the gymnasium until many weeks later, while maintaining their employment and continuing to receive JobKeeper payments. An employee named Leah who required to use the crèche did not return to work until 13 July 2020. An employee named Sacha returned to work on 10 June 2020 for the first “Sprint” session since the lockdown, and an employee named Catherine returned on 9 August 2020 for her first class.

[65] Relevant to the text message sent by Ms Goostrey to Mrs Bell on 22 May 2020 at [32], Mrs Bell stated that her phone had been left at home with her husband who was trying to sleep at the time as he was on night shift. Where Ms Goostrey gives evidence that she saw that the message had been immediately read, and in her view, ignored, Mrs Bell stated that she did not have her phone and did not know that there were two missed calls and a text message until late that afternoon. Mrs Bell contends that if it is expected that she should have reacted so quickly to calls and a text message, the Respondent should also have responded to her many emails that were ignored.

[66] As to steps to mitigate her loss, Mrs Bell says that since her dismissal she has volunteered her time as a fitness professional in hope of securing work in the fitness industry post-partum. She said she has also been in communications with other potential employers about work post-partum. Since filing her application, she notes that her spare time has been consumed in preparation for her conciliation, preliminary teleconference and the hearing of the matter.

Oral evidence given at hearing

[67] During the hearing, Mrs Bell stated that when her husband works night shift, he would typically arrive home by 6:00am and go to bed at 7:00am. He would sleep until 4:30pm – 5:00pm and leave home about 5:15pm to work until 6:00am. She stated that this shift work limited his ability to care for their young children.

[68] When Mrs Bell conducted the fitness class for the charity event on 28 May 2020, her husband looked after their children. She stated that she would have arrived at the event at around 8:30am, and the class commenced at 9:15am, running for about one hour. When she arrived home, her husband went back to sleep; she continued care for the children.

[69] Mrs Bell conceded that she could have performed a fitness class shift on 29 May 2020 if the Respondent had communicated that.

Mrs Bell’s submissions

[70] Mrs Bell submitted that her dismissal was without notice and was not due to any breach of her employment contract or misconduct. She submitted that she was asked to provide her availability but was at the same time advised she was not employed by the gym and that return to work would be subject to a new contract of employment. She submitted that while she sought to meet with the Respondent on 29 May 2020 or 3 June 2020 to discuss any return to work, she did not receive any response.

[71] Mrs Bell submitted that the Respondent advertised positions, which she was qualified to perform and had performed in her past years of employment with the business.

[72] Relevant to JobKeeper payments, Mrs Bell noted the Respondent asserted to her, “your JobKeeper payments had stopped due to direction of the ATO, on the basis that you had declared yourself unavailable” and “you would not have been entitled to the Job keeper payments as your eligibility had already been revoked by the ATO”. Mrs Bell said however, if this were the case, it was on the basis of false information provided, or lack of due diligence on behalf of the Respondent.

[73] Mrs Bell referred to the “JobKeeper Payment: Changes to the Fair Work Act” Fact Sheet, and submitted that the Respondent should have followed the ‘JobKeeper Enabling Stand Down Direction’ to keep her employed:

“Jobkeeper Enabling Stand Down Direction

If an employee cannot be usefully employed for their normal days or hours because of changes to business attributable to Coronavirus (and associated government initiatives), an employer may make a JobKeeper Enabling Stand Down Direction (Stand Down JED) which directs an employee to:

•  not work on particular days they would ordinarily work; or

•  work for a lesser period than they would ordinarily work on particular days; or

•  work a reduced number of hours (including nil hours).”

[74] Further, Mrs Bell submitted that she was employed for a wider capacity than just a group fitness instructor, noting she was also a personal trainer. She said that as a personal trainer, there was no requirement for providing availability, as session times and days are arranged between trainer and client. She submitted that a position was published to the Respondent’s Facebook page on 3 June 2020. The positions available in the advertisement are:

•  Personal trainers

•  Group fitness instructors

•  Group fitness co-ordinator

•  Yoga instructor

•  Pilates instructor

•  Casual reception

[75] Mrs Bell said she clearly fit the criteria of being able to perform the role of personal trainer, receptionist and group fitness instructor. This advertisement was placed less than one week after Mrs Bell’s dismissal.

[76] Having reviewed the outdoor fitness schedule published on the Respondent’s Facebook page, it demonstrates the following instructors participated in a class in the following weeks:

(a) Week 1: 25 May 2020 – 31 May 2020:

•  Simone

•  Jayden

•  Rhiannan

•  Andrew

•  Falon

(b) Week 2: 1 June 2020 – 7 June 2020:

•  Simone

•  Jayden

•  Rhiannan

•  Andrew

•  Falon

•  Jen

[77] The timetable for the week prior to the nationwide shutdown lists the following names:

•  Simone P

•  Simone M

•  Andrew

•  Falon

•  Kelly

•  Melissa (the Applicant)

•  Sacha

•  Melanie

•  Tracy

•  Kelli

•  Catherine

•  Alina

[78] Mrs Bell’s earlier submissions speak to the fact that employees such as Sacha and Catherine did not return to work commencing 25 May 2020 and retained their employment, but then returned to work much later.

[79] Mrs Bell noted that the Respondent has submitted: “She does not have the right to require them to hold work for her while she works for some other entity. She does not have the right to force out other employees who have accepted the available work.” Mrs Bell acknowledged that she was volunteering in a local charity event, which was made public on 13 May 2020 and was scheduled to end 31 May 2020. She acknowledged that the Respondent sought availability from 25 May 2020, however Mrs Bell said she was not the only employee who was volunteering her time. She said that other employees declared themselves unavailable due to the charity event, yet still currently hold employment.

[80] Mrs Bell submitted that on 3 July 2020, crèche employees were requested to provide availability to return to work, and she said that one employee was unavailable until 20 July 2020. Mrs Bell said that employee was given an opportunity to complete a leave form; and to the best of her knowledge, this employee remains employed. She said this is another example of her being treated differently to other employees.

[81] While noting that the CX WORX class has ceased, Mrs Bell submitted that she is qualified to instruct all classes on offer by the Respondent, except for RPM/Sprint. She noted that she is the only instructor qualified for the CX WORX class; therefore, the Respondent had no choice but to stop offering it.

[82] Mrs Bell notes that prior to her dismissal, she had advised the Respondent that she was 25 weeks pregnant and was looking forward to focusing on personal training, being a more suitable activity during the remainder of her pregnancy. She submitted this may have come as an inconvenience to the Respondent at the time, and the Respondent may have considered it easier to terminate her employment and therefore made that decision without any communication, notice, or warning to her of any kind. Mrs Bell noted that she was emailed a termination letter with no warning, or any opportunity for her to satisfy the Respondent that she should maintain employment. Further, that termination letter was not signed and therefore she could not address the matter to anyone in particular.

[83] Mrs Bell submitted that while there may not have been positions available as a group fitness instructor, she could have continued to generate business for the Respondent by sourcing clients for personal training sessions, or otherwise working elsewhere in the gym.

[84] Mrs Bell submitted that she never rejected, declined or refused work, and any suggestion of this by the Respondent is a harsh misrepresentation. She submitted that she sent correspondence, seeking further information from the Respondent such that she could provide her availability. She said that she had looked forward to returning to work, which she had communicated in several emails to Ms Goostrey.

[85] Mrs Bell also noted Ms Goostrey’s evidence that she was suffering high stress levels, found it difficult to respond to emails, and could not wait until 29 May 2020 to discuss with Mrs Bell her availability. Mrs Bell submitted there was no reason Ms Goostrey could not have sent her a text message agreeing to meet on 29 May 2020. Mrs Bell maintained that if the conversation was had on that date, suitable availability could have been provided to the Respondent.

[86] Noting employees’ retention on JobKeeper payments, Mrs Bell submitted that her continued employment came at no expense to the Respondent. She noted that the Respondent was not operating at its usual or full capacity, with limited classes on offer at the time the availability was requested. She submitted that if the Respondent had exercised patience, understanding, compassion or due diligence, it could have utilised all of her skills wherever they were required, once the club was fully operational or offering more classes.

[87] Mrs Bell submitted that without first viewing a COVID-19 safe plan, and noting it was her right to return to a safe work environment, she had sought a meeting to discuss these matters. She understood that pregnant women are not classified as ‘high risk’, however on advice from QLD health and the QLD government, she said that requesting a meeting to discuss these matters seemed reasonable and fair.

[88] Mrs Bell submits that the termination of her employment was harsh, unfair and unreasonable, and that the criteria in s.387 of the Act regarding harshness have been met in satisfaction of her dismissal being unfair.

Remedy sought

[89] Mrs Bell stated that reinstatement is not a viable or healthy option for her mental wellbeing. She submitted she has made three attempts to seek a settlement from the Respondent, totals that were a lot less than she would have been entitled to if employed by the Respondent.

[90] Mrs Bell submitted that she should be compensated the maximum amount of compensation available being $19,500.00 which is 26 weeks’ pay at $750.00 based on her eligibility for the JobKeeper scheme and the ability to claim paid parental leave. Mrs Bell stated that if she had not been unfairly dismissed, she would have worked for 13 weeks before commencing maternity leave. At $750 per week x 13 weeks, she would have received $9,750.00 (gross).

[91] Mrs Bell submitted that the harsh nature of the termination has had a further impact, in that she is no longer able to claim paid parental leave which would have seen her eligible for $740.60 (gross) per week for 18 weeks. This is an amount of $13,330.80 gross that is not available to her on account of having been dismissed two weeks before she became eligible. Mrs Bell has made inquiries to Centrelink to seek an exemption, however this has presently been denied, she stated as exemptions are typically given for dangerous work or illness.

[92] Mrs Bell stated that she is able to reapply at a later date, if there is a finding that her dismissal has been unfair.

[93] Mrs Bell also made submissions to the effect that the Respondent’s witnesses had provided false information during the hearing, and in their witness statements filed in these proceedings. Mrs Bell also questioned the minutes of the 25 May 2020 meeting as provided by the Respondent; stating that the metadata from the pdf minutes document provided shows that it was edited by Mr Joy on 29 September 2020. Mrs Bell notes that she would have expected the minutes to be created by Ms Ball or Ms Newton, who are committee secretaries, and also questions the time at which the notes were created, being some months after the actual meeting.

Respondent’s evidence

Evidence of Ms Yolande Dorward

[94] Ms Yolande Dorward, Finance Manager for the Respondent, filed a witness statement in these proceedings and was cross-examined during the hearing.

[95] Ms Dorward noted that Mrs Bell’s remuneration benefits included the following:

•  Blue card renewals;

•  First aid and CPR training

•  Fitness training (including course, travel and accommodation expenses);

•  Free family gym membership; and

•  Use of the crèche while working.

[96] Ms Dorward said that the total hours worked by Mrs Bell are:

•  211 fitness sessions (most sessions were 30 mins);

•  5 personal training sessions (1 hour); and

•  14.5 hours worked other than instructing fitness sessions.

[97] She stated that Mrs Bell only instructed CXWORX, METAFIT and small group fitness (similar to circuit training/bootcamp).

[98] When the Queensland Government announced the ‘Stage 1 Easing of Restrictions’ on 15 May 2020, the Respondent planned on reopening and commenced outdoor group fitness classes on 25 May 2020 with limited staff. She said that only one new staff member was employed due to the unavailability of other employees. Ms Dorward said that this new employee did not instruct classes that Mrs Bell would normally instruct.

[99] The Respondent no longer holds CXWORX classes because Mrs Bell was the Respondent’s only qualified CXWORX instructor and therefore it gave notice to permanently suspend the licence for CXWORX.

[100] Ms Dorward said that on 26 May 2020 at 3.08pm, after a decision made by the committee to terminate Mrs Bell’s employment, she emailed Mrs Bell a letter advising that due to her lack of availability to work, the Respondent was no longer in a position to re-employ her and as per advice from the ATO, the Respondent was therefore no longer eligible to collect JobKeeper payments on her behalf. The email was sent to two email addresses to which Ms Dorward said Mrs Bell had previously provided to receive her payslips. She wanted to ensure that she received the correspondence.

[101] Ms Dorward said that at 3.11pm that same day, she received an email from Mrs Bell, reproduced at [36]. Due to having sent her a termination letter only minutes earlier, Ms Dorward chose not to reply. One minute later Ms Dorward received a response from Mrs Bell stating she had emailed Ms Dorward before she had seen the email sent to her.

Oral evidence at the hearing

[102] Ms Doward stated that she is not part of the executive committee but is part of the general committee. She was not present at the meeting on 25 May 2020 but was asked to type the termination letter sent to Mrs Bell on 26 May 2020.

[103] In cross-examination she agreed that fitness instructors would typically take time off work around their family responsibilities, and the group fitness timetable was often more lean during school holidays.

Evidence of Ms Jennifer Goostrey

[104] Ms Jennifer Goostrey, Business Manager for the Respondent, filed a witness statement in these proceedings and was cross-examined during the hearing. In addition to being the Business Manager for the Respondent, she is also a fitness instructor and personal trainer.

Proposal to reduce fitness class rates

[105] On 4 March 2020, on behalf of the President of the Respondent, Ms Goostrey sent an email to the fitness team, reproduced at [20]. In response, on 5 March 2020, Mrs Bell requested a committee member attend the meeting planned for 11 March 2020, to hear the fitness team’s concerns about the rate adjustment. Ms Goostrey responded, requesting Mrs Bell write down her concerns, and invited her to bring them to the meeting. Ms Goostrey said Mrs Bell replied again, insisting that a request for committee members to attend the meeting be made.

[106] Ms Goostrey stated that as the Business Manager, she was communicating with everyone the best she could, while trying to bring everyone together in an open discussion with herself, the committee and the fitness team. She wanted to make sure everyone was able to communicate and express their concerns, ideas and questions as one team.

[107] Ms Goostrey stated the Respondent is a non-for-profit club that aims to be sustainable for the long run, and in order to achieve the longevity of the club they had to review wages expenses which at that time were extremely high. She said that the purpose of the meeting was to get everyone together, to discuss options and reconsider, as needed, the best way to have a sustainable future for the group fitness team. Her evidence is that the cost of group fitness for the four-year period leading up to March 2020 showed a dramatic increase, including an increase in the number of classes offered and an increase in 30 minute classes, which reflected fitness industry trends. Ms Goostrey stated that a change was needed, and she and the committee thought that as a successful, strong team, this issue could be navigated.

[108] Prior to the meeting, Ms Goostrey attempted to contact Ms Tracy Bromley, the Group Fitness Coordinator, to discuss the changes, however she was unsuccessful in reaching her.

[109] The meeting took place on 11 March 2020, to discuss the relevant changes. Ms Goostrey said that during this meeting, the fitness instructors expressed their concerns and shared their suggestions. Her evidence is the meeting was hostile and volatile. She said that Mrs Bell made it quite evident that she did not agree with the changes, nor the reason for the changes, and kept interrupting peoples’ discussions. She attested to Mrs Bell declaring that fitness instructors do more than what personal trainers do in terms of studying and physically instructing the class, rather than just standing there telling someone what to do.

[110] Ms Goostrey stated that after taking note of the fitness team’s concerns and suggestions, it was decided the Respondent would retrain the current pay rate of $46 per class and hold another meeting with just the committee to review the fitness team’s concerns and suggestions and discuss the best outcome for both the club and staff in order to remain sustainable and keep fitness instructors working.

[111] On 18 March 2020, Ms Goostrey and the executive committee held a meeting to discuss the best option going forward regarding the pay rate for group fitness classes. She said that after a lot of discussion, a decision was made to lower the pay rate to $41 per class regardless of the class duration, but to remove six classes from the timetable. She said this decision was entirely made by the executive committee. In this meeting it was suggested by an executive committee member that one-on-one meetings with fitness instructors would be more personal and not so conflicting as some instructors had come to Ms Goostrey after the meeting saying they felt uncomfortable in the meeting due to the hostility from some fitness instructors and felt that they were pressured to do what those instructors wanted. Ms Goostrey noted this would also provide a confidential space, to meet its responsibility as an employer.

[112] Ms Goostrey stated that a fitness instructor went to see her and told her of group messages on Facebook between the fitness team, created by Mrs Bell. She was uncomfortable with the messages and didn’t believe they reflected what had been said at the meeting. The staff member said that they did not want to be involved in the group message discussions, however wanted to continue working in their role.

[113] On 22 March 2020, Ms Goostrey sent an email to all fitness staff advising she would be holding one-on-one meetings with each fitness staff member to discuss the pay rate decision. In this email Ms Goostrey provided her availability to which they could book their suitable time. She said that she received responses from a few instructors saying they did not want to meet individually and would not be, stating they would only come as a group; Mrs Bell was one of these staff members.

[114] Having regard to some of the concerns raised by employees, that same day, Ms Goostrey sent a further email advising she would put the individual meetings on hold until she could seek advice from the executive committee.

Lockdown

[115] That evening, the lockdown announcements were made effective from 12 noon on 23 March 2020. She sent an email to all staff advising of the closure, reproduced at [23]; she did not receive any responses. In light of not receiving a single response, she was concerned that she may have had technical issues and sent another email requesting all staff to confirm receipt. She said she still did not receive any responses.

[116] Ms Goostrey said she was concerned, and therefore sent out individual emails. Mrs Bell responded to her on 25 March 2020 at 2:35pm asking if her employment was on hold and whether that meant that she could operate as her own entity for the interim. Ms Goostrey responded to the effect she would raise this with the executive committee, but that she was sure they would be fine with her doing so. Ms Goostrey said that further to a discussion with the executive committee, it was decided that a letter be sent out to stand down staff so that they could work outside of the Respondent’s business without breaching their contracts and the code of conduct. The letter to Mrs Bell is reproduced at [24].

[117] Ms Goostrey’s evidence is that Mrs Bell replied and requested a separation certificate, and asked whether this would affect the COVID-19 support payment the executive committee had provided, being a payment of two weeks’ wages. Ms Goostrey replied that the separation certificate application on the Centrelink website had been removed and was not required at the time. After providing this information, Mrs Bell insisted she receive a separation certificate.

[118] Ms Goostrey said that at that time, she had a number of people call asking if they had been fired and she was told there were rumours going around that the Respondent was wanting to pay fitness instructors $20 a class. She said this increased her “already high stress levels” and she tried to ignore them and do her best to adhere to the ever-changing government directions.

[119] On 9 April 2020, Ms Goostrey received an email from Mrs Bell asking whether management would reach out to all staff in relation to JobKeeper payments. Ms Goostrey forwarded the email to Ms Dorward who subsequently sent an email on the matter.

Resumption of fitness classes

[120] Following the announcement for an ease on restrictions which would allow outdoor group fitness activity, with the potential of indoor gyms reopening with restricted numbers on 12 June 2020, Ms Goostrey sent an email to all fitness staff on 18 May 2020 at 8.58am advising the Respondent was able to offer outdoor group fitness classes to members. She said that they offered these fitness classes free to all members and non-members of the community to help people who had not been doing any exercise or activity during the COVID-19 lockdown. As not all people had jobs or were getting any payment from the government, “and being the reputable community club that we are”, Ms Goostrey stated they were happy and willing to offer this service for free, and she was excited to be able to get the fitness classes going again. The email is produced at [26].

[121] On 19 May 2020 at 12.52pm, Ms Goostrey received an email from Mrs Bell at [27], with a number of questions, particularly regarding what services were being offered so that she could work on her availability and whether she would be returning on her old agreement or not. Ms Goostrey said that she replied that night, at 7.19pm, advising that as Mrs Bell was not currently employed by the gym, the process of returning to work would require a new application and a new contract.

[122] She also told Mrs Bell that she was working on a timetable, so she was not sure what sessions would be offered until she was in receipt of everyone’s availability, and until they moved to the next stage in lifting restrictions. Ms Goostrey said she “clearly advised” that child minding services would not be available.

[123] Ms Goostrey received a response from Mrs Bell on 20 May 2020, advising she did not fully understand the situation of not being employed but still being paid. Ms Goostrey said this in evidence:

“I gathered she didn’t quite understand the process nor purpose of Jobkeeper.”

[124] She noted that Mrs Bell had said she would not be available until 29 May 2020 to discuss her availability due to her husband’s roster and personal appointments in Mackay. She had also offered 3 June 2020 to meet. Ms Goostrey said at this time, she was working with all the other instructors and the timetable to sort out who could work and what the rules and regulations were. She stated that it was “very frustrating” to be continuously emailing backwards and forwards, when she “clearly started (sic) [she] needed [Mrs Bell’s] availability”.

[125] Ms Goostrey said she received another email from Mrs Bell in the evening of 20 May 2020, whereby she advised she was really looking forward to returning as a personal trainer as it would be more suitable for her in her second half of her pregnancy. She asked if Ms Goostrey was free to catch up late May/early June and that she would be able to provide more clarity on her availability before 12 June 2020.

[126] Ms Goostrey said she understood and respected that, given the impact of COVID-19 with home schooling, a husband on roster and the lack of child care availability would be hard, however with her enthusiasm expressed in her communications, Ms Goostrey said she was hopeful Mrs Bell would be able to assist with the reopening of the gym, even if it was limited assistance. She noted that Mrs Bell again said she would like to catch up and have a clearer understanding of her employment moving forward, and requested to catch up on 29 May 2020.

[127] Ms Goostrey’s evidence is that due to the outdoor group fitness starting from 25 May 2020, she “could not wait until 29 May 2020”, as she was required to organise the first week of the Respondent’s fitness classes reopening which she considered she had clearly communicated. Ms Goostrey said that as she was in the middle of organising group fitness instructors’ availability and interest in returning to work, emailing was becoming a difficult means of communication. She said that it was easier to call and discuss directly with employees, so she could slot in their availability and get the classes sorted so that they could go ahead, advertise and reopen.

[128] Ms Goostrey said that she tried calling Mrs Bell twice on 22 May 2020, at 12.15pm and then at 12.40pm; the calls were not answered. Ms Goostrey also sent to Mrs Bell a text message at 12.45pm, asking for a return call ‘ASAP’. It is Ms Goostrey’s evidence that she saw the “read” receipt on the message straight away, which she states means that Mrs Bell had her phone and read the message. She considered that Mrs Bell was deliberately not answering her calls.

[129] I note that the evidence at [32] demonstrates that the sequence was a telephone call at 12:45pm, a text message at 12:45pm and a second phone call at 12:53pm. I accept this evidence as correct based on documents cited by me.

[130] On 23 May 2020, Ms Goostrey received a further email from Mrs Bell apologising for dismissing her calls and that it was late in the afternoon by the time she had her phone back. Mrs Bell again requested to catch up on 29 May 2020, and noted that she was not available to work until 12 June 2020.

[131] Ms Goostrey said the following:

“It was at this point my stress levels and pressures on reopening the business with COVID safe practices along with limited staff was high. We offer, and always have offered, fitness classes 7 days a week. As my multiple requests for Melissa's availability via email and phone calls was met with her only availability for a chat and further advising she wouldn't be available for 3 weeks, it was difficult to reopen the business with limited staff.

The business was closed for 9 weeks and I was focussing on providing a service to the community which gave an opportunity to assist with people's health and wellbeing which may have deteriorated during lockdown.

At the end of the day Melissa's termination was based on her not being available to work when it was clear that we needed staff to be available to run fitness classes.”

[132] Ms Goostrey said that after Mrs Bell’s termination, she became aware that Mrs Bell had made herself available to run a fitness class for another entity on 28 May 2020, during the period when she had advised she was not available to work.

Oral evidence given at hearing

[133] In cross-examination, Ms Goostrey was asked why she did not inform Mrs Bell that her job was in jeopardy on account of her unavailability. Ms Goostrey stated, “Your job wasn’t in jeopardy. You just weren’t available for the dates we asked you for, but you were available for another company.”

[134] She stated that Mrs Bell’s availability was not the availability the Respondent was looking for. She considered that Mrs Bell had been ignoring her calls on 22 May 2020. She was aggrieved that Mrs Bell could respond to emails, but not answer her calls.

[135] When asked why she couldn’t communicate her concerns to Mrs Bell, Ms Goostrey said that at that point in time she was busy trying to organise a few instructors. Mrs Bell was emailing back saying that she was not available to discuss her availability until 29 May 2020.

[136] She considered that other fitness instructors were contacting her with their availability. She stated, “Everybody came back and gave me their availability.” She stated that Mrs Bell purposely was not available and was ignoring her calls. She stated that at this time the Respondent was having issues with its emails. Her preference was to have phone calls or use Facebook messenger.

[137] Ms Goostrey stated that she knew that Mrs Bell was involved in the fundraiser as she had seen her picture on a flyer. She said that it was after 28 May 2020 that she knew that she did the class on that day.

[138] In cross-examination she stated that during the executive committee meeting on 25 May 2020, Ms Newton stated that on 22 May 2020, Mrs Bell had sent her a text message; she put it around 15 minutes after Ms Goostrey had sent Mrs Bell a text message and considered that it had been ignored. Mrs Bell stated in response that she was three doors down from her home helping a friend pack up home.

Evidence of Ms Danielle Newton

[139] Ms Danielle Newton, HR Advisor to the Respondent, filed a witness statement in these proceedings and was cross-examined during the hearing. She has held the position of Acting Secretary since January 2020. It is an honorary position.

[140] Ms Newton stated that following the letter of 4 March 2020 being sent to all fitness staff proposing a reduction in pay rates, Mrs Bell sent her a text, requesting to catch up after school pick up. Ms Newton agreed to meet with her. At that catch up, Mrs Bell expressed concerns about the new pay rate. Ms Newton said that they discussed how and why the pay rates were reviewed; however Mrs Bell wasn't happy with the change, which Ms Newton said she understood.

[141] Ms Newton provided a comparison of the payment, stating that Mrs Bell could earn $92 per hour doing two 30-minute classes back-to-back, whereas being a qualified relief school teacher she earns only $79 per hour. Mrs Bell responded that when she has classes there is preparation required before and after the class, as well as planning. Ms Newton explained that every job has that responsibility, including in her role as a school teacher.

[142] Ms Newton informed Mrs Bell that she did not agree to continue the payment at $46 per session. Mrs Bell asked her if she was attending the meeting on 11 March 2020, to which she replied that she wasn’t as a couple of committee members were attending. However, since Mrs Bell asked her to attend, she said that she would go.

[143] Ms Newton attended a meeting of 11 March 2020, in the capacity of Acting Secretary. She said she initially ‘took the lead’ at the meeting, and Ms Dorward had provided her with a report to outline exactly what all of the Respondent’s staff received as their remuneration package. She presented this document at the meeting, and invited the staff to discuss their concerns, noting a potential to open the floor for the fitness team to share their ideas of how the Respondent could save money on group fitness wages.

[144] Ms Newton stated that while presenting this document, Mrs Bell interrupted her a number of times to express her concerns. Ms Newton said Mrs Bell to let her finish this document, informing her she would be able to speak afterwards. Her evidence is that Mrs Bell was very worked up and not receptive to listening to the Respondent’s proposal.

[145] Ms Newton’s evidence is that this meeting was quite hostile, and a few of the staff members were vocal, including Mrs Bell, crudely voicing their opinions that the Respondent’s decision was wrong. Ms Newton said that Mrs Bell declared that the group fitness staff deserved their current rate, as she believed the group fitness team were a big reason for high member numbers at the gym. Ms Newton said that a number of times in that meeting, she reassured the staff that it was no way a personal attack on them as the Respondent valued their contribution to the club, however the Respondent could not continue to pay these rates in order to remain a sustainable community not-for-profit club moving forward.

[146] Ms Newton said that at the end of that meeting, the fitness team were advised to disregard the proposed new pay rates, noting that the status quo would remain until the executive committee could meet again to review their suggestions and see if they can make any other changes in order to be able to pay them more per session, whilst still focussing on business costs.

[147] Ms Newton said that Ms Kelly Vea, one of the fitness instructors, turned to another fitness instructor, Ms Tracy Bromley, and said, “Ok so does that mean we are all continuing to do classes for now?” Her evidence is that Ms Bromley replied, “Yes”. Ms Newton said she understood from this that fitness staff were going to do a mass exit from the Respondent’s business if it had said these changes were set to go ahead.

[148] Ms Newton stated that once the group fitness staff had left the meeting room, the committee members had an immediate meeting to review this decision and take on board suggestions of the staff, including that many would like a “class rate” rather than a time-based rate. Ms Newton noted that Ms Sacha Hoare, one of the group fitness staff members, had suggested investigation of this option, and she further said many staff members agreed they would be happy to lower the rate down to around $40 per class. Ms Newton said that the committee decided to reduce the overall number of classes per week by cancelling six classes from the timetable; and the Respondent could then offer $41 per class with less classes, which would keep staff happy and reduce the Respondent’s overall costs.

[149] Ms Newton stated that after the meeting on 11 March 2020, she did not have any other interaction with Mrs Bell. She said that the next time she heard from Mrs Bell was on 22 May 2020, when she received a text saying she was thinking of her and that she hoped she was well, which Ms Newton said was in regards to her family, not the business. Ms Newton said she responded on 1 June 2020, saying she hoped Mrs Bell was well too, and that she would have a newborn here in no time. Mrs Bell responded on 1 June 2020 confirming her pregnancy was flying by and hoped to catch up soon. Ms Newton said this was the last time that she and Mrs Bell had any interaction.

Oral evidence given at hearing

[150] Ms Newton stated that Mrs Bell’s email regarding her unavailability was shared between the executive committee members. Following that, a meeting was held, and the decision was made to dismiss her.

[151] She stated that it was known that Mrs Bell was instructing at a class for the fundraising event. It was considered that she was available for that work, but wasn’t available for work at the gym.

[152] Ms Newton was asked why it wasn’t put to Mrs Bell that there were concerns about her unavailability and she was at risk of losing her job. Ms Newton stated that Ms Goostrey wanted to progress with everyone that was available, and not progress with anybody that was not available.

[153] In coming to the decision, Ms Newton stated that she had regard for the fact that termination of Mrs Bell would result in her no longer being able to access JobKeeper payments. She did not have regard for Mrs Bell’s eligibility for paid maternity leave.

[154] Ms Newton was asked if there would be any adverse risk to the Respondent if Mrs Bell was not available until 12 June 2020, given the payment to Mrs Bell was not costing the Respondent any money? Ms Newton said the only cost would be to employ other instructors who weren’t on JobKeeper; they would have cost the business money.

Evidence of Ms Elaine Ball

[155] Ms Elaine Ball, Joint Secretary and Finance Consultant on the Executive Committee for the Respondent, filed a witness statement in these proceedings and was cross-examined during the hearing.

[156] Ms Ball stated the Respondent is a self-funded, committee run, local not-for-profit community club that has been operating since the 1980’s. Ms Ball said that, as a service industry business, wages are one of the Respondent’s largest operational expenses. Over the last three or four years it has continually reported high wages in its yearly audited financial statements and in the 2019 financial year, reported wages as 60% of its overall costs.

[157] Ms Ball said that following advice from the Respondent’s ‘Accountant/Auditor’, the business looked into ways of reducing wages to a more sustainable level, at around 53%. Ms Ball stated the business had already made changes in the operational staff, by increasing permanent positions. She said that the Respondent mostly employs casual workers, not as a business strategy but due to the dynamics of a mining town, and noting most of its employees are mothers with young children who are only looking for casual work. Ms Ball said that the Respondent pays above award wages as a strategy to retain staff.

[158] Ms Ball’s evidence is that after reviewing wages in the third quarter of the 2020 financial year, the Respondent discovered they were still sitting at around 59% which prompted the business to look into the costs of its group fitness sector. She said the business planned on reducing the timetable because it had become too large, with some classes attracting low numbers, and there was inconsistency in class times and remuneration. As an example, she noted Mrs Bell was doing back-to-back half hour classes paid at $92.00, and other instructors doing an hour's class paid at $46.00.

[159] Ms Ball’s evidence confirmed the 4 March 2020 letter sent to staff regarding pay rates, and the meeting called the following week for discussion and questions. Ms Ball said the letter was intended as a point to start negotiation, however it was received badly. She described the meeting on 11 March 202 as hostile and unproductive. She said that Mrs Bell was continuously interrupting, had no intention of negotiating anything and tried to “egg on” other staff members to do the same. Ms Ball stated however, the group’s concerns were raised, and some practical suggestions made by some members of staff which were noted and discussed at the committee meeting following the staff meeting. At the end of the meeting, fitness staff were asked to disregard the previous letter and the committee would “go back to the drawing board”.

[160] Ms Ball said that on 18 March 2020, several options were presented to the committee based on suggestions made by fitness staff. The committee voted to do the following:

[248] For all of the above reasons, I am not satisfied there was a valid reason for the dismissal.

s.387(b) - Whether the person was notified of that reason

[249] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment, 4 and in explicit5 and plain and clear terms.6

[250] Mrs Bell was informed that the reason for the dismissal was due to her unavailability. She was not informed that there were other reasons the Respondent maintained warranted her dismissal.

[251] I consider that Mrs Bell was informed of part of 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

[252] Mrs Bell was intent on engaging with Ms Goostrey by email on 19 May 2020, 20 May 2020, and 23 May 2020. She offered on numerous times to meet to discuss what Ms Goostrey was labelling the new arrangements, together with her availability.

[253] Mrs Bell had no awareness that a decision was being made by the executive committee to dismiss her. She was not offered any opportunity to learn that her employment might be in jeopardy. The decision was made with very little information before the executive committee and no input whatsoever from Mrs Bell. Ms Goostrey’s attempted telephone calls to her were not to discuss the potential of her termination from the Respondent; they were to understand her availability.

[254] I am not satisfied Mrs Bell was given an opportunity 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 the dismissal

[255] Mrs Bell was dismissed by way of a letter attached to an email. Accordingly, there was no discussion relating to the dismissal. There was no unreasonable refusal by the Respondent to allow Mrs Bell a support person because no meeting occurred.

s.387(e) - Was there a warning of unsatisfactory work performance before dismissal

[256] Neither party has stated that there was any prior unsatisfactory work performance before the dismissal. A crude suggestion was made that Mrs Bell was more intent on promoting her own activities over and above the Respondent, but no evidence was given on this suggestion.

s.387(f) - Whether the respondent’s size impacted on the procedures followed and s.387(g) - Whether the absence of a dedicated human resource management specialist impacted on the procedures followed

[257] I have had regard for the Respondent’s activities and the nature of the Respondent’s business, being a community organisation. Where some of the executive committee members have HR experience in their usual occupation, it was ultimately an executive committee decision that resulted in the dismissal.

[258] The meeting minutes note that Ms Ball had contacted Mr Joy for advice, stating that he is a lawyer. It is my understanding that Mr Joy is not a lawyer; rather he is a paid agent.

[259] I consider that the small size of the Respondent’s business and the absence of an employed dedicated human resource management specialist impacted on the procedures followed.

s.387(h) Other matters

[260] I have had regard to the fact that Ms Goostrey was, in my view, impatient to see Mrs Bell terminated from the Respondent. Whilst her evidence is that she couldn’t afford to wait for Mrs Bell to be available in the first week of scheduling, the truth of the published timetables and the accommodations afforded to other employees demonstrates that there was no need for such urgency.

[261] Mrs Bell’s employment was not costing the Respondent any money; it was all covered by JobKeeper payments. As I have said earlier, I do not consider that anybody was engaging in a rort. If it took some employees a few days or weeks longer to make arrangements to their family circumstances in order to return to work, the Respondent did not appear to be impacted.

[262] In fact, the Respondent set about on 3 June 2020 advertising for a large number of roles. A number of those roles could competently be performed by Mrs Bell. It makes no sense to dismiss Mrs Bell, whose wages are more than covered by JobKeeper payments until late September 2020, to hire a new employee whose wages would, at that time, be covered by the Respondent.

[263] I have had regard to the fact that Mrs Bell was expecting to become eligible for government-funded paid maternity leave. The eligibility required is as follows: 7

“To get Parental Leave Pay you need to have worked for both:

•  10 of the 13 months before the birth or adoption of your child

•  a minimum of 330 hours, around 1 day a week, in that 10 month period.

Keep in mind, we count 10 months as 295 days and 13 months as 392 days.

Periods of JobKeeper Payment also count as work.

…..

For periods of JobKeeper Payment, we count whichever of the following is greater:

•  7.6 hours for each weekday in the period, not including weekends

•  the number of hours actually worked each day, including weekends

•  the number of hours of paid leave each day.”

[264] Despite the Respondent’s submissions, it is my view that Mrs Bell would have become entitled to parental leave pay but for being dismissed. On her account, she was roughly two weeks shy of the “10 of the 13 months before the birth or adoption of your child” test. I accept this, given the dismissal was approximately three months from the expected confinement and subsequent birth.

[265] Despite the Respondent’s calculations of hours worked by her in the year prior to the dismissal, I am satisfied that her receipt of JobKeeper payments well and truly moved her into an entitlement on the minimum of 330 hours, particularly noting the test is the “greater of”, and it provides for 7.6 hours for each weekday in the period.

[266] The evidence before the Commission is that not one person had regard for Mrs Bell’s expectation to be eligible for parental leave pay when the decision to terminate her was made. That is incredibly disappointing. This is further compounded by the fact that dismissing Mrs Bell took away from her the opportunity to take maternity leave from the Respondent, with the ability to return to her role after the birth of her child, if she wished.

[267] I have had regard to Ms Goostrey’s obvious unsophistication around employment law where she informed Mrs Bell by email that returning from the lockdown would result in a new application and a new contract, and informed her that she wasn’t employed. I consider that there was some confusion because just as the lockdown commenced, the Respondent communicated with employees that they had been dismissed, but obviously reneged on that once the JobKeeper programme was announced. That was an understandable reaction.

[268] I appreciate that part of Mrs Bell’s discussions she was hoping to have with Ms Goostrey was around this concept, together with ensuring when she returned to work she could do so safely, given the risk of contracting COVID-19.

[269] It appears to me that not much thought was given to appropriately utilising employees once lockdown ended. Whilst employees were in receipt of JobKeeper payments, JobKeeper enabling directions could have been issued to some employees to perform relevant tasks. For example, Mrs Bell could have been required to perform some work from home relevant to membership once the gymnasium re-opened, if crèche unavailability was an issue. The cost would be borne by the JobKeeper programme, and Mrs Bell’s skills included membership. If Mrs Bell was unable to instruct classes for some number of weeks, she might have been asked to perform other administrative tasks from home, equivalent to the typical hours she worked prior to March 2020.

[270] I accept the evidence of the Respondent’s witnesses that Mrs Bell was, at the meeting of 11 March 2020, an antagonist to the Respondent’s suggestion for a reduction in fitness class rates. Having heard from Mrs Bell during the proceedings and reminding her not to cut off witnesses while they were speaking, I accept that she was very vocal and hostile during the discussion. Ultimately the rates were not reduced, and to-date have not been reduced.

[271] Whilst it a post-dismissal consideration, the inference has been made that Mrs Bell immediately read her termination letter by email and within two to three minutes sent an email trying to cover her availability. I do not accept such an inference, as it would have required Mrs Bell to immediately review the termination letter and draft a response all in a very short period of time. On the balance of probabilities, I find that Mrs Bell was already drafting her email and in time that she was drafting it, coincidentally, the termination email was received by her. Her email to the accounts email was truthful and did not in any way embellish her activity over the days earlier.

[272] Curiously, Mrs Bell took the news of termination very well in the email she sent in response. It is, in my view, a bizarre email to reply upon being informed of termination of employment.

Conclusion

[273] I have determined that there was not a valid reason for the dismissal.

[274] I consider that Mrs Bell was informed of part of the reason for the dismissal.

[275] I am not satisfied Mrs Bell was given an opportunity to respond to any reason related to her capacity or conduct.

[276] There was no unreasonable refusal by the Respondent to allow Mrs Bell a support person because no meeting occurred.

[277] There was no prior unsatisfactory work performance before the dismissal.

[278] I consider that the small size of the Respondent’s business and the absence of an employed dedicated human resource management specialist impacted on the procedures followed.

[279] I have had regard to the other matters I consider are appropriate to take into consideration.

[280] I determine that Mrs Bell’s dismissal was harsh, unjust and unreasonable.

Remedy

[281] 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.”

[282] Mrs Bell 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.

[283] Mrs Bell does not seek reinstatement due in part, she stated to her mental wellbeing. I am satisfied that it is inappropriate to order reinstatement.

[284] I now turn to consideration of compensation.

Compensation

[285] 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

[286] 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.⁸ 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;⁹ Jetstar Airways Pty Ltd v Neeteson-Lemkes¹⁰ and McCulloch v Calvary Health Care (McCulloch).¹¹

[287] 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 the respondent

[288] The Respondent has submitted that this is not a relevant consideration.

The length of Mrs Bell’s service

[289] Mrs Bell had approximately four years’ service with the Respondent. This is not an extensive period of time.

The remuneration that Mrs Bell would have received, or would have been likely to receive, if she had not been dismissed

[290] I have determined that Mrs Bell would have remain employed until one week before her expected confinement in late August 2020. This is a period of 13 weeks. She would have received an amount of $750 per week at the JobKeeper rate for this period of time.

[291] I do not consider it appropriate, in the circumstances to adjust this amount on account of the advice said to have been received by the Respondent from the ATO, or on account of the Respondent being unable to recover this amount from the ATO.

[292] The Respondent’s actions of so promptly dismissing Mrs Bell in a harsh manner do not warrant, in my view, any discount from what would have been her expectation; a continued payment pursuant to the JobKeeper programme of $750 per week (at no cost at that time) to the Respondent.

[293] I do not consider it appropriate for Mrs Bell to have to wear a discount on account of the Respondent’s actions. That is, I do not think it is appropriate to reduce the amount to Mrs Bell’s pre-March 2020 earnings because that is not what she would have earned in June, July and August 2020.

[294] At a rate of $750 per week for 13 weeks, the amount is $9,750 gross.

The efforts of Mrs Bell (if any) to mitigate the loss suffered because of the dismissal

[295] Mrs Bell was approximately 25 weeks pregnant with her third child at the time of the dismissal. She had two young children at home during a time when school was returning to class lessons after a period of home schooling. Her husband is a shift worker. I accept that it was difficult for Mrs Bell to look for alternative work. Her submissions that she was busy preparing for the hearing are not accepted; all applicants are busy preparing for their hearing.

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

[296] Mrs Bell has not received any remuneration.

The amount of any income reasonably likely to be so earned by Mrs Bell during the period between the making of the order for compensation and the actual compensation

[297] This factor is not relevant in the circumstances of this matter.

Other relevant matters

[298] I do not consider it appropriate to make any award of superannuation on top of the amount to be awarded on account of the payment being equal to the JobKeeper payment and the uncertainty as to how many hours of work Mrs Bell might have performed between late May 2020 and late August 2020.

Misconduct reduces amount

[299] Section 392(3) of the Act 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.

[300] 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.¹²

[301] I am not satisfied that Mrs Bell engaged in any misconduct. Specifically, I do not consider her failure to inform the Respondent of her instruction of the fundraising class on 28 May 2020 to constitute misconduct. Accordingly, no deduction is made.

Shock, distress etc. disregarded

[302] 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 Bell by the manner of the dismissal.

Compensation Cap

[303] 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.

[304] The high income threshold immediately prior to the dismissal was $148,700, and the amount for 26 weeks was $74,350. The amount of compensation the Commission will order does not exceed the compensation cap.

Payment by instalments

[305] This is not an appropriate consideration given the size of the Respondent.

Order of compensation

[306] I have determined that the Respondent is to pay to Mrs Bell the amount of $9,750 gross less tax as required by law within 14 days of the date of this decision.

[307] An Order of compensation [PR727736] will be issued concurrently with this decision.

COMMISSIONER

Appearances:

Bell M, Applicant.
Joy C, for the Respondent.

Hearing details:

1 September 2020, by Telephone.

Printed by authority of the Commonwealth Government Printer

<PR727731>

 1   [2020] FWC 3915.

 2 (1995) 185 CLR 410, [465].

 3   Sayer v Melsteel[2011] FWAFB 7498 at [20].

 4   Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.

 5   Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).

 6   Ibid.

 7   (1998) 88 IR 21.

9 [2013] FWCFB 431.

10 [2014] FWCFB 8683.

11 [2015] FWCFB 2267.

12 Crawford v BHP Coal Pty Ltd [2017] FWC 154, [345] – [346]; Read v Gordon Square Child Care Centre Inc. [2013] FWCFB 762, [83].