Mrs Nardia Luckman v HP Bowral Pty Ltd T/A Highlands Property

[2016] FWC 1250

[2016] FWC 1250

FAIR WORK COMMISSION

DECISION

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

Mrs Nardia Luckman
v
HP Bowral Pty Ltd T/A Highlands Property
(U2015/11305)

COMMISSIONER RIORDAN SYDNEY, 3 MARCH 2016

Application for relief from unfair dismissal.

[1] This decision relates to an application by Ms Nardia Luckman for an unfair dismissal remedy against HP Bowral Pty Ltd Trading as Highlands Property (Highlands).

[2] Ms Luckman was employed by Highlands on 5 May 2008 and was terminated on 20 August 2015. Ms Luckman had two years employment with the predecessor of Highlands, namely, Elders.

[3] Ms Luckman represented herself in the proceedings. Highlands was represented by its General Manager, Mr Peter Walker.

[4] Highland has 20 employees.

[5] Ms Luckman attested to a witness statement on her own behalf. Highlands relied on witness statements from a number of employees;

Mr Peter Walker,
Ms Victoria Turchan,
Ms Sarah Wotter and
Ms Kate Johnson.

[6] Ms Luckman advised the Fair Work Commission (Commission) that she was not seeking reinstatement but compensation, on the basis that she could not work for Mr Walker again if he had lost trust in her. Mr Walker opposed reinstatement on the basis that he had lost trust with Ms Luckman, which he claimed, would not be possible to re-establish.

Background

[7] Ms Luckman has undertaken a number of roles throughout her career at Highlands including Property Manager, Supervisor and Assistant Financial Controller. Ms Luckman’s role meant that she had a portfolio of properties to manage, including sales and leasing. Ms Luckman worked 25 hours per week.

[8] The evidence shows that Ms Luckman had a good working relationship with Mr Walker and her peers. Ms Luckman’s work colleagues enjoyed working with Ms Luckman and there were no problems or issues that could be identified.

[9] Ms Luckman was a part time employee. Ms Luckman was of the view that she had a full time workload on the basis that she was managing a similar number of properties as a full time employee and made a complaint about the issue with Mr Walker.

As a result of this complaint, Ms Luckman’s workload was reduced to a proportionate level. Ms Luckman claims that she was overlooked for three new positions that were created in late 2014 and early 2015.

[10] On 13 August 2015, Ms Luckman was advised that she would be managing two new properties. Ms Luckman objected to this request on the basis that she did not sell the properties, even though they were within her portfolio, because the purchasers made enquiries when Ms Luckman was not at work. This meant that Ms Luckman did not receive the commissions associated with the sales. Ms Luckman was upset that she had not been asked to complete these sales and did not believe that it was fair that, after missing out on the sales commissions, she should have to do the extra work of managing the properties when there has been no payment.

[11] Later that day, Ms Luckman was invited to a meeting within Mr Walker. Mr Walker explained to Ms Luckman the reasons why the two properties were being transferred to her and advised that such a transfer of work was not unusual or uncommon. Ms Luckman disagreed. Ms Luckman accepted that she was angry and hostile during the meeting and that she had been open and forthright with her views and feelings throughout the 25 minute meeting. It is not in dispute that Ms Luckman made comments along the lines of “I’m done, I’m over it, I’m out of here” at the conclusion of the meeting.

[12] Mr Walker was shocked at the way he was treated by Ms Luckman during the meeting. Mr Walker claims that Ms Luckman was disrespectful to Highland and that her attitude and her conduct were unacceptable and inexcusable.

[13] It is accepted by the parties that there was no inappropriate or foul language used by either party during this meeting nor was there any threatening or abusive behaviour.

[14] Following the meeting at 1:31pm, Ms Luckman sent the following email to Mr Walker;

“Pete,

Further to our meeting today as I feel there is nothing more to discuss it would be appreciated If the files could now be handed over so I can continue the management of those properties.

Thankyou (sic).”

[15] This email clearly shows that Ms Luckman had calmed down and was now ready to follow the instruction to manage the two properties in question.

[16] Mr Walker responded in the following terms at 2:11pm;

“Thanks Nardia, I will send you both an email.

You may feel there is nothing more to discuss, but there is. It’s nothing to lose sleep over But I will make time for us to meet again.”
(my emphasis)

[17] Mr Walker also sent an email to Ms O’Callaghan at 2:12pm requesting that she hand over the properties to Ms Luckman to manage.

[18] Ms Luckman was invited to a further meeting with Mr Walker on 20 August 2015. Ms Kate Johnson was invited to attend this meeting and support Ms Luckman. Ms Luckman was terminated during this meeting by Mr Walker who read the termination from a prepared letter at the start of the meeting:

“Dear Nardia

This letter confirms the termination of your employment effective today, 20 August 2015.

This termination is being made for reasons of misconduct as detailed in our meetings on 13 August 2015 and 20 August 2015.

The required termination notice for an employee with your length of service is four weeks. Payment of four weeks' salary will be made to you in lieu of working for that period. Your termination payment, which will include any entitlements owing, will be transferred today.

It is necessary for us to recover anything in your possession that belongs to Highlands Property, such as your iPad and office key. Please ensure they are given to the Office Manager before you leave.

Yours faithfully,

Pete Walker
General Manager
Licensee in Charge”

[19] Mr Walker admitted that he did not provide Ms Luckman with an opportunity to respond.

Statutory Provisions

[20] When determining whether Ms Luckman’s dismissal was harsh, unjust or unreasonable I am required to take into account the provisions of section 387 of the Fair Work Act 2009 (the Act) which state:

“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.”

[21] Serious misconduct is defined in the Act to mean:

“1.07 Meaning of serious misconduct

(1) For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.

(2) For subregulation (1), conduct that is serious misconduct includes both of the following:

(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;

(b) conduct that causes serious and imminent risk to:

(i) the health or safety of a person; or

(ii) the reputation, viability or profitability of the employer’s business.

(3) For subregulation (1), conduct that is serious misconduct includes each of the following:

(a) the employee, in the course of the employee’s employment, engaging in:

(i) theft; or

(ii) fraud; or

(iii) assault;

(b) the employee being intoxicated at work;

(c) the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.

(4) Subregulation (3) does not apply if the employee is able to show that, in the circumstances, the conduct engaged in by the employee was not conduct that made employment in the period of notice unreasonable.

(5) For paragraph (3)(b), an employee is taken to be intoxicated if the employee’s faculties are, by reason of the employee being under the influence of intoxicating liquor or a drug (except a drug administered by, or taken in accordance with the directions of, a person lawfully authorised to administer the drug), so impaired that the employee is unfit to be entrusted with the employee’s duties or with any duty that the employee may be called upon to perform.”

Legal Precedent

[22] The joint judgement of McHugh and Gummow JJ in Byrne v Australian Airlines is of significance when reviewing whether a termination was harsh, unjust and unreasonable:

“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted…

Procedures adopted in carrying out the termination might properly be taken into account in determining whether the termination thus produced was harsh, unjust or unreasonable…” 1

[23] The judgment of Northrop J in Selvachandran v Peteron Plastics Pty Ltd elucidated the meaning of 'valid reason' in s 387(a):

“In its context in s.l70DE(l ), the adjective "valid" should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s.l70DE(l ). At the same time the reasons must be valid in the context of the employee's capacity or conduct or based upon the operational requirements of the employer's business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must 'be applied in a practical, commonsense way to ensure that the employer and employee are treated fairly'.”  2

[24] In Rode v Burwood Mitsubishi 3 a Full Bench of the Australian Industrial Relations Commission made the following observations:

“The reason for termination must be defensible or justifiable on an objective analysis of the relevant facts. It will not be enough for an employer to say that they acted in the belief that the termination was for a valid reason.”

Analysis of section 387

a) Valid reason

[25] Ms Luckman was dismissed for “misconduct” when she allegedly showed disrespect and defiance to Mr Walker and to Highlands during the meeting of 13 August 2015. It is not alleged that Ms Luckman swore at Mr Walker, spoke in a demeaning tone to Mr Walker, spoke disparagingly to Mr Walker or threatened Mr Walker. I have taken this into account.

b) Notified of Reason

[26] Ms Luckman was notified that she had been terminated for misconduct. I have taken this into account.

c) Opportunity to respond

[27] Mr Walker admitted that Ms Luckman was not given the opportunity to respond to any allegation. Ms Luckman was advised by Mr Walker by email on the afternoon of 13 August (see above) that they needed to have a further discussion but “there was nothing to lose sleep over”. At their next discussion, Ms Luckman was dismissed. I have taken this into account.

d) Support person

[28] I note that Mr Walker invited Ms Johnson to be Ms Luckman’s support person. I have taken this into account.

e) Satisfactory performance

[29] Ms Luckman’s dismissal does not relate to any unsatisfactory performance.

f) Size of the Employer

[30] Highlands is a real estate business in a popular regional town in the Southern Highlands of NSW. Highlands employs 20 individuals and should have appropriate and documented human resource policies. I have taken this into account.

g) Lack of Human Resource Management

[31] Highlands does not employ a HR manager or specialist but is a member of the relevant employer association. I have taken this into account.

h) Any other relevant consideration

[32] I note that Ms Luckman has an exemplary performance record with no verbal or written warnings being issued to her throughout her career. I have taken this into account.

[33] I note that shortly after the meeting on 13 August 2015 concluded, Ms Luckman emailed Mr Walker to ask for the extra files to be handed over. I have taken this into account.

[34] Ms Luckman accepted that she was angry and hostile at the meeting. Ms Luckman described the meeting as a “full and frank discussion” on a range of employment issues. I have taken this into account.

[35] I have taken into account that Ms Luckman was well liked by her peers.

[36] I have taken into account that the alleged misconduct of Ms Luckman did not fall into any description identified in regulation 1.07 of the Act.

Consideration

[37] I have taken into account all of the evidence and submissions that I have been provided with by the parties. Mr Walker acknowledged that he did not provide Ms Luckman with an opportunity to respond to the allegation of misconduct and therefore failed to provide Ms Luckman with the required procedural fairness.

[38] I also doubt that the alleged conduct of Ms Luckman in the meeting of 13 August 2015 was a valid reason for her termination.

Robust discussions between employees and employers are a part of the Australian industrial landscape. The notion of master/servant where an employee was not allowed to question the decision of the employer disappeared with the industrial revolution. The possible suggestion of an argument that Ms Luckman refused to follow a lawful instruction evaporates on the evidence of the email from Ms Luckman to Mr Walker on 13 August 2015 where Ms Luckman asks for the extra files to be transferred to her portfolio. I have taken this into account.

[39] I am disturbed by the misleading response to this email by Mr Walker. It is not appropriate or fair for Mr Walker to advise Ms Luckman that “it’s nothing to lose sleep over” and then terminate her employment one week later without additional cause or correspondence. Mr Walker states that he has “never been somebody who rushes decisions”. As such, Ms Luckman was entitled to believe that he was telling the truth and that there was nothing to worry about. I have taken this into account.

Determination

[40] I am unable to find a valid reason to substantiate the decision to dismiss Ms Luckman. The accusation of misconduct by Mr Walker is not “sound, defensible or well founded.” The meeting on 13 August 2015 was a robust discussion where an employee had the courage to voice her disapproval over the way that she perceived that she had been victimised over the last four years. The mere fact that there was no swearing or threatening language used solidifies the view that Mr Walker’s decision to terminate Ms Luckman’s employment was a monumental over reaction.

[41] Having found that there was no valid reason for the dismissal I am not required to determine the merits of the remaining provisions of s.387. However, it was accepted by Mr Walker that he did not provide Ms Luckman with the required procedural fairness requirements of the Act. Also, the other relevant considerations identified above would provide further evidence to support the claim that Ms Luckman’s termination was harsh. If Mr Walker was disappointed with the way Ms Luckman treated him in the meeting on 13 August 2015, then perhaps he should have issued a written warning.

[42] As a result, I find that the termination of Ms Luckman was harsh.

[43] I also find that the termination of Ms Luckman to be unreasonable. Ms Luckman was an employee who had an exemplary employment record without any prior disciplinary warning. It is unfair and unreasonable to inflict the ultimate disciplinary outcome upon an employee for a possible minor misdemeanour. Ms Luckman was not afforded “a fair go”.

Remedy

Statutory provisions

[44] The available remedies for a successful unfair dismissal application are contained in Chapter 3, Part 3.2, Division 4 of the Act:

“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.

391 Remedy—reinstatement etc.

Reinstatement

(1) An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:

(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or

(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

(1A) If:

(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and

(b) that position, or an equivalent position, is a position with an associated entity of the employer;

the order under subsection (1) may be an order to the associated entity to:

(c) appoint the person to the position in which the person was employed immediately before the dismissal; or

(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

Order to maintain continuity

(2) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to maintain the following:

(a) the continuity of the person’s employment;

(b) the period of the person’s continuous service with the employer, or (if subsection (1A) applies) the associated entity.

Order to restore lost pay

(3) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.

(4) In determining an amount for the purposes of an order under subsection (3), the FWC must take into account:

(a) 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 reinstatement; and

(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.

392 Remedy—compensation

Compensation

(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

Criteria for deciding amounts

(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer’s enterprise; and

(b) the length of the person’s service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that the FWC considers relevant.

Misconduct reduces amount

(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

Shock, distress etc. disregarded

(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.

Compensation cap

(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:

(a) the amount worked out under subsection (6); and

(b) half the amount of the high income threshold immediately before the dismissal.

Note: subsection 392(5) indexed to $68,350 from 1 July 2015

(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.”

[45] Before considering the substantive application for relief from unfair dismissal, section 396 of the Act requires that I be satisfied as to a number of preliminary issues. Section 396 is set out as follows:

“396 Initial matters to be considered before merits

The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy.”

a) Period in which the application was made

[46] I am satisfied that by lodging her application on 25 August 2015 Ms Luckman made her application to the Fair Work Commission for an unfair dismissal remedy within the prescribed time.

b) Whether the applicant is a “protected” person

[47] I am satisfied that Ms Luckman is a person who is protected from unfair dismissal in accordance with the Act.

c) Application of the Small Business Fair Dismissal Code

[48] I am satisfied that Highlands does not satisfy the criteria of a small business so the Small Business Fair Dismissal Code does not apply.

d) Question of Genuine Redundancy

[49] I am satisfied that Ms Luckman’s termination was not a case of genuine redundancy.

[50] Ms Luckman sought the remedy of reinstatement in her application on 25 August 2015. At the hearing of this matter on 18 December 2015, Ms Luckman advised the Commission that she now sought compensation on the basis that she did not want to return to work at Highlands if Mr Walker had lost trust in her.

[51] Mr Walker argued that trust was an integral part of an employment relationship and that his trust of Ms Luckman was broken and could not be restored. Mr Walker stated that a heartfelt apology would not have changed his mind in relation to the termination or restored his trust.

[52] In Holcim (Australia) Pty Ltd v Serafini the Full Bench stated:

“[24] When a termination of employment has been found to be harsh, unjust or unreasonable, remedy must be considered. Section 390(3) requires that Fair Work Australia determine whether reinstatement is appropriate before considering any other remedy. It is not until reinstatement has been found to be inappropriate that compensation is to be considered.” 4

[53] In Perkins v Grace Worldwide (Aust) Pty Ltd (Perkins) the Full Court of the Industrial Relations Court of Australia made the following comments in relation to the breakdown of trust in the employment relationship:

“Trust and confidence is a necessary ingredient in any employment relationship... So we accept that the question whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is impracticable, provided that such loss of trust and confidence is soundly and rationally based.

At the same time, it must be recognised that, where an employer, or a senior officer of an employer, accuses an employee of wrongdoing justifying the summary termination of the employee's employment, the accuser will often be reluctant to shift from the view that such wrongdoing has occurred, irrespective of the Court's finding on that question in the resolution of an application under Division 3 of Part VIA of the Act.

If the Court were to adopt a general attitude that such a reluctance destroyed the relationship of trust and confidence between employer and employee, and so made reinstatement impracticable, an employee who was terminated after an accusation of wrongdoing but later succeeded in an application under the Division would be denied access to the primary remedy provided by the legislation. Compensation, which is subject to a statutory limit, would be the only available remedy. Consequently, it is important that the Court carefully scrutinise any claim by an employer that reinstatement is impracticable because of a loss of confidence in the employee.

Each case must be decided on its own merits… In most cases, the employment relationship is capable of withstanding some friction and doubts. Trust and confidence are concepts of degree. It is rare for any human being to have total trust in another. What is important in the employment relationship is that there be sufficient trust to make the relationship viable and productive…

It may be difficult or embarrassing for an employer to be required to re-employ a person the employer believed to have been guilty of wrongdoing. The requirement may cause inconvenience to the employer. But if there is such a requirement, it will be because the employee's employment was earlier terminated without a valid reason or without extending procedural fairness to the employee. The problems will be of the employer's own making. If the employer is of even average fair-mindedness, they are likely to prove short-lived. Problems such as this do not necessarily indicate such a loss of confidence as to make the restoration of the employment relationship impracticable.” 5
(my emphasis)

[54] In Australia Meat Holdings Pty Ltd v McLaughlan a Full Bench of the Commission said:

“We accept that the question of whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is appropriate. It is one factor to be taken into account, but it is not necessarily conclusive”. 6

[55] In Smith v Moore Paragon Australia Ltd (2004) 140 IR 446 [15] the Full Bench of the Commission made the following comments:

“It will often, if not typically, be the case that the position occupied by an applicant for relief under s.170CE of the Act will, at the time the application is arbitrated, either no longer exist or no longer be vacant. In our view that bare fact would rarely, on its own, justify a conclusion that an order for reinstatement was not "appropriate". To adopt such an approach would tend to defeat the remedial purpose of the legislation. The unavailability of a job vacancy is simply one factor to be taken into account in deciding whether or not an order for reinstatement is appropriate.” 7

[56] Whilst it is important for the Commission to take into account the views of the parties in relation to an appropriate remedy, section 390(3)(a) of the Act, (see above) requires the Commission (as presently constituted) to be satisfied that reinstatement is inappropriate.

[57] I am not currently of that view. The loss of trust in an employment relationship can be caused by many actions, such as, dishonesty, fraudulent behaviour, theft, fighting in the workplace, threats of physical violence, malingering or incompetence, just to name a few. I am not aware of an employer losing trust in an employee because they participated in a robust discussion. I note Mr Walker’s response in the Employer’s Response (Form F3) where he said;

“4. This dismissal was not made because I was personally offended by Mrs Luckman's
conduct, as seems to be alleged. I am fully aware that there is a substantial difference
between behaviour that is disrespectful to an individual and behaviour that is disrespectful toward, and defiant of, the responsibilities, opportunities and conditions
provided by your employer. As the meeting notes of 20 August 2015 make clear, Mrs
Luckman was dismissed for the latter.”

[58] This statement from Mr Walker convinces me that reinstatement is possible and sustainable. It clearly shows that the important and essential relationship between Mr Walker and Ms Luckman has not irretrievably broken down. I am confident that a working relationship, as described by the Full Court of the Industrial Relations Court in Perkins, can be re-established.

[59] Ms Luckman, at the time of the hearing, had been unable to find suitable replacement employment, working just one day per week at a local dry cleaner. Ms Luckman advised the Commission that she had applied for numerous additional roles without success. The on-going underemployment of Ms Luckman is another issue that I have taken into account.

[60] Before ordering the reinstatement of Ms Luckman, along with an Order to restore lost pay and continuity (in accordance with section 391(2) and (3) of the Act), I am willing to hear submissions from the parties as to why such an Order should not be made.

Conclusion

[61] Ms Luckman was not dismissed for a valid reason. The reasons provided by Highland for the termination were not sound or defensible. As such, the dismissal was harsh and unreasonable.

[62] Ms Luckman was not provided with an appropriate level of procedural fairness. The absence of natural justice heightens the harshness of the dismissal.

[63] The principal remedy available to the Commission is to reinstate Ms Luckman to her former role and position. Before making an Order in these terms, I invite the parties to provide a submission on this issue, taking into account paragraphs [53] – [60] of this decision.

[64] Submissions must be lodged by 4:00pm on 10 March 2016.

COMMISSIONER

Appearances:

Ms N. Luckman, on her own behalf.

Mr P. Walker, General Manager, on behalf of the respondent.

Hearing details:

2015.

18 December.

Wollongong.

 1   Byrne v Australian Airlines (1995) 185 CLR 410 at [465] – [468]

 2   Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373

 3   Rode v Burwood Mitsubishi AIRC PR R4471

 4   Holcim (Australia) Pty Ltd v Serafini (2011) FWA 4214

 5   Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 at [191]

 6   Australia Meat Holdings Pty Ltd v McLaughlan (1998) 84 IR 1, 17

 7   Smith v Moore Paragon Australia Ltd (2004) 130 IR 446 at [15]

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