Ms Dawn Harrison v Crawford Realty Karratha Pty Ltd T/A Crawford Realty Karratha

[2014] FWC 6930

[2014] FWC 6930

FAIR WORK COMMISSION

DECISION

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

Ms Dawn Harrison
v
Crawford Realty Karratha Pty Ltd T/A Crawford Realty Karratha
(U2014/4131)

COMMISSIONER CLOGHAN PERTH, 17 OCTOBER 2014

Unfair dismissal - jurisdictional objections - not dismissed - tendered her resignation of her own volition - jurisdictional objections dismissed - remedy - compensation.

[1] On 30 January 2014, Ms Dawn Harrison (Ms Harrison or Applicant) made an application to the Fair Work Commission (Commission) seeking a remedy for alleged constructive dismissal from her former employer, Crawford Realty Karratha Pty Ltd T/A Crawford Realty Karratha (Crawford Realty or Employer).

[2] The application was made pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[3] In response to the application, the Employer asserts that the Applicant is not protected from unfair dismissal as she:

• was not dismissed; and



• tendered her resignation of her own volition on 12 January 2014.

[4] The application was unable to be resolved at conciliation and referred to me for an arbitration hearing.

[5] At the hearing, the Applicant was represented by Mr D Paabo of counsel. The Applicant gave evidence on her own behalf.

[6] Crawford Realty was represented by Mr J Uphill, Senior Employee Relations Consultant, Chamber of Commerce and Industry (WA). Evidence on behalf of the Employer was given by Ms A Dunn, General Manager and Ms K Taig, Human Resources Manager for the Crawford Property Group.

[7] At the conclusion of the hearing, the parties provided written closing submissions.

[8] This is my decision and reasons for decision.

RELEVANT BACKGROUND

[9] Ms Harrison commenced employment with Crawford Realty on 29 January 2013 in the role of Business Development Manager.

[10] The Applicant commenced employment after being provided with a letter of offer of employment and position description on 22 January 2013.

[11] On 20 March 2013, Ms Harrison signed a new contract of employment following a discussion with Ms B Meyer who was the Employer’s Human Resources Manager at the time.

[12] Following a positive performance review, the Applicant completed her three (3) month probationary period satisfactorily on 29 April 2013.

[13] On 2 May 2013, the Applicant received a telephone call from Mr C Gannon, National Business Development Manager regarding changes to the Applicant’s commission structure for residential management authorities.

[14] On 3 May 2013, the Applicant forwarded an email to Mr Pages-Oliver expressing serious concern regarding a change to her commission structure.

[15] On 7 May 2013, the Applicant and Mr Pages-Oliver had a discussion in which Ms Harrison added to her portfolio of work, commercial management authorities. Ms Harrison and Mr Pages-Oliver agreed upon a commission structure.

[16] On 13 May 2013, the Employer provided a variation to her contract of employment which incorporated the commercial management authorities commission structure and also “unpicked” the revised quota for residential management authorities discussed in paragraph [13] above. The “unpicking” of residential management authorities was to be reviewed in three (3) months. The review was never undertaken.

[17] In May 2013, the Applicant achieved a significant number of management authorities for which she was entitled to receive a commission.

[18] In August 2013, the Employer notified the Applicant that a further change would take place to the employment contract regarding the commission paid for the renewal of management authorities. The effect of the change was that the remuneration paid on renewal of management authorities was reduced from $250 to $100. In addition, renewals would no longer count towards the monthly target of 20 management authorities.

[19] In August 2013, Ms Dunn commenced employment with the Employer as its General Manager, Karratha.

[20] On 14 October 2013, the Applicant successfully completed a performance review with Ms Dunn and Ms Taig.

[21] In November 2013, Ms Harrison was advised by Ms Dunn that Mr Crawford wanted to “fast track” her into a residential Sales Consultant’s role. Ms Harrison concedes that she was interested in the proposal. There was no discussion concerning the terms and conditions of the Sales Consultant position.

[22] A few days later, Ms Dunn sought Ms Harrison’s resignation as a BDM. The Applicant replied with words to the effect that she would not be resigning until she had seen a contract for the Sales Consultant role. Ms Dunn agreed to provide a proposed contract for Ms Harrison.

[23] On 13 December 2013, Ms Harrison requested an update from Ms Taig on a contract of employment for the Sales Consultant role as she was going on annual leave early the following week. Ms Taig responded that a copy would not be provided until a week before Ms Harrison commenced in the role.

[24] On 13 December 2013, Ms Harrison was acknowledged as the most successful BDM across the entire Crawford Group. Ms Harrison was rewarded with a trip for two (2) to Bali and accommodation for three (3) nights. The value of the award was approximately $1 700. The award has not been redeemed by the Applicant.

[25] Within two (2) hours of receiving the above award, Ms Harrison and Ms Dunn had a conversation with words to the following effect.

“DUNN: You are not going to like this, but we have deducted $4000.00 from your November pay which was paid to your bank account today. The reason for this is that we have lost the 10 management authorities of SMC Construction. Because of this we are deducting your salary.

APPLICANT: That is not fair. I worked hard to get that developer signed up seven months ago in May 2013 and the commission for that work was paid at that time. I have paid tax on that money. It was not my responsibility for the client once I had them signed to the agency.” 1

[26] The Applicant forwarded an email to Mr Ryan Crawford expressing her disappointment and requesting him to reconsider the deduction of $4,000.

[27] On the same day, 13 December 2013, the Applicant received an email from Ms Taig congratulating her being the top BDM and advising her that BDM commissions “would now only be payable upon leases being formally accepted and once letting fees had been received by the agency. This policy would be applied retrospectively to the Applicant. The effect of the new policy was that the Applicant would now be reliant on the leasing team to lease any property before she was paid any commission” 2.

[28] On 16 December 2013, the Applicant and Mr Ryan Crawford discussed the issue of the deducted commission.

[29] At 2:17 pm, the Applicant received an email from Mr Ryan Crawford. Despite the content of the email referring to, “as discussed, the professional completion of your BDM role prior to leave today is acknowledged...” 3, the Employer concedes that there had been no discussion with Ms Harrison’s “completion” of the BDM role4.

[30] While it is now agreed that the discussion on Ms Harrison’s “completion” not taking place, the confusion led to Ms Harrison sending the following email to Mr Ryan Crawford:

“Hi Ryan,

Thank you for the opportunity of having a conversation with you today.

I am very confused. I do not want to resign from my BDM position until I have decided on whether to move forward in the sales role. I will have a good think about it while I am on leave and let you know in the New Year.” 5

[31] Before returning from leave, Ms Dunn and Ms Harrison had a telephone conversation with words to the effect of:

“DUNN: Have you decided what you are doing regarding the sales role? You know we are advertising your BDM role on SEEK already.

APPLICANT: I still haven’t seen the employment contract.

DUNN: You said you would let him know in the New Year, you need to email Ryan [Mr Ryan Crawford] that you will return in the sales role and I will organise the contract straight away.” 6

[32] Later that day on 5 January 2014, the Applicant requested a copy of the proposed contract of employment to review prior to her return from annual leave on 13 January 2014.

[33] On 8 January 2014, the Applicant received an email from Ms Dunn regarding Ms Harrison’s commission for the month of December 2013.

[34] On 8 January 2014, the Applicant responded to Ms Dunn’s email regarding the commission and also advised her that she had not yet received a copy of the proposed contract of employment for the Sales Consultant role.

[35] On 9 January 2014, the Applicant received an email from Ms Taig as follows:

“Please see attached employment agreement for the Sales Consultant position. I look forward to you reviewing it and potentially starting as a key member of our sales team”. 7 (my emphasis)

[36] On 9 January 2014, the Applicant received an email from Ms Dunn which relevantly reads:

“You[r] BDM role has ceased as discussed and I understand you have your contract and will be commencing in the sales role on your return”. 8

[37] On 12 January 2014, the Applicant emailed Ms Dunn. The relevant parts of the email are:

“...I have received the contract for the sales consultant position and reviewed it. However, I have decided not to go ahead in the position. I have been advised by you that my BDM role has now ceased so I don’t have that to return to therefore I won’t be returning to the office tomorrow.

This has been a difficult decision for me.” 9

[38] On 13 January 2014, the Applicant and Ms Dunn had two telephone conversations in which initially Ms Dunn sought for Ms Harrison to attend the office to deal with some management authorities, and secondly, that both would meet as Ms Dunn expressed the view that she did not want Ms Harrison to leave her employment.

[39] As it happened, Ms Dunn eventually did not require Ms Harrison to attend the office. Further, a meeting between both Ms Dunn and Ms Harrison did not take place although it is agreed that Ms Harrison called Ms Dunn as arranged.

[40] On 28 January 2014, Ms Harrison commenced employment with another real estate company.

RELEVANT LEGISLATIVE FRAMEWORK

[41] There is no dispute between the parties that Ms Harrison has properly made the application in accordance with s.382 of the FW Act. Accordingly, the relevant statutory framework for consideration are ss.385 and 386 of the FW Act.

[42] Section 385 of the FW Act sets out the meaning of unfair dismissal as follows:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) ...

(d) ...”

“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.

...”

CONSIDERATION

[43] The Employer asserts that the Applicant was not dismissed and tendered her resignation of her own volition on 12 January 2014.

If, as the Employer asserts, that Ms Harrison resigned from her employment of her own volition, what position with the Employer did she hold when she resigned?

[44] The parties’ agreed statement of facts states that “the Applicant was employed by the Respondent between 29 January 2013 and 12 January in the role of Business Development Manager (“BDM”) in the Respondent’s Karratha Office” 10.

[45] The above agreed fact is consistent with the Employer’s outline of submission 11 and numerous documents submitted as part of these proceedings, such as the, Employment Agreement, Position Description, completion of probationary period, variation to Employment Agreement and performance appraisal reviews.

[46] Accordingly, I find that, if Ms Harrison resigned from her employment, as asserted by the Employer, it was from the position of BDM.

[47] Put in the alternative, I have no evidence to find that Ms Harrison was employed by the Employer in the position of Sales Consultant and resigned from that position.

Notice of termination of employment pursuant to the Employment Agreement

[48] The initial Employment Agreement dated 30 January 2013 and signed by the Applicant, required Ms Harrison to give one (1) calendar month’s notice on termination of employment.

[49] A second Employment Agreement signed by the Applicant on 18 March 2013, provided that Ms Harrison is to give three (3) calendar months’ notice.

If the Applicant resigned, as asserted by the Employer, by what means did she resign from her employment?

[50] The Employer submits that the Applicant resigned by email on 12 January 2014 12.

[51] However, the more correct position as set out in the written witness statement of Ms Dunn is that, “she [Ms Harrison] decided not to go ahead in the sales position” 13. And that she had no position to return to after annual leave as the BDM position had ceased to exist.

[52] Ms Dunn’s evidence is preferred as it correlates with the actual words used by Ms Harrison which are:

“I have decided not to go ahead in this position [Sales Consultant]” 14.

[53] Ms Harrison continues in her email of 12 January 2014:

“I have been advised by you that my BDM role has now ceased so I don’t have that to return to therefore I won’t be returning to the office tomorrow..”

[54] It is common for contracts of employment to stipulate how that contract is to end. In this case, the Applicant was obliged to provide three (3) calendar months’ notice. If the Employer is relying upon the Applicant’s email to Ms Dunn as notice of termination of employment, clearly Ms Harrison does not give the required three (3) months’ notice.

[55] The Employer submits, that on receipt of the email of 12 January 2014, it accepted the resignation with immediate effect. I find no documentation which supports this submission.

[56] Where an employee leaves his or her employment without giving notice, especially where a notice period of three (3) months is involved, the employer can and often does, seek to enforce the notice period in some form or other. In these proceedings, the Employer neither raised the issue of the Applicant not giving the requisite notice, nor did it seek to enforce the Applicant’s notice period.

[57] Further, if as the Employer submits that it accepted the Applicant’s resignation with immediate effect on 12 January 2014, it is notable that on 13 January 2014, the Employer sought for the Applicant to return to work to deal with “management authorities” 15. While Ms Harrison did not attend work, the request is hardly demonstrative of a resignation having been accepted by the Employer with immediate effect.

[58] In conclusion, I am unable to find support in the Applicant’s email of 12 January 2014 for the assertion by the Employer, that Ms Harrison voluntarily resigned in clear and unambiguous terms as asserted by the Employer.

Did the Employer “dismiss” the Applicant in the ordinary sense of giving notice of termination of employment?

[59] Similar to the alleged resignation by the Applicant, I have no documentation from the Employer which, in clear and unambiguous terms, dismisses Ms Harrison from her employment as a BDM.

[60] With respect to this question, the Applicant relies upon an email from Ms Dunn to the Applicant dated 9 January 2014 in which Ms Dunn states:

“Your BDM role has ceased as discussed and I understand you have your new contract and will be commencing in the sales role on your return [from leave]” 16.

[61] I do not think it can be contested that the plain and ordinary meaning of the words “your BDM role has ceased” means other than the position of BDM has ceased to exist within the Employer’s organisational structure. However, while the Employer has taken this action to cease the BDM role, and communicated it to Ms Harrison, it is, of itself, not bringing the employment relationship to an end.

[62] One fact demonstrating that the employment relationship has not been brought to an end is the words which immediately follow in the email stating that the BDM role has ceased. They are:

“I understand you have our new contract and will be commencing in the sales role on your return” 17.

[63] What has happened is that on 9 January 2014, the Employer made a unilateral decision to terminate the contract of employment it had with Ms Harrison by discontinuing the BDM role which the Applicant was employed to undertake.

[64] I find that the Employer did not dismiss Ms Harrison in the ordinary sense by giving her notice of the termination of the employment relationship with notice. On the facts, I find that the Employer abolished the position which it specifically entered into in a contract of employment with Ms Harrison. Simply put, the Employer unilaterally brought Ms Harrison’s contract of employment as a BDM to an end.

Is there evidence of summary dismissal, termination of employment by mutual consent or genuine redundancy?

[65] I find no evidence to demonstrate summary dismissal or termination of employment by mutual consent.

[66] I note that after the application was made, the Employer’s legal representative (not CCIWA) asserted, on a without prejudice basis, that “the BDM position in the Karratha office was made redundant”. However, neither the Applicant nor the Commission were provided with any evidence which demonstrates that the BDM position was genuinely made redundant. For this reasons, I find no evidence of a genuine redundancy.

If as the Employer asserts, the Applicant resigned on 12 January 2014, was the resignation voluntary or was Ms Harrison forced to resign because of conduct or a course of conduct of the Employer?

[67] If, as the Employer asserts, Ms Harrison voluntarily resigned on 12 January 2014, and the maxim, “every event has a cause”, what were the surrounding circumstances which led to the alleged voluntary resignation?

[68] The Employer submits that, “there was no action by the employer that was of such a nature that it in all likelihood it would have resulted in the employee resigning” 18.

[69] It is appropriate at this point to consider the authorities cited by the parties in relation to this particular issue.

[70] The Full Bench of the Commission in Kylie Bruce v Fingal Glen Pty Ltd (in liq) [2013] FWCFB 5279 (Bruce) summarised the applicable principles of whether the course of conduct by an employer forced an employee to resign. It is not necessary to set out all of the necessary principles in paragraphs [13] to [18] of the decision. However, I consider it useful to refer to two authorities cited in paragraphs [17] and [18] of Bruce as follows:

“[17] In ABB Engineering, the Full Bench said that:

“Where it is the immediate action of the employee that causes the employment relationship to cease, it is necessary to ensure that the employer's conduct, said to have been the principal contributing factor in the resultant termination of employment, is weighed objectively. The employer's conduct may be shown to be a sufficiently operative factor in the resignation for it to be tantamount to a reason for dismissal. In such circumstances, a resignation may fairly readily be conceived to be a termination at the initiative of the employer. The validity of any associated reason for the termination by resignation is tested. Where the conduct of the employer is ambiguous, and the bearing it has on the decision to resign is based largely on the perceptions and subjective response of the employee made unilaterally, considerable caution should be exercised in treating the resignation as other than voluntary.”

[18] The four authorities cited above were summarised by a Full Bench of the AIRC in O’Meara v Stanley Works Pty Ltd (O’Meara) as follows:

“[23] In our view the full statement of reasons in Mohazab which we have set out together with the further explanation by Moore J in Rheinberger and the decisions of Full Benches of this Commission in Pawel and ABB Engineering require that there... be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. It is not simply a question of whether “the act of the employer [resulted] directly or consequentially in the termination of the employment.” Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution as they may not give full weight to the decision in Mohazab. In determining whether a termination was at the initiative of the employer an objective analysis of the employer’s conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign.”

[71] In Sharp [1977] EWCA 165, the Master of the Rolls, Lord Denning reviewed the case law relating to constructive dismissal in the United Kingdom and with which Lawton and Eveleigh LL agreed. The judgement of the Master of the Rolls states:

“If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment; or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract; then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminates the contract by reason of the employer’s conduct. He is constructively dismissed. The employee is entitled in those circumstances to leave at the instance without giving any notice at all or, alternatively, he may give notice and say that he is leaving at the end of the notice. But the conduct must in either case be sufficiently serious to entitle him to leave at once.”

[72] Lord Denning in Sharp relevant to this application continues:

“Moreover, he must make up his mind soon after the conduct of which he complains: for, if he continues for any length of time without leaving, he will lose his right to treat himself as discharged. He will be regarded as having elected to affirm the contract.”

[73] In Sharp, Lord Justice Lawton states:

“For the purpose of this judgement I do not find it necessary or advisable to express an opinion as to what principles of law operate to bring a contract of employment to an end by reason of an employer’s conduct. Sensible persons have no difficulty in recognising such conduct when they hoar (sic) about it.”

[74] Firstly, it is uncontroversial that the Employer unilaterally abolished the position the Applicant was employed to perform. The Employer, for whatever reason, clearly conveyed to the applicant that, contractually, it no longer wanted to be bound by its contract of employment with the Applicant as a BDM. Having unilaterally removed an essential feature of the contract of employment (which was for Ms Harrison to be employed as a BDM and its attendant conditions), it is unreasonable, in my view, for the Employer to now say it took no action which in all likelihood resulted in Ms Harrison resigning. What was Ms Harrison expected to do? Ms Harrison was forced into taking one of two options. The first option was to accept the removal of the BDM position and continue working in another role, presumably as the Sales Consultant. In doing so, Ms Harrison would have waived any rights she may have to action against the Employer for alleged repudiation of her contract of employment as a BDM. Further, Ms Harrison found herself in a situation where, having no job as a BDM, if she wanted to remain employed, she had to accept the Sales Consultant position which was unsatisfactory.

[75] The second option was to resign. The Employer did not submit that Ms Harrison’s resignation was for any ulterior purpose. In fact, the Employer did not hide from the connections between its action and the Applicant, except to say its actions were a reasonable response to Ms Harrison’s actions.

[76] However, from the evidence, I find that while Ms Harrison may have expressed an interest in the Sales Consultant position, it was subject, at all times, to satisfactory terms and conditions. When finally Ms Harrison received and reviewed the conditions of employment, they were unsatisfactory but by this time, the Employer had abolished the BDM position and had indicated that the position was being advertised on SEEK.

[77] Despite the changing criteria regarding targets for commissions/bonuses, at least Ms Harrison had terms and conditions in her contract of employment as a BDM, which had proved satisfactorily for nearly 12 months. However, that position and conditions of employment as a BDM had been unilaterally ceased by the actions of the Employer.

[78] In conclusion, Ms Harrison’s actions did not occur in a vacuum. I am satisfied that, on an objective analysis of the Employer’s conduct, it had brought Ms Harrison’s contract of employment as a BDM to an end. Secondly, the alternative role of Sales Consultant was, for the Applicant, unsatisfactory because of inferior conditions of employment. In such circumstances, the conduct of the Employer, especially given the history of variations to her commission/bonus scheme, had the probable result of bringing the employment relationship to an end, and leading to the applicant having no effective choice, but to resign.

[79] The abolition of the BDM position by the Employer was not subject to reaching agreement on the terms and conditions of employment for the Sales Consultant position. The abolition of the BDM position was unconditional and at the Employer’s initiative. It was also without any discussion with Ms Harrison. All these actions were at the initiative of the Employer.

[80] Having initiated the end of Ms Harrison’s contract of employment as BDM, the ongoing employment relationship was dependent on the Applicant accepting the terms and conditions of employment as a Sales Consultant; these were not satisfactory to Ms Harrison.

[81] The reasons why Ms Harrison found the terms and conditions of the Sales Representative role unsatisfactory may not be relevant but she explained in evidence they were primarily that the BDM role had a salary of $75,000 per annum plus superannuation and the ability to earn bonuses/commission. Whereas the Sales Consultant role provided for no salary and she would be entirely remunerated by commission, bonuses and superannuation contributions.

[82] Finally, there was not one skerrick of evidence to indicate that Ms Harrison conducted herself in a manner which was other than patient and professional.

[83] For the above reasons, I find that this is one of those occasions where the Applicant did not resign of her own volition but was forced to do so because of a course of conduct engaged in by the Employer in accordance with paragraph 386(1)(b) of the FW Act.

REMEDY

[84] Section 390 of the FW Act provides 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.”

[85] Section 392 of the FW Act provides for compensation as follows:

“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.”

[86] The Applicant submitted that should her dismissal be found to be unfair, she is not seeking reinstatement and seeks 26 weeks income as compensation.

[87] The Employer agrees that reinstatement is not practical given the breakdown in the relationship and submits that the Applicant should received compensation of no more than four (4) weeks (in lieu of four (4) weeks’ notice) as provided for in her contract of employment.

[88] In accordance with paragraph 390(3)(a), I am satisfied, for the reasons in paragraphs [43] to [82] that reinstatement is inappropriate. Further, I consider an order for the payment of compensation appropriate in all the circumstances of the case.

[89] I now turn to the criteria for determining the amount of compensation.

s.392(2)(a) - the effect of the order on the viability of the employer’s enterprise

[90] This has not been raised by the Employer as an objection to the payment of compensation. Accordingly, I adopt a neutral position with respect to this criterion.

s.392(2)(b) - the length of the person’s service with the employer

[91] It is not contested that the Applicant was employed from 29 January 2013 to 12 January 2014 - a period of less than 12 months.

[92] The Applicant submits that this should not have a negative bearing on the level of compensation.

[93] The Employer submits that as the Applicant was employed for such a relatively short duration of employment, it mitigates against significant compensation.

s.392(2)(c) - the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed

[94] The Applicant submits that, had she not been dismissed, she would have continued to an “unspecified date well into the future” pursuant to Haigh v Bradken Resources Pty Ltd T/A Bradken[2014] FWCFB 236.

[95] The Employer submits that the proposition that the Applicant would have continued in employment to an “unspecified date well into the future”, is wrong. The Employer contends that, if the Applicant had returned to work on 13 January 2014, it would have confirmed that the BDM role had been abolished and Ms Harrison would have, in all likelihood, declined the position of Sales Consultant. Accordingly, the period of employment would not have been “well into the future”.

s.392(2)(d) - the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal

[96] The Applicant mitigated her loss by seeking and obtaining alternative employment on 28 January 2014.

s.392(2)(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

[97] The Applicant has provided her PAYG payment summary for the period 28 January 2014 to 30 June 2014.

s.392(2)(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

[98] I have taken into account this criterion in the totality of the appropriate compensation.

s.392(2)(g) - any other matter that the FWC considers relevant.

[99] The Applicant submits that the dismissal was particularly harsh, unjust and unreasonable and 26 weeks is a “fair go all round”.

[100] The Employer is of the view that as the BDM position was made redundant, the Applicant should receive no more than her four (4) weeks’ notice.

s.392(3) - Misconduct reduces amount

[101] This criterion is not relevant for the purpose of reducing an amount of compensation.

CONCLUSION

[102] The evidence is that Ms Harrison was good at her job. There were no performance issues. It would appear that she was so successful in her employment that the Employer either wound back or attempted to wind back her commission on a number of occasions.

[103] The changing of her commission was always to her detriment.

[104] I find it remarkable that the Employer submits, “the Applicant cannot justifiably complain about the company changing the bonus structure because the contract allows the Company to change bonuses at its discretion”.

[105] It is not my role to determine the meaning and application of the Applicant’s contract of employment where it relates to the commission/bonuses, but there is a mixture of the Employer’s discretion and the words “will be paid” to Ms Harrison. What is notable is that the changes to the bonuses were always to the Applicant’s disadvantage and generally without any consultation.

[106] A third feature of these proceedings is that, if the Applicant resigned as alleged by the Employer, what were the reasons. Firstly, the Employer has abolished the BDM position. Secondly, the unsatisfactory terms and conditions of the Sales Consultant position. The first reason is clearly attributable to the Employer. The second, on a comparative basis, is also referable to the Employer.

[107] If the Commission asks the simple question of whether the actions of the Employer leading to the email of 12 January 2014 were, in addition to the reduced bonuses/commission, likely to lead to a continuation of a good working relationship or resignation, the answer must clearly be a resignation.

[108] Because Ms Harrison was having thoughts of moving to the Sales Consultant role, this was not a reason for the Employer to have unilaterally abolished the position of BDM and refuse to perform its obligations under the employment contract which it entered into with her.

[109] The history of events leading to the non-continuation of the employment relationship are atypical, however, I find that Ms Harrison was dismissed pursuant to s.386(1)(b) of the FW Act. For the reasons outlined above, I am satisfied the dismissal was harsh, unjust or unreasonable taking into account the criteria in s.387 and considered above.

[110] Having considered the provisions of subsections 392(2) and (3) of the FW Act, I determine the following compensation in lieu of reinstatement.

[111] I intend to adopt the average weekly earnings as submitted by the Employer:

• Average weekly earnings with Employer: $2 253.



• Average weekly earnings with new employer: $727.

[112] The maximum compensation sought by the Applicant is 26 weeks x $2 253 = $58 578 less the amount she received from the new employer - $1 454, leaving a total of $57 124.

[113] I acknowledge that the Applicant had only been in employment with the Employer for a relatively short period of time. However, notwithstanding this situation, Ms Harrison’s performance was exemplary and acknowledged by the Group Employer, as the BDM of 2013. Despite, the reduced bonuses/commission, Ms Harrison had an expectation of ongoing employment.

[114] I intend to adopt as a basis the Employer’s proposal that Ms Harrison received four (4) weeks pay at an average of $2 253 per week. This amount is $9 012 less 2 weeks wages at $727 ($1 454) or $7 558.

[115] However, I also intend to take into account the substantial drop in wages Ms Harrison has experienced since obtaining new employment. This factor will commence after the four (4) weeks referred to in paragraph [114]. I intend to take the substantial drop in wages experienced by Ms Harrison into account for a period of 18 weeks or up until 30 June 2014. While this period is consistent with the time period of the financial documentation provided to me by the parties, it also reflects, on the evidence, the harsh and unreasonable treatment of such a well recognised and rewarded employee. This amount is $27 468 ($2 253 minus $727 x 18).

[116] Accordingly, the total amount of compensation is $35 026. This total represents approximately 60% of the maximum compensation available and takes into account the criteria, in total, in paragraphs 392(2)(b)-(g) of the FW Act. Accordingly, an order for this amount is to be paid in addition to any other statutory entitlements (if any), Ms Harrison is entitled to receive.

[117] An order to effect the amount of compensation is attached to this Decision.

COMMISSIONER

Appearances:

D Paabo of counsel for the Applicant.

J Uphill of CCIWA for the Respondent.

Hearing details:

2014:

Karratha,

24 July.

Final written submissions:

Applicant: 6 August 2014.

Respondent: 6 and 13 August 2014.

<Price code C, PR556156>

 1   Exhibit A4(27)

 2   Exhibit A4(29)

 3   Exhibit A6(15)

 4   Exhibit A4(31)

 5   Exhibit A4 (31)

 6   Exhibit A4(33)

 7   Exhibit A6(19)

 8   Exhibit A6(21)

 9   Exhibit A6(22)

 10   Exhibit A4

 11   Exhibit R1

 12   Exhibit R2(10)

 13   Exhibit R5(6)

 14   Exhibit R5(3)

 15   Exhibit A4(42)

 16   Exhibit A6(21)

 17   Exhibit A6(21)

 18   Employer’s submission 04/08/2014

Printed by authority of the Commonwealth Government Printer