Mrs Sanuri Rathnayaka Herath Mudiyanselage v Greenhill Education Group Pty Ltd Trading as Royal Greenhill Institute of Technology
[2025] FWC 1570
•24 JUNE 2025
| [2025] FWC 1570 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mrs Sanuri Rathnayaka Herath Mudiyanselage
v
Greenhill Education Group Pty Ltd Trading AS Royal Greenhill Institute of Technology
(U2025/2081)
| COMMISSIONER LEE | MELBOURNE, 24 JUNE 2025 |
Application for an unfair dismissal remedy
On 21 February 2025, Mrs Sanuri Rathnayaka Herath Mudiyanselage (the Applicant) made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy, alleging that she had been unfairly dismissed from her employment with Greenhill Education Group Pty Ltd T/A Royal Greenhill Institute of Technology (the Respondent). The Applicant seeks compensation as a remedy.
When can the Commission order a remedy for unfair dismissal?
Section 390 of the Act provides that the Commission may order a remedy if:
(a) the Commission is satisfied that the Applicant was protected from unfair dismissal at the time of being dismissed; and
(b) the Applicant has been unfairly dismissed.
Both limbs must be satisfied. I am therefore required to consider whether the Applicant was protected from unfair dismissal at the time of being dismissed and, if I am satisfied that the Applicant was so protected, whether the Applicant has been unfairly dismissed.
In this matter, it is not in dispute that the Applicant resigned from her employment. However, the Applicant contends that she was forced to resign because of the conduct, or a course of conduct engaged in by her employer.
The determinative conference
There being some contested facts involved, the Commission is obliged by s.397 of the Act to conduct a conference or hold a hearing.
After taking into account the views of the Applicant and the Respondent, in particular taking into account that both parties were not represented by a lawyer or paid agent and whether a hearing would be the most effective and efficient way to resolve the matter, I considered it appropriate to hold a determinative conference for the matter.[1]
Procedural matters
The Respondent was on notice from the time Directions were issued on 25 March 2025 that the determinative proceeding would be held on 20 May 2025 in person at the Fair Work Commission in Hobart. The parties were also reminded of the determinative proceeding date and the requirement that both parties attend the determinative proceeding at the mention hearing on 2 April. The only representative of the Respondent who engaged with the Commission prior to the determinative conference was Ms Elizabeth George, Quality Assurance Officer in the Legal and Compliance Department for the Respondent.
Despite this, Ms George advised my Chambers at 2:30pm the day before the determinative proceeding that she was in Fiji and unable to return to Australia as her passport had expired. Ms George claimed that there was a significant backlog in Fijian passport issuances and provided various website links to support this claim. Ms George sought I adjourn the proceedings scheduled for the next day. I declined to do so. Firstly, this is an unacceptable reason for the Respondent to not attend the determinative proceeding. Ms George was presumably aware of the expiry date of her passport and any issues arising well before 2:30pm the day before the determinative proceeding. Steps could have been taken to arrange alternative representation. Having considered the circumstances, I advised I would not grant the requested adjournment. The Respondent was advised that alternative representation would need to be arranged. After not hearing from Ms George, my Chambers located the email for the CEO of the Respondent, Mr Chandra Yonzon, through email exchanges provided as part of the Applicant’s evidence and carbon copied him into the correspondence directing that someone on behalf of the Respondent must attend the determinative proceeding the next day.
Ultimately, Mr Yonzon replied to the email stating he could attend by video if Ms George could not. Mr Yonzon attended the determinative conference by Microsoft Teams and gave evidence on behalf of the Respondent. While Mr Yonzon advised he was unprepared for the matter, that is ultimately something for which he bore responsibility. He should not have assumed Ms George would succeed in adjourning the proceedings.
In any event, it was clear from the oral evidence of the Mr Yonzon that he had a good understanding of all the relevant matters, particularly those relating to the circumstances surrounding the Applicant’s resignation.[2] As CEO for 16 years of an organisation of some 15 employees he has a reasonable understanding of the roles of his employees. Finally, there is little contest on the relevant facts save for the controversy as to the duties the Applicant was undertaking during her employment. I determined to proceed with the determinative conference and further to not accede to the request of Mr Yonzon made during the determinative conference to have additional time to file unparticularised further materials. The Respondent had ample time to file its materials in accordance with the Directions. The Respondent also had the opportunity to file a reply and yet chose not to do so. Mr Yonzon had the opportunity to provide oral evidence on the day. The evidence filed by Ms George was accepted despite her non-attendance.
Witnesses
The Applicant gave evidence on her own behalf. Mr Yonzon gave evidence on behalf of the Respondent. I have also taken into account the evidence of Ms George. However, given her failure to attend I have, to the extent necessary, preferred the evidence of the Applicant on any disputed factual matters. However as noted above, there are not a significant number of matters in dispute.
Submissions
As there was a jurisdictional objection raised, that of no dismissal, the Respondent was provided the opportunity to file their materials first. The Respondent filed submissions in the Commission on 16 April 2025. The Applicant filed submissions in the Commission on 30 April 2025. The Respondent did not take the opportunity to file any submissions in reply.
Background and Evidence and findings of fact
Throughout the proceedings the Applicant was a clear and forthright witness. She was clear in her evidence and provided significant written material to support her contentions. Mr Yonzon in contrast provided evidence that was often not responsive to the question raised and provided vague and meandering responses to questions. His evidence was often not credible. For example, his answer as to who was performing the campus manager duties after the campus manager had left the organisation was vague and evasive[3]. Similarly, his strenuous claims that he was unaware of the involvement of the Fair Work Ombudsman (FWO) were replaced later in the determinative conference with him not denying that he had involvement with the FWO[4]. For these reasons, where there is a conflict on the evidence, I prefer the evidence of the Applicant over that of Mr Yonzon. I also prefer the evidence of the Applicant over that of Ms George where there is a conflict in the evidence. While I have taken into account the evidence of Ms George, her failure to appear at the determinative conference means that the Applicant was deprived of the opportunity to question her on her evidence.
In any event, as I noted above while there are a number of facts in dispute, there is agreement on a significant number of key facts in this matter. The evidence is summarised below.
The contracts of employment
The Applicant moved to Australia in March 2023. She was first engaged by the Respondent as an “Accounts Intern”. There is an intern agreement that the Applicant signed in evidence[5]. The agreement requires the “worker” to affirm that the agreement does not create an employment relationship. Consistent with the term of that agreement, she was not paid while engaged in that position. She was promised paid work if she performed well. The Applicant’s evidence is that she worked in this position from 9:00am to 5:00pm, five days a week for 3 months (5 June 2023 to 4 September 2023). The Applicant’s evidence is that during this time, she managed fees, student and general admin, class scheduling, and reception duties. It is not apparent that it was part of any particular training arrangement in place. Indeed, the extensive copies of emails provided by the Applicant[6] indicate that the Applicant was operating as a part of the administration of the business and was part of contributing to the productive capacity of the business. Some examples of this include supporting students with documentation, responding to general inquiries and processing refunds. There was no challenge to the evidence of the Applicant as to the nature of the role she was performing with the Respondent as a purported intern.
Having regard to that evidence, it seems most unlikely that this engagement was anything other than unpaid employment. The nature of the arrangement bears all the characteristics of an employment relationship. While the Applicant was required to state that no employment relationship would be created, whether or not there is an employment relationship is a factual consideration. The facts in this matter suggest overwhelmingly that the Applicant was an employee during these three months but was treated by the Respondent effectively as an unpaid trial period. Having regard to the evidence, it is more likely than not that the failure to pay the Applicant and provide her with other relevant award conditions of employment during this period was unlawful. This is one of the matters that the Applicant is entitled to and should pursue with the Respondent directly and if no resolution is reached, with the FWO. However, this consideration does not form part of the consideration of whether or not the dismissal was unfair.
When the internship ended, the Applicant was offered a part-time contract. That contract allowed for employment for a fixed term of one year from 4 September 2023 until 4 September 2024.[7] The Applicant was provided a position description that set out the title of the position as “Receptionist-Student Service Officer”. The responsibilities and accountabilities are also set out in the position description.[8] Prior to the expiration of the part-time contract, the Applicant was offered, and she accepted a full-time contract, also expressed as a limited term one year contract. That contract was expressed to operate from 28 May 2024 for a period of one year. The position the Applicant was engaged to provide continued to be the Receptionist-Student Services Officer. However, the Applicant’s evidence is that when the campus manager retired, she was also required to undertake various tasks previously undertaken by them including account duties, overseeing management, liaising with contractors and facilitating training contracts.[9]
The underpayments and failure to pay wages
The Applicant’s evidence is that from the time she started working under the part-time contract and throughout her period of paid employment, the Respondent regularly and consistently failed to pay her wages in the time period required, often making the payments very late. At the time that the Applicant resigned she was owed six fortnightly salaries or 12 weeks’ pay.[10] This was not disputed by the Respondent.[11] One of the fortnightly pays had not been paid for over 5 months. The Respondent provided vague evidence as to the reasons for the failure to pay the Applicant on time or at all. The Respondent referenced financial pressures resulting from factors beyond its control, including frequent legislative changes, market instability, and a sharp rise in student visa refusals.[12] At the determinative conference Mr Yonzon also referred to the impacts of COVID on the business. These claims were vague and not supported by any evidence and are not credible.[13] The Respondent’s conduct in not paying the Applicant what she was entitled to be paid, when she was entitled to be paid was unacceptable and unlawful conduct.
Prior to the Applicant’s resignation it is apparent that she took steps to deal with the underpayment including complaining to the Respondent on numerous occasions in emails[14]. Further, on the 9th of December, the Applicant contacted the FWO for assistance. During the determinative conference Mr Yonzon at first indicated that he did not have knowledge of the contact from the FWO but later conceded that he did have knowledge of their involvement.[15] After the involvement from the FWO, the Respondent accepted that it was paying the Applicant less than the Level 1 rate in the applicable award, that being the Educational Services (Post-Secondary Education) Award 2020 (the Award). The Applicant’s evidence is that the Respondent commenced paying, from 6 January 2025, the correct Level 1 rate under the Award. However, the Respondent failed to rectify the historical underpayment. Further the Applicant’s evidence is the Respondent also failed to follow through in paying all outstanding salaries and superannuation.[16] There was no credible evidence led by the Respondent contradicting the proposition that they continued to fail to pay the Applicant wages owed and superannuation. Ultimately, the Applicant advised the Respondent that given the failure to pay her entitlements she would end her employment unless the payments were made.
Her evidence was as follows:
“8. On 17 January 2025, I issued a formal demand email, providing a 14-day notice to resolve all outstanding payments. The CEO acknowledged the email, praised my performance, and reassured me that the issue would be resolved (Attachment DOC014). But, like before, these were empty promises. A week later, on 24 January 2025, I sent a follow-up email reiterating my demand, making it clear that failure to pay by 31 January 2025 would force me to cease work (Attachment DOC015).”[17]
Mr Yonzon replied to the Applicant as follows:
“Thank you, Sanuri, for the information and keeping me in the loop. You will not go anywhere; you are already become an integral part of this organisation. Be assured we will sort it out your issues and will not let you go anywhere. We thank you for all your good work, which is always highly appreciated. Your reporting manager Anthrisa is very happy with your performance, and you all are working as a good team. So, we don’t want to see that team’s breakdown.
Thank you for giving us enough time to resolve your existing issues which is very reasonable and fair. We will definitely look into it and look after you. Keep up your good work.
Please do not hesitate to contact us should you require any further information or assistance.”[18]
The Applicant’s evidence on the point continues as follows:
“9. When 31 January 2025 arrived, I still hadn't received anything. With no other choice, I stopped working and formally notified the management of my decision. I completed all handover tasks and returned office property.
10. On 2 February 2025, the CEO contacted me, proposing a vague instalment plan for my unpaid wages. However, given his repeated failure to honour previous commitments, I refused to return to work without at least partial payment. Instead of compensating me, the employer issued a veiled threat—if I did not return, they would hire someone else.”[19]
Having regard to the conduct of the Respondent, the Applicant submits that:
“15. The Applicant raised concerns with the Respondent on multiple occasions, informally and formally, to salvage the employment relationship. Despite this, the Respondent did not remedy the underpayment issues and failed to implement a wage increase required under the applicable award. Even after being notified by the Fair Work Ombudsman, the Respondent failed to act in accordance with their commitments and obligations. This course of conduct conveyed to the Applicant that the Respondent had no intention of complying with its legal responsibilities and that no meaningful resolution was forthcoming.
16. The Applicant submits that based on the above facts she reasonably believed continuing the employment relationship was untenable. Her resignation was not an exercise of free choice but a necessary step to remove herself from an exploitative and unlawful situation. As such, it should properly be characterised as a constructive dismissal.”[20]
The Respondent did not challenge the claims of the Applicant that they failed to pay her wages on time and in particular that she was owed 6 fortnightly pays approximately $11,000.00 at the time she resigned. There was some contest as to whether the Applicant was paid her superannuation. The Applicant’s evidence is that she is owed $4,466.27 in unpaid superannuation. Ms George gave evidence that she had been paid and that all contributions are paid directly to the Australian Taxation Office (ATO) on a quarterly basis.[21] Mr Yonzon confirmed this position at the determinative conference.[22] While there is a lack of detail in the evidence relating to the superannuation payments, I prefer the evidence of the Applicant that she is owed some amount of superannuation.
The Respondent did pay $4,000.00 to the Applicant on 2 April 2025 which is the same day of the initial mention hearing held in these proceedings with the parties. However, the remaining $7,000.00 approximately of wages had still not been paid at the time of the determinative conference on 20 May 2025.
The Respondent was adamant that the Applicant was not in a position where she had no choice but resign. In particular, it was argued that the Applicant had failed to follow the internal grievance procedure within the Respondent’s employee handbook. There was no clarity as to what the internal grievance procedure entails and indeed what difference it would have made given the Applicant had been complaining for a long time, in writing and frequently, about her missing pay.
The correct Award classification for the Applicant
Subsequent to ending her employment, the Applicant has formed a view that the duties that she was required to perform for the Respondent were such that she should have been classified at a higher level than Level 1 of the Award. What duties the Applicant was actually performing is in dispute, unlike most of the other relevant facts in this matter. The Applicant’s position description is in evidence[23]. That was the position description provided to her by Bhawnan Dhamala from Human Resources while she was employed. It is titled “Receptionist/Student Services Officer”, this is consistent with the description of her position in the full-time employment contract[24]. Mr Yonzon provided, during the determinative conference another position description said to be relevant. That document is headed Administration officer/receptionist. The provenance of that document was not made clear. Whatever that position is, it does not align with the one the Applicant was contracted to perform. Consequently, I have had no regard to its contents.
It is apparent from the foregoing that the Applicant performed or was expected to perform the various duties set out in the Receptionist/Student Services Officer position description. These duties include but are not limited to assisting students, managing fees and records, class scheduling, general administration, and reception duties. There is then the other tasks that the Applicant states she took on when the campus manager retired. It is not in dispute that there was a campus manager who resigned in July 2024. It is also not in dispute that they were not replaced as they no longer needed a campus manager according to Mr Yonzon[25]. No credible evidence was led by the Respondent as to who took on those tasks. I am satisfied that the Applicant undertook the additional tasks she cited, formerly performed by the campus manager. This factual finding has implications for the calculation of compensation as I am not satisfied that the Applicant was correctly classified as Level 1 under the Award. I set out my consideration of that matter later in the decision when dealing with compensation.
Law to be applied
When is a person protected from unfair dismissal?
Section 382 of the Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i)a modern award covers the person;
(ii)an enterprise agreement applies to the person in relation to the employment;
(iii)the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.
When has a person been unfairly dismissed?
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.
Initial matters
Under s.396 of the Act, the Commission is obliged to decide the following matters 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.
I have found for reasons that follow later in the decision that the Applicant was dismissed within the meaning of s.386(1)(b) of the Act. That is the Applicant has resigned from their employment but was forced to do so because of conduct, or a course of conduct, engaged in by the Respondent.
Was the application made within the period required?
Section 394(2) requires an application to be made within 21 days after the dismissal took effect.
The Applicant was dismissed from her employment on 31 January 2025 and made the application on 21 February 2025. I am therefore satisfied that the application was made within the period required in subsection 394(2).
Was the Applicant protected from unfair dismissal at the time of dismissal?
I have set out above when a person is protected from unfair dismissal.
Minimum employment period
It was not in dispute, and I find that the Applicant was an employee, who commenced their employment with the Respondent on 4 September 2023. The Applicant was dismissed on 31 January 2025 a period in excess of 12 months.
It was not in dispute, and I find that the Applicant was an employee.
I am therefore satisfied that, at the time of the alleged constructive dismissal, the Applicant was an employee who had completed a period of employment with the Respondent of at least the minimum employment period.
Application of an enterprise agreement
It was not in dispute, and I find that, at the time of dismissal, the Award applied to the Applicant’s employment. Further, the Applicants’ earnings were well below the high-income threshold. This satisfies the requirement of s.382 of the Act.
I am therefore satisfied that, at the time of the dismissal, the Applicant was a person protected from unfair dismissal.
Was the dismissal consistent with the Small Business Fair Dismissal Code?
In the Form F3 the Respondent indicated that there were 14 employees at the relevant time but did not seek to rely on the Small Business Fair Dismissal Code (SBFDC). At the determinative conference Mr Yonzon agreed there was either 14 or 15 employees.[26] Although it is unclear if the Respondent is a small business, the dismissal was not consistent with the SBFDC in any case as the Respondent did not seek to rely on it, rather indicating that there was no dismissal. Even if the Respondent was a small business at the time of the dismissal, the dismissal was not consistent with the SBFDC.
Was the dismissal a case of genuine redundancy?
It is not in dispute that the dismissal was not a case of genuine redundancy.
Has the Applicant been dismissed?
A threshold issue to determine is whether the Applicant has been dismissed from their employment.
The law to be applied
Section 386 of the Act sets out the meaning of dismissed.
“386 Meaning of dismissed
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
A useful summary of the relevant law was set out by Deputy President Hampton in Tao Yang v SAL HR Services Pty Ltd[27]. The Deputy President in that decision set out a useful summary of the general principles to be applied:
The question as to whether there was a dismissal within the meaning of the Act is a jurisdictional fact that must be established by the Applicant;
A termination at the initiative of the employer involves the conduct (or course of conduct) engaged in by the employer as the principal contributing factor leading to the termination. There must be a sufficient causal connection between the conduct and the resignation such that it “forced” the resignation;
The employer must have engaged in some conduct that intended to bring the employment relationship to an end or had that probable result;
Conduct includes an omission;
Resignations that are clear and unambiguous may be treated on face value unless special circumstances are present which warrant the employer confirming the intention of the employee;
Considerable caution should be exercised in treating a resignation as other than voluntary (forced) where the conduct of the employer is ambiguous and it is necessary to determine whether the employer’s conduct was of such a nature that resignation was the probable result such that the employee had no effective or real choice but to resign; and
In determining the question of whether the termination was at the initiative of the employer, an objective analysis of the parties’ conduct is required.
I agree with those principles and will apply them here so far as they are relevant.
Constructive dismissal
In a consideration of whether or not there is a constructive dismissal, each matter turns on its own facts.
Throughout her employment the Applicant was paid on time on only one occasion.[28] On all other occasions she was paid late or on a significant number of occasions she was not paid at all.
The Respondent makes the rather vague submission that the Applicant did not exhaust internal appeal procedures to deal with the pay issues. There was a complete lack of clarity as to what particular internal process she did not follow.[29] In contrast, the Applicant provided evidence of numerous emails and Microsoft Teams messages dating back to 8 February 2024 where she has protested the late payments.[30] In December 2024, the Applicant in desperation contacted the FWO. The FWO engaged with the Applicant and provided information on how to pursue the missing wages as well as advising that the Respondent was paying her less than she was entitled to under Level 1 of the Award. The FWO also contacted the Respondent, and the Respondent agreed to process all outstanding wages.[31]
While the Respondent undertook to rectify the issue, the conduct of that rectification was to commence paying the Applicant the correct Level 1 Award rate from 6 January 2025. They did not rectify the retrospective underpayment, nor did they rectify their failure to pay her a salary at all on numerous occasions.
On 17 January 2025 the Applicant wrote to the Respondent giving two weeks’ notice and an ultimatum that they make good on the underpayments and failure to pay salary, or her resignation would take effect on 31 January.
Mr Yonzon responded to that email with the following:
“Thank you, Sanuri, for the information and keeping me in the loop. You will not go anywhere; you are already become an integral part of this organisation. Be assured we will sort it out your issues and will not let you go anywhere. We thank you for all your good work, which is always highly appreciated. Your reporting manager Anthrisa is very happy with your performance, and you all are working as a good team. So, we don’t want to see that team’s breakdown.
Thank you for giving us enough time to resolve your existing issues which is very reasonable and fair. We will definitely look into it and look after you. Keep up your good work.
Please do not hesitate to contact us should you require any further information or assistance.”[32]
However, no payment was made. A week later on the 24th of January she sent a follow up email reiterating her demand to be paid what she was owed. The Respondent again failed to rectify the underpayments. Ultimately, the Applicant made good with her resignation and ended the employment relationship on 31 January 2025. She was no longer prepared to accept the unfulfilled promises of the Respondent to pay her lawful entitlements.
It is not in contest that at the time her employment ended, she was owed in the order of $9,000.00 to $10,000.00.[33] The Applicant claims she was actually owed $13,000.00 as well as unpaid superannuation.
It is not the case that every employee who is underpaid is entitled to resign and have that considered a constructive dismissal. The line distinguishing conduct that leaves an employee no real choice but to resign, from an employee resigning at their own initiative is a narrow one. The line, however, must be ‘closely drawn and rigorously observed’.[34]
In this case, it is hard to imagine what else the Applicant could have done to extract from the Respondent her lawful right to be paid for her work. She has emailed her superiors repeatedly and involved the FWO. She has provided an opportunity for the Respondent to rectify the issue before the resignation took effect.
After all that, the Respondent continued to flout its legal obligations. I am satisfied having regard to the undisputed facts that the Respondent has, by continually paying the Applicant her wages late or not at all over virtually the entire period of her employment, engaged in a course of conduct that left the Applicant with no choice but to resign.
Therefore, I am satisfied on the evidence that the Applicant was forced to resign from her employment because of a course of conduct engaged in by the Respondent.
I am therefore satisfied that the Applicant has been dismissed within the meaning of s.386 of the Act.
Having considered each of the initial matters, I am required to consider the merits of the Applicant’s application
I now turn to consider the factors in s.387(a) – (h) of the Act, as to whether the dismissal was harsh, unjust or unreasonable.
Was the dismissal harsh, unjust or unreasonable?
Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission 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.
I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me.[35]
I set out my consideration of each below.
Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct?
In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”[36] and should not be “capricious, fanciful, spiteful or prejudiced.”[37] However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.[38]
There is no evidence that the Respondent had a valid reason to dismiss the Applicant. In fact, it is clear on the evidence that the Applicant was held in high regard by the Respondent with Mr Yonzon continuously praising her performance.[39]
The complete absence of a valid reason for dismissal weighs in favour of finding that a dismissal was unfair.
Was the Applicant notified of the valid reason?
As I am not satisfied that there was a valid reason related to dismissal, this factor is not relevant to the present circumstances.[40]
Was the Applicant given an opportunity to respond to any valid reason related to their capacity or conduct?
As I have not found that there was a valid reason related to dismissal, this factor is not relevant to the present circumstances.[41]
Did the Respondent unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal?
This is not a relevant consideration as there was no procedure followed as the Applicant resigned.
Was the Applicant warned about unsatisfactory performance before the dismissal?
As the dismissal did not relate to unsatisfactory performance, this factor is not relevant to the present circumstances.
To what degree would the size of the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal, and to what degree would the absence of dedicated human resource management specialists or expertise in the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal?
The Respondent is not a large employer with a dedicated human resources management. However, what has led to the end of the Applicant’s employment was the failure to pay her legal entitlements to wages. There is no reasonable excuse for the Respondent failing to pay the Applicant. However, given that there was no procedure followed due to the manner in which the Applicant’s employment ended this is a neutral consideration.
What other matters are relevant?
Section 387(h) of the Act requires the Commission to take into account any other matters that the Commission considers relevant.
Any other matters must be relevant in the context of the circumstances of the particular case.[42] Not every submission that is made had to be dealt with, but those which are centrally relevant to the consideration of whether a dismissal was unfair should be given adequate consideration.[43] In this matter there are a number of other factors to be considered.
The continuously delayed salary meant that the Applicant had to rely on her husband to financially support her, meaning she lost any financial independence she had.[44] At the determinative conference the Applicant also gave evidence that her parents are dependent on her. These factors weigh in favour of a finding the dismissal was unfair.
Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust or unreasonable?
I have made findings in relation to each matter specified in s.387 as relevant.
I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable.[45]
There was no valid reason for the dismissal and this weighs in favour of a finding the dismissal was unfair.
The factors in s.387(b) to (g) are neutral in the circumstances of this case of constructive dismissal. The additional factors considered under s.387(h) weigh in favour of a finding the dismissal was unfair.
Having considered each of the matters specified in s.387 of the Act, I am satisfied that the dismissal of the Applicant was unjust as there was no valid reason for the dismissal. The dismissal was harsh having regard to the impact on the Applicant considered under s.387(h). There are no factors weighing in favour of the Respondent.
Therefore, I find that the dismissal of the Applicant was harsh and unjust
Conclusion
I am therefore satisfied that the Applicant was unfairly dismissed within the meaning of s.385 of the Act.
Being satisfied that the Applicant:
· made an application for an order granting a remedy under s.394;
· was a person protected from unfair dismissal; and
· was unfairly dismissed within the meaning of s.385 of the Act,
I may, subject to the Act, order the Applicant’s reinstatement, or the payment of compensation to the Applicant.
Under s.390(3) of the Act, I must not order the payment of compensation to the Applicant unless:
(a) I am satisfied that reinstatement of the Applicant is inappropriate; and
(b) I consider an order for payment of compensation is appropriate in all the circumstances of the case.
Is reinstatement of the Applicant inappropriate?
A key consideration is the fact the Applicant resigned and was forced to do so because of a course of conduct engaged in by the Respondent of repeated non-payment. Mr Yonzon, during the determinative conference, indicated a willingness to re-engage the Applicant and continued to indicate that he held the Applicant in high regard. However, in light of the course of conduct engaged in by the Respondent the Applicant does not wish to return to work with the Respondent as she does not trust them given her past experiences and working there makes her feel uncomfortable and causes her emotional stress.[46] This concern of the Applicant is understandable given that the Applicant is still owed a considerable amount in wages and likely superannuation at the time of the determinative conference. Further, the Applicant is currently gainfully employed albeit on a temporary contract.
These factors weigh against a finding that reinstatement is appropriate.
Having regard to the matters referred to above, I consider that reinstatement is inappropriate. I will now consider whether a payment for compensation is appropriate in all the circumstances.
Is an order for payment of compensation appropriate in all the circumstances of the case?
Having found that reinstatement is inappropriate, it does not automatically follow that a payment for compensation is appropriate. As noted by the Full Bench, “[t]he question whether to order a remedy in a case where a dismissal has been found to be unfair remains a discretionary one…”[47]
The Respondent submits that a compensation order is not appropriate because the Applicant resigned and therefore should not be entitled to any remedy as she is not a person protected from unfair dismissal. However, as already established above there was a constructive dismissal and the Applicant is a person who is protected from unfair dismissal in accordance with the Act.
The Respondent has also asked that I take into account the current challenges they face in the market as well as their ongoing efforts to keep the operation running for the benefit of their students. The Respondent believes they were engaging with the Applicant to resolve the outstanding pay issues but just needed more time to do so.[48] However, the Applicant had already demonstrated a large amount of patience in relation to these issues given she was following delayed and/or missing payments since as early as 8 February 2024.
I am satisfied that the Applicant has suffered loss by reason of being unfairly dismissed.
Compensation is appropriate in the circumstances.
Section 392(2)(a): effect of the order on viability of the employer
The Respondent referenced ongoing challenges in the market and efforts to keep the operation running but no substantive submission or evidence was provided as to the effect of any order on the viability of the Respondent. In the circumstances this is a neutral consideration.
Section 392(2)(b): length of employee’s service
The length of the Applicant’s service was not a particularly long time, 18 months from the time of her ‘unpaid internship’. This is a neutral factor in the circumstances.
Section 392(2)(c): remuneration that the employee would have received had she not been dismissed
The Commission must take into account the length of time for which the Applicant would have been employed, but for the dismissal. The Applicant was engaged on a temporary contract which was to expire on 28 May 2025. Ordinarily, a circumstance such as this would provide the outer limit of the length of time the Applicant would have been employed, but for the dismissal. However, as can be seen from the evidence above, the Applicant was a valued member of the staff and Mr Yonzon the CEO did not want her to leave the organisation, continued to seek that she return and was keen to continue to engage her. Having considered that evidence, I am satisfied that the Respondent would have continued to employ the Applicant beyond the expiration of her contract. The Applicant’s evidence is that were it not for the failure to pay her she wanted to continue to work for the Respondent.[49] I am satisfied on the evidence that if the Respondent had of not engaged in the course of conduct that caused the constructive dismissal, it is apparent on the evidence from both the Respondent and the Applicant that the employment relationship would have continued for a considerable period. In all the circumstances I am satisfied that the employment relationship would have continued for a further 1 year.
As to the remuneration that would have been earned in that period, as established earlier the Applicant was paid as a Level 1 under the Award. The Applicant did not seek to be paid at a higher level than that Award while employed. However, since her forced resignation she has considered the terms of the Award and the duties she undertook and maintains she should have been paid at the time of termination as a Level 4 however, her representative agreed that the correct classification could be a level 2, 3 or 4.[50]
I have considered the evidence on this matter. I am satisfied as set out earlier that the Applicant engaged in the tasks set out in the position description for Receptionist/Student Services Officer, as well as the additional tasks she was expected to take on when the campus manager left the organisation.
At the very least it seems clear that the Applicant should have been classified a Level 2 under the Award. The classification description under the Award describes duties such as the standard use of a range of desktop-based programs; general administrative support to other employees including setting up meetings, answering straightforward inquiries and directing others to the appropriate channel; and processing accounts for payment. All these tasks described in the Award clearly align with the Applicant’s position description at the time of her resignation. However, the evidence demonstrates that the Applicant was performing tasks at a higher level than a Level 2.
The Level 4 classification description under the Award describes the tasks for administrative positions as including: explanation and administration of an administrative function e.g. student fees/HECS advise, determinations and payments, centralised enrolment function, administration of exams at a small campus; provide reports to management in account/financial, staffing, legislative requirements and other institutional activities; and/or administer salary and payroll requirements of the organisation. Whilst the Applicant’s position description includes assisting students with administration many of the other tasks seem to be above the duties the Applicant was performing. For this reason, I do not think the Applicant should have been classified as a Level 4 under the Award as she asserts.
The Level 3 classification description under the Award describes the tasks for administrative positions as including: use of a full range of desktop based programs; plan and set up spreadsheets or database applications; be responsible for providing full range of secretarial services; may be responsible for accounting transactions and the production of reports; provide advice to students on enrolment procedures and requirements; and/ or administer enrolment and course progression records. I am satisfied that these tasks best align with the duties the Applicant was performing prior to her resignation and that she should therefore have been classified as a Level 3.1 General Staff under the Award at the time of her dismissal
As the Applicant would have been employed for a further one year and was entitled to be paid as a Level 3.1 the amount of remuneration likely to be earned was $56,877.32.
Section 392(2)(d): loss mitigation
The Applicant has applied for available positions and has been successful. The Applicant registered with the Department of Health Tasmania’s casual and fixed-term employment register and successfully obtained a fixed-term contract role which is due to expire on 30 June 2025. No deduction should be made for failure to mitigate her loss.
Section 392(2)(e) and (f): any remuneration earned by the person from employment or other work during the period between dismissal and the making or the order for compensation; and the amount of income reasonably likely to be earned by the person during the period between making of the order for compensation and the actual compensation
In the circumstances, deductions should be made under ss.392(2)(e) and (f).
Since termination, the Applicant secured employment. The amount of remuneration the Applicant is earning is $66,049.00 gross per annum. The amount earned at the time of the determinative conference is $17,295.05. As the contract is due to conclude on 30 June 2025 it is expected that the Applicant will have earned a total of $26,405.24 total up until that date of expiry. I accept the evidence of the Applicant that there is a hiring freeze in the Tasmanian public service, that she has not been offered further employment and that she is unlikely to secure ongoing employment. In the circumstances there is no requirement to make a further deduction. Taking the amount of $26,405.24 away from $56,877.32 leaves $30,472.08 plus superannuation of 11.5%.
Sprigg Factors
The first and second Sprigg[51] factors are addressed above under the headings for s.392(2)(c) and 392(2)(e) respectively.
The third step in Sprigg concerns whether any allowance should be made for contingencies. Contingencies only apply to the anticipated period of employment.[52] In this case, the anticipated period of employment is two years and therefore no deduction for contingencies is appropriate. I consider a deduction of 10% is appropriate for contingencies which is $3,047.20. Deducting that amount from $30,472.08 leaves an amount of $27,424.88.
The fourth step concerns taxation. While the Commission is obliged to consider the impact of taxation in determining compensation, there is no requirement that the Commission deduct taxation from the total compensation ordered,[53] I do not consider a deduction for taxation is appropriate in the circumstances.
The fifth step concerns application of the statutory compensation cap, which is addressed below.
Section 392(3): Misconduct
I have found that there was no valid reason for the dismissal of the Applicant and that no misconduct was in evidence. Therefore, there is no basis to make a further deduction.
Section 392(5) and (6): compensation cap
The amount of compensation the Commission may order is capped. If the appropriate quantum of compensation initially assessed exceeds that cap, then the Commission must reduce the amount to the amount of the cap.
The Act stipulates that the compensation cap is the lesser of:
the amount of remuneration received by the person, or that he or she was entitled to receive (whichever is higher) in the 26 weeks before dismissal; and
half the amount of the high-income threshold immediately before dismissal.
The compensation cap in this matter is $28,438.66 being 26 weeks remuneration at the Level 3.1 General Staff under the Award. The amount of compensation calculated being $27,424.88 is below the statutory cap and for that reason a further deduction is not required. Accordingly, the amount of compensation ordered is $27,424.88 less taxation as required by law plus superannuation of 11.5%.
In light of the above, I will make an order that the Respondent pay $27,424.88 gross less taxation as required by law plus superannuation of 11.5% to the Applicant in lieu of reinstatement within 14 days of the date of this decision. This remedy accords a fair go all round to both the Respondent and the Applicant.
Conclusion
For the reasons stated above I am satisfied that there was a termination at the initiative of the employer, I am satisfied that the Applicant was forced to resign because of conduct, or a course of conduct engaged in by the employer. Therefore, I'm satisfied the Applicant was dismissed within the meaning of s.386 of the Act.
The jurisdictional objection is dismissed
I have considered the merits of the dismissal and found for the reasons set out that the dismissal was unfair as it was unjust and harsh.
I have determined that reinstatement is not appropriate, and that compensation is appropriate. I have determined to award compensation in the amount of $27,424.88 to the Applicant.
This accords a fair go all round to both the Respondent and the Applicant.
An order[54] to this effect is issued in conjunction with the publication of this decision.
COMMISSIONER
Appearances:
Mr N Gautam, for the Applicant
Mr C Yonzon, for the Respondent
Determinative conference details:
2025.
20 May.
Hobart.
[1] Section 399 of the Act.
[2] PN269-270.
[3] PN226-241.
[4] PN314.
[5] Digital Hearing Book (DHB), page 176.
[6] Ibid, pages 180-603.
[7] Ibid, page 605.
[8] Ibid, pages 617-620.
[9] Ibid, page 22, paragraph 5.
[10] Ibid, page 12.
[11] PN6-PN11.
[12] DHB, page 968.
[13] PN171.
[14] DHB, page 621-677.
[15] PN245; PN309-318.
[16] DHB, page 22, paragraph 7.
[17] Ibid, page 22, paragraph 8.
[18] DHB, page 859.
[19] Ibid, page 22, paragraphs 9-10.
[20] Ibid, page 23.
[21] Ibid, page 969.
[22] PN196.
[23] DHB, pages 616-620.
[24] Ibid, page 685.
[25] PN230-231.
[26] PN546.
[27] [2023] FWC 1325, [50].
[28] PN417.
[29] PN171.
[30] DHB, pages 621-677.
[31]Ibid, page 863.
[32] Ibid, page 859.
[33] PN256-257.
[34] Doumit v ABB Engineering Construction Pty Ltd Print N6999 (AIRCFB, Munro J, Duncan DP, Merriman C, 9 December 1996).
[35] Sayer v Melsteel Pty Ltd[2011] FWAFB 7498 at [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002) at [69].
[36] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
[37] Ibid.
[38] Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681, 685.
[39] DHB, page 859; PN215; PN385.
[40] Chubb Security Australia Pty Ltd v Thomas Print S2679 (AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 2000) at [41]; Read v Cordon Square Child Care Centre [2013] FWCFB 762 at [46]-[49].
[41] Ibid.
[42] Kehagias v Unilever Australia Limited Print Q0498 (AIRCFB, Watson SDP, Williams SDP, Larkin C, 29 April 1998).
[43] Sipple v Coal & Allied Mining Services Pty Limited T/A Mount Thorley Warkworth Operations [2015] FWCFB 2586 (Catanzariti VP, Harrison SDP, Bull C, 24 April 2015) at [18]; citing Soliman v University of Technology, Sydney [2012] FCAFC 146 (24 October 2012) at [55]–[57], [(2012) 207 FCR 277]; Linfox Australia Pty Ltd v Fair Work Commission [2013] FCAFC 157 (13 December 2013) at [47]; Fox v Australian Industrial Relations Commission [2007] FCAFC 150 (27 September 2007) at [37], [40].
[44] DHB, page 22; page 624.
[45] ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357 at [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002) at [92]; Edwards v Justice Giudice [1999] FCA 1836 at [6]–[7].
[46] DHB, page 34.
[47] Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter[2014] FWCFB 7198 at [9].
[48] DHB, pages 969-970.
[49] PN568.
[50] PN561-566.
[51] Sprigg v Paul’s Licensed Festival Supermarket (1998) 88 IR 2.
[52] Enhance Systems Pty Ltd v Cox PR910779 (AIRCFB, Williams SDP, Acton SDP, Gay C, 31 October 2001) at [39]; citing Ellawala v Australian Postal Corporation Print S5109 (AIRCFB, Ross VP, Williams SDP, Gay C, 17 April 2000) at [43].
[53] Per Ellawala v Australian Postal Corporation, Print S5109 (AIRCFB, Ross VP, Williams SDP, Cay C, 17 April 2000), Print S5109 at [72].
[54] PR788459.
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