Ms Fiona Fox v Wilderness Escape Outdoor Adventures Pty Ltd - [2011] FWA 7476

[2011] FWA 7476

FAIR WORK AUSTRALIA

DECISION

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

Ms Fiona Fox
v
Wilderness Escape Outdoor Adventures Pty Ltd
(U2011/7880)

COMMISSIONER HAMPTON

ADELAIDE, 28 NOVEMBER 2011

Termination of employment - alleged unfair dismissal - discussions about future employment intentions and need for employee to be more appreciative - whether employee abandoned employment or was dismissed at the initiative of the employer - reviewable dismissal found- whether valid reason for dismissal - valid concerns about future intentions but no valid reasons for dismissal at that point - dismissal unfair - remedy - compensation.

INTRODUCTION AND CASE OUTLINE

[1] At one level this is a matter that arises simply as a result of an employer seeking that its employee express appreciation, and that employee’s unwillingness to do so, at least in relation to one “benefit” provided, during and following a discussion on 6 May 2011. However, there are other aspects of the conduct of the parties surrounding that issue which raise important matters concerning whether a dismissal ultimately took place and if so, whether it was unfair.

[2] This all falls to be determined within the context of an application by Ms Fiona Fox (Ms Fox or the applicant) seeking a remedy for an alleged unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (the Act). The employer concerned is Wilderness Escape Outdoor Adventures Pty Ltd (Wilderness or the respondent) which conducts outdoor adventure activities, camps and programs, including for schools and youth groups.

[3] This matter was subject to conciliation by a Fair Work Australia conciliator but did not resolve. At a later directions conference, I recommended that further conciliation take place, particularly given the nature of the issues underlying the application and the likely costs/consequences of proceedings for both parties given the range of potential outcomes. Unfortunately this did not occur.

[4] Having regard to the matters outlined in s.399 of the Act, I considered that it was appropriate to conduct a hearing in this matter. 1

[5] The applicant was represented (with permission) by Mr Scragg and the respondent was represented by its Director, Mr Andrew Govan and Human Resources Manager, Ms Nielsen.

[6] Given the absence of professional representation of the respondent, I provided appropriate opportunity for the presentation of its case 2 and note the generally constructive role of Mr Scragg in that regard.

[7] There is a dispute between the parties as to whether there was a dismissal at the initiative of the employer as contemplated by s.386 of the Act and as a result of s.396, 3 I will of course consider and determine the preliminary issue before addressing the consequences of that finding. It was however agreed at an earlier directions conference that as the same facts would largely be directly relevant to the other matters arising under the application, Fair Work Australia would as a matter of convenience hear all of the evidence and submissions during the hearing.

[8] The applicant contended that Mr Govan had required that she express appreciation for the provision of staff housing at a camp site used by Wilderness and whilst she had expressed thanks for other aspects of her employment, did not consider that such was appropriate or necessary. Having informed Mr Govan of that view, the applicant contended that she was denied access to the premises of the respondent and subsequently removed from the rosters for the remainder of the school term and beyond.

[9] The applicant also asserted that she had felt uncomfortable about being hugged by Mr Govan and contended that this became known to him and also played a role in the events leading to what she saw as the end of the employment relationship.

[10] Ms Fox contended that this was a dismissal at the employer’s initiative, or alternatively a forced resignation, and was unfair. The applicant sought compensation in lieu of reinstatement.

[11] Wilderness contended that it did not terminate Ms Fox’s employment, either directly or constructively. In particular, it contended that the applicant was not removed from the term 2 rosters or otherwise and was informed on numerous occasions that she had not been dismissed and that her job remained available to her.

[12] The respondent also contended that the rosters for the subsequent terms has not been prepared when this application was filed and Ms Fox’s position still remained available on the same terms and without any additional conditions. Wilderness did however contend that Ms Fox had earlier indicated that she was unlikely to be available on a regular basis after term 2 of 2011 and wanted to pursue other primary employment.

THE EVIDENCE

[13] There are some key factual disputes, particularly in relation to the events of 6 May 2011 and in the immediate period thereafter.

[14] Ms Fox, Ms Nielsen and Mr Govan all gave evidence. Whilst I do not consider that any party sought to mislead Fair Work Australia, I consider that much of the detailed witness evidence has been subject to some post event reassessment. This does not lead me to generally discount their evidence, however I treat it with some caution.

[15] I found Ms Fox to hold strong views and she tended to initially discount alternative views if they did not line up well with her own. This included the tendency to minimise the significance of some events in order to bolster her case. Ms Fox did however make reasonable concessions under cross examination.

[16] Ms Nielson and Mr Govan were in my view influenced to some degree by their anxiety at having to answer this application and this tended to lead to a loss of objectivity, particularly in the case of Mr Govan. Mr Govan was also defensive and argumentative as a witness and had a tendency to adjust his evidence to support the proposition being advanced. Ms Nielsen was a sound witness however she did not have a full recall of the detail of telephone conversations involving Ms Fox later on 6 May 2011.

THE GENERAL FACTS

[17] Wilderness has been in operation for some years and provides its outdoor adventure services to schools, youth groups, special needs groups and to businesses. At any one time it employs in the order of 35 employees, most of whom are considered to be casuals. The services provided often involve a team of instructors travelling to camp sites and other venues, including a property run by the respondent on Hindmarsh Island.

[18] Ms Fox was engaged as an Instructor since 2007. Whilst her employment has been considered to be casual at all times, the nature of the mutual expectations changed during that time. Initially, the applicant was engaged in a freelance capacity working predominately with other adventure companies and worked only with the respondent in a secondary capacity. In 2007 this involved 7 days of work, and 21 days in 2008.

[19] Leading into 2010, Ms Fox indicated that she would consider Wilderness as her primary employer and the extent and regularity of her engagements changed accordingly. However, the extent of actual work was organised on the basis of both employee availability and bookings from clients and tended to be arranged around school terms. In 2009, the applicant worked 85 days and in 2010, 133 days made up of approximately 25 camps (100 days), 25 days in the respondent’s warehouse and 8 days of training. 4

[20] Ms Fox worked in the order of 48 days in Term 1 of 2011, noting that this would normally be the term with the highest demand from the schooling clientele.

[21] I note that Ms Fox also continued to work for other employers in the field (schools, a leading young offender adventure provider etc) including during 2010 and 2011.

[22] The roster system used by Wilderness in 2010 and 2011 generally involved requesting the availability of Ms Fox and other staff to undertake scheduled work on a term by term basis and then confirming the expected dates of employment in advance of the period concerned. Additional ad hoc adventure and warehouse work would also be offered when it arose.

[23] Ms Fox and other instructors were generally paid on a daily or hourly basis and this also relied to some degree on a time off in lieu (TOIL) arrangement. I note that this TOIL arrangement was applied incorrectly during 2010 and this involved the overpayment of many staff including Ms Fox, which the respondent did not seek to recover. The employment related benefits provided to the employees by Wilderness also included free access to certain equipment and company vehicles, and access to camp sites during holidays for private use.

[24] Ms Fox was generally considered to be a good employee who was particularly in demand given the need for female instructors. There were some early issues about her manner, which tendered to be directive with students, and some clients requested that Ms Fox not be put on particular camps. These concerns did not however lead to any formal disciplinary action or apparently represent a threat to continuing employment.

[25] The applicant was also informed on a number of occasions that she should not attend at the workplace when not rostered to work and this practice ultimately ceased. 5

[26] During the latter part of 2010 and the early part of 2011, some further issues arose between the applicant and respondent. These included the perception that Ms Fox was spreading negative rumours about Wilderness and Mr Govan spoke to her about this and advised that she should directly raise any concerns with him.

[27] A number of issues also arose about Mr Govan’s management style including Ms Fox’s view that he did not provide sufficient positive feedback to staff and was in effect too tough on them at times.

[28] During late 2010, the respondent continued work in relation to staff quarters and other facilities on the Hindmarsh Island property. I understand that these facilities were requested by staff however there was also an indication by Mr Govan that employees were subsequently expected to use these facilities rather than the student accommodation. Wilderness expected the employees to participate in an “exchange”, which refers to the notion that the employer was providing a series of benefits, including the accommodation, and employees were expected to do their part in return. This relevantly involved employees, including Ms Fox, being requested to volunteer some weekend days to clear a site for a (transportable) staff house. I also note that once finalised, there was resistance by some to using the staff facilities and this included Ms Fox who preferred to continue to sleep on her own in a swag. This was seen as disrespectful by Mr Govan who considered that the provision of the staff facilities was a benefit for their use that had been achieved by a combination of efforts.

[29] In February 2011, Mr Govan spoke sternly to employees at the normal debrief on a Friday night and explained some of his concerns about their apparent attitude and practices. Ms Fox did not consider that this was appropriate. On that weekend, Mr Govan contacted many of the employees, including Ms Fox, and apologised for his manner and sought to discuss any concerns they had more generally.

[30] During the course of that discussion, Mr Govan raised concerns about whether Ms Fox had been negative in her attitude and again indicated that she should approach him directly with any workplace issues. Mr Govan did not provide details of any concerns that had been raised with him and Ms Fox indicated that things were going okay.

[31] In late March 2011, Mr Govan also spoke to Ms Fox regarding what he saw as her negative attitude in complaining about a company vehicle. This involved apparent concerns of Ms Fox about the capacity of the vehicle to tow and brake with the portable rock climbing wall that was transported to camps and a suggestion that the dash board lights did not work. Based upon the evidence before Fair Work Australia these concerns were not entirely valid. The discussion was quite intense and after Ms Fox left the immediate area, Mr Govan followed and put his arm around Ms Fox in an apparent attempt to defuse the tension. Ms Fox was uncomfortable about that approach and whilst nothing was said, she crossed her arms. I interpose that there is no evidence to support the notion that Ms Fox had expressed her concerns about physical contact to Mr Govan or anyone else prior to the subsequent events of 6 May 2011.

[32] The rosters for term 2 in 2011 were discussed with the applicant and other staff in March 2011. Staff were also requested to advise of their availability for terms 3 and 4 at that time.

[33] On 12 April 2011, the provisional term 2 roster for Ms Fox was sent to her along with a request to confirm by 15 April that she would be available to undertake the relatively significant work assigned to her. On 18 April, Ms Fox advised that she would not be able to work the first week of term 2. Later on 30 April, Ms Fox further advised that she would be unable to also work in weeks 2 and 3 of that term. The timing of that advice caused concerns to the respondent and in the course of subsequent discussions on 2 May 2011, Ms Fox advised Ms Nielsen that she would probably be working more directly with schools in the future. There is a dispute as to whether that was only to apply in later years however I consider that Ms Fox indicated that this change would operate later in the 2011 year and she would be less available as of term 3.

[34] On balance, I take this view as it is more consistent with the overall conduct of the parties that Ms Fox was indicating a desire to move away from primary employment with Wilderness earlier than 2012 particularly given that she had already sought to reduce her term 2 commitments largely on that same basis. I also accept the evidence of Ms Nielsen on that issue.

[35] In the lead up to the events of 6 May 2011, the respondent became aware that Ms Fox continued to be unhappy in her work and Mr Govan sought to provide some encouragement to her about that.

[36] On becoming aware of Ms Fox’s attendance at the workplace on 6 May 2011, Mr Govan greeted her by putting his arm around her shoulders in an attempt to hug her. This had occurred previously and although there was nothing sinister or inappropriate in that action given the circumstances, the applicant was not comfortable about it. Ms Fox then pulled back and indicated firmly that Ms Govan was not to touch her. This shocked Mr Govan and in due course the pair went outside of the immediate area and discussed this and other matters at great length.

[37] That discussion included whether the applicant’s views about personal contact should be applied generally in the workplace or only to Mr Govan as the ‘boss”. The two also discussed Ms Fox’s concerns about Mr Govan’s management style and Mr Govan’s understanding that the applicant considered that she was not sufficiently appreciated, which was confirmed. Further, they discussed Ms Fox’s disquiet about the workplace more generally.

[38] Mr Govan also expressed the view that the company had provided a number of benefits, including the staff accommodation, the decision not to require repayment of the TOIL or certain overpaid wages, the personal access to company equipment and vehicles, and that Ms Fox should be appreciative of those things. He also pointed out that he had recently provided positive feedback to Ms Fox regarding a school camp and that he was also seeking to build self confidence and wanted some support. Ms Fox indicated that she showed her gratitude by working hard and not smoking or drinking. In relation to the staff accommodation, Ms Fox indicated that she did not intend to use it and would not say thank you in relation to that matter.

[39] This was an animated and difficult discussion that could be overheard by other employees in the adjoining warehouse.

[40] In due course, Ms Nielsen joined the conversation and moved them further away from the warehouse. Ms Nielsen tried to calm Mr Govan who was becoming animated and distressed and to emphasise to Ms Fox the importance of mutual appreciation. During that conversation, Mr Govan made some reference to the potential to dismiss the applicant however there is no indication that this was done or inferred at that point. Mr Govan also informed Ms Fox that he had had enough and in effect she was not to go into the warehouse unless she said thank you.

[41] Mr Govan left to return to the warehouse and Ms Fox and Ms Nielsen remained for some minutes further discussing the issues. During the course of that conversation, Ms Fox also sought clarification as to whether she could cancel some scheduled shifts in week 4 of term 2 on the basis that she was expecting to work (directly) in a schools program at that time. Ms Nielsen expressed her concerns about that request and what she saw as a negative attitude to Wilderness and they further discussed the fact that Ms Fox was intending to pursue other primary employment. Ms Nielsen also invited the applicant to resign and informed Ms Fox that whilst she would be happy to have her work during term 3, the applicant would need to be more reliable in meeting commitments once rostered.

[42] Ms Nielsen offered an informal mediation to Ms Fox in an attempt to advance the matter before returning to the office area to care for her young child who was also in the workplace.

[43] Ms Fox left the immediate area and went to the staff car park. She also subsequently attended the office during this period to check her leave and TOIL balances.

[44] Shortly thereafter, Ms Nielsen rang the applicant on her mobile phone and she explained the importance to Mr Govan of having the applicant express some appreciation. Ms Nielsen indicated that although this may not mean anything to Ms Fox, it was important to Mr Govan. Ms Fox agreed to return to the workplace and Ms Nielsen understood that the applicant would attempt to resolve the issues with Mr Govan.

[45] Ms Nielsen then sent an email to the applicant advising that she would, unless unforeseen circumstances arose, need to work her scheduled shifts, that if she was unable to work during weeks 7, 8 or 9 of term 2 that a replacement could be arranged, and Ms Fox needed to confirm her availability in terms 3 and 4. I note that Ms Nielsen recalled this email through the outlook system some 45 minutes later after a subsequent discussion between Mr Govan and Ms Fox. 6

[46] Upon re-entering the workplace, Ms Fox approached Mr Govan (who was expecting her return) and immediately advised him that she was thankful for many things but would not say thank you in relation to the staff house. Mr Govan was distressed by that position and did not reply. Both parted without further discussion. This was later followed by a brief telephone discussion between Ms Fox and Ms Nielsen. During that discussion, Ms Fox was told by Ms Nielsen that in effect she would be taken off the roster. I note that Ms Nielsen in her evidence referred to being taken off the roster for the following week 7 however the effect of the discussion as reasonably understood by Ms Fox was that the removal was linked to the resolution of the issues.

[47] On 7 May 2011, Ms Fox sent an email to Wilderness seeking clarification of her employment status. Ms Nielsen sought to contact Ms Fox and have her call, which did not happen. Mr Govan did respond to the applicant’s email stating that Ms Fox had left the workplace twice; that Ms Nielsen had made it clear that the applicant had not been fired; Wilderness was looking for an indication of appreciation; and, in effect, had taken the applicant’s refusal to demonstrate appreciation as a resignation. 8

[48] On 8 May 2011, Ms Nielsen sent a letter to Ms Fox on behalf of the respondent stating that she was seeking to arrange a meeting to discuss her employment at Wilderness, which read as follows (quoted verbatim): 9

“8th May 2011

Dear Fiona

It seems you would like further clarification.

This will be the last opportunity to work for us you will need to ring me by 4pm to make a time to have a meeting with Andrew if you would prefer that I was present for this you need to let me know.

To clarify what happened on Friday 6th of May 2011. You and Andrew had discussions and both parties pointed out some grievances. Both parties pointed out things that need to change. For example you pointed out to Andrew you no longer felt comfortable receiving a hug from him, he respected your point of view. He needed from you a demonstration of gratitude by you thanking him; he understood it would be a challenge for you to do so as you felt that it was not going to be meaningful. But none the less he needs that as a demonstration that you are willing to be different and make some changes also.

You pointed out to me after Andrew had left that you do not understand you have always been a hard worker and one that does not drink smoke or swear. These are not the only qualities of a good worker. Some that we would like to see an improvement in are flexibility, not being fixed in a certain point of view and showing empathy and not stubbornness. Also to demonstrate trustworthiness, trust in you has been reduced as you have pulled out of a program in week 1 term 2 that you accepted as being booked. You have also proceeded to tell me you have made a mistake and that you had been booked elsewhere in week 2, 3 and 4. This is untruthful and unacceptable.

I want you to be honest and realistic when you make your decision, if you are no longer happy working at wilderness escape and you wish to gain employment elsewhere. That is fine, you may resign and go do that work, you need to make this decision today so I have the ability to replace you.

Ideally I know that Andrew and I would be more than happy for you to continue working for Wilderness Escape, under the following conditions. That you no longer ask to have time off when you have been booked by me already and the dates have been accepted. That you are able to give me dates of when you will be unavailable for term 3 and 4 by the end of this week. That you make the time to have a meeting with Andrew so that you may demonstrate you can be demonstrate by being different by saying a simple thank you. It can be as simple as “Thanks Mate for the house.” You could go further by saying I will try to be more appreciative of things as they arise.

To clarify, to work hard alone is not showing appreciation to others. It is just working hard, I work hard everyday and go out of my way to thank people for the work they do in all areas, as yes I do appreciate what they do and it makes me feel good saying it and it also makes the other feel good. This is the type of working environment I want to foster. I believe it is reasonable that we have asked you to say thank you.

I look forward to you response

Carla Neilson

HR Manager”

[49] This was accompanied by an SMS message from Ms Nielsen to Ms Fox indicating that this was her last opportunity to say thanks and that a response was required by 4.00pm that day.

[50] Ms Fox immediately sent an email in reply indicating that she appreciated the employment opportunities at Wilderness but did not believe that she had to thank the respondent for the Hindmarsh Island facilities and she never used them. This was followed up by a brief telephone conversation between Ms Fox and Ms Nielsen which did not advance the issues in any way.

[51] There was no further immediate contact between the parties and Ms Fox did not work again for Wilderness. In light of the removal from the roster, the applicant did not attend work in the week commencing 9 May 2011 as originally rostered and instead worked directly with another organisation. I do note that on the following Monday, Mr Govan was contacted by a school seeking an instructor for a camp in May and he provided Ms Fox’s contact details in that context.

[52] This application was lodged on 16 May 2011.

[53] Ms Fox attended the workplace on 17 May 2011 to collect her possessions including her paperwork and certificates. The respondent also made a number of indirect attempts to contact Ms Fox and have her return to her role at Wilderness.

WAS MS FOX DISMISSED BY WILDERNESS?

[54] Fair Work Australia will only have jurisdiction to deal with this application if Ms Fox was dismissed within the meaning of the Act. This is evident from s.385 which provides:

“385 What is an unfair dismissal

A person has been unfairly dismissed if FWA is satisfied that:

(a) the person has been dismissed; and

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

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

[55] Section 386 of the Act provides as follows:

“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.

(2) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(b) the person was an employee:

(i) to whom a training arrangement applied; and

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.”

[56] Only ss.386(1) is relevant to this application and both grounds in that subsection are contended by Ms Fox in the alternative.

[57] The applicant was engaged as a casual employee and work was confirmed around both work and employee availability, generally on a term by term basis. Although said in the context of a jurisdictional objection about continuous service, which does not arise here, the following remarks of the Full Bench in Shortland v The Smiths Snackfood Co Ltd 10, particularly at par [13], are of assistance:

“[10] As a matter of the common law of employment, and in the absence of an agreement to the contrary, each occasion that a casual employee works is viewed as a separate engagement pursuant to a separate contract of employment. Casual employees may be engaged from week to week, day to day, shift to shift, hour to hour or for any other agreed short period. In this sense no casual employee has a continuous period of employment beyond any single engagement. Moreover, it is common for a casual employee to transition between a period in which their engagements with a particular employer are intermittent and a period in which their engagements are regular and systematic and vice versa. It is against that background that s.384 must be construed.

[11] The criteria in s.384(2)(a) make it clear that s.384 does not proceed on the basis that a casual employee’s period of employment for the purposes of the unfair dismissal remedy starts and ends with each engagement as understood in the common law of employment.

[12] Moreover, it is more than tolerably clear that s.384 is concerned with how an employee’s period of employment is calculated for the purposes of s.382(a). Section 384(2) draws a distinction between a period of service and a period of employment. It also draws a distinction between a period of continuous service and a period of service: a period of continuous service can be made up of a series of periods of service, some of which count towards the period of continuous service (ie. where the conditions in s.384(2)(a)(i) and (ii) are met) and some of which do not (ie. where one of the conditions in s.384(2)(a)(i) or (ii) is not met). It is clear from the language of s.384(2) that an employee may have series of contiguous periods of service with an employer that may count towards a single period of employment with that employer. Any given period of service in such a contiguous series of periods of service will count towards the employee’s period of employment only if the requirements in s.384(2)(a)(i) and (ii) are met. Section 384(2) is concerned only with determining which periods of service in such a contiguous series count toward the employee’s period of employment with the employer for the purposes of s.382(a).

[13] Continuous service by a casual employee who has an established sequence of engagements with an employer is broken only when the employer or the employee make it clear to the other party, by words or actions that there will be no further engagements. The gaps between individual engagements in a sequence of engagements should not be seen as interrupting the employee’s period of continuous employment within the meaning of s.384. In particular, a period of continuous service within the meaning of s.384(1) is not to be seen as broken by a period of ‘leave’ or an absence due to illness or injury.”

[58] In the case of Ms Fox, although the rosters were not yet set for terms 3 and 4, it is evident that save for the events leading to this application and Ms Fox’s stated future intentions, there was a mutual expectation that the applicant would have continued employment. In that context, the removal from the rosters or the withdrawal of consideration for future employment by either of the parties would represent an end to the employment of Ms Fox for present purposes.

[59] The question is however whether that cessation represented a dismissal in this case.

[60] In terms of a potential dismissal at the initiative of the employer, there are three points in time of potential significance here.

The status following the initial discussion between Ms Fox, Mr Govan and Ms Nielsen on 6 May 2011.

[61] At this point, there had been a difficult discussion that included the necessity for Ms Fox to indicate some appreciation related to her employment, and in particular in relation to the staff housing, and an indication from Mr Govan that she was not to come into the workshop unless she said thank you.

[62] Ms Fox was seeking to be released from some of her term 2 commitments and Wilderness was happy to continue with her employment, albeit with some concerns as to the reliability of her commitments. The applicant was invited to resign if she wished. This all strongly suggests that neither party considered the relationship to be at an end at that point, and this is objectively the case.

The Status immediately after the second exchange with Mr Govan and the subsequent telephone discussion with Ms Nielsen on 6 May 2011.

[63] It was evident at this point that there was a prerequisite that Ms Fox say thank you, an indication that she should not come into the warehouse unless she did so, a further significant deterioration in the relationship with Ms Govan, and the removal of the applicant from the roster pending the resolution of the issues.

[64] The email about the remaining term 2 dates and the need to confirm availability for terms 3 and 4 had been recalled, however whilst this may have been considered to be the withdrawal of future employment offers more generally, in isolation the objective effect of that action is unclear.

[65] In my view, the status of the employment relationship was problematic but still uncertain at this point.

The status following the exchange of views on 7 and 8 May 2011.

[66] The applicant had sought clarification of her employment status and Wilderness had stated that it had not dismissed her, however Ms Fox’s actions, including the refusal to express appreciation, was taken by the respondent to be a resignation.

[67] Wilderness had also indicated that it would be happy for Ms Fox to “continue” employment subject to certain conditions. These included the need to reply by 4.00pm on 8 May and a commitment to meeting with Mr Govan and to expressing appreciation to him. This requirement focused upon the staff housing, but not exclusively.

[68] Ms Fox had replied indicating that she appreciated being employed over the last three years but that she was not willing to say thank you for the staff housing as she did not intend to use it. This reply must by implication also suggest that Ms Fox was not willing to meet with Mr Govan to do so, as required.

[69] Given that Ms Fox had been removed from the roster, had been informed that her actions were considered to be a resignation and she had declined to meet with Mr Govan and to express appreciation for a matter which she understood was required, there is little doubt that if it was still on foot, the employment relationship effectively ended at this point.

[70] In terms of a resignation this is to be assessed having regard to the considerations established by s.386(1)(b) of the Act and a consideration as to whether the applicant was forced to resign.

[71] Although applied under the previous Act, the following approach of the Full Bench of the Australian Industrial Relations Commission in O’Meara v Stanley Works Pty Ltd 11 in my view remains generally apposite:

“Termination at the initiative of the employer

[19] The circumstances in which a resignation, while apparently a termination of employment by the employee, nevertheless constitutes a termination at the initiative of the employer, have been considered in a number of cases. A prominent authority is the decision of a Full Court of the Federal Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd (Mohazab). In that case, the employer made a threat that unless the employee resigned the employer would ask the police to charge the employee with an offence. The analysis of the concept of termination at the initiative of the employer by the Court in that case has not always been quoted in full. It is desirable that we do so in this case. After referring to dictionary definitions of the term “initiative” and the convention giving rise to the statutory provisions, the Full Court said:

“These definitions reflect the ordinary meaning of the word ‘initiative’. Viewed as a whole, the Convention is plainly intended to protect workers from termination by the employer unless there is a valid reason for termination. It addresses the termination of the employment relationship by the employer. It accords with the purpose of the Convention to treat the expression ‘termination at the initiative of the employer’ as a reference to a termination that is brought about by an employer and which is not agreed to by the employee. Consistent with the ordinary meaning of the expression in the Convention, a termination of employment at the initiative of the employer may be treated as a termination in which the action of the employer is the principal contributing factor which leads to the termination of the employment relationship. We proceed on the basis that the termination of the employment relationship is what is comprehended by the expression ‘termination of employment’: Siagian v Sanel (1994) 1 IRCR 1 at 19; 54 IR 185 at 201. In many, if not most, situations the act of the employer that terminates the employment relationship is not only the act that puts in train the process leading to its termination but is, in substance, the entire process. An example would be a situation where the employer decided to dismiss an employee and did so orally or in writing with immediate effect. Other situations may be more complex as exemplified by the circumstances considered by Moore J in Grout v Gunnedah Shire Council (1994) 1 IRCR 143; 57 IR 243 where an employee had given written notice purporting to terminate the employment relationship. The notice was not reasonable but was accepted by the employer which later refused to allow the employee to withdraw the notice. A question arose as to whether that was a termination of the employment at the initiative of the employer and his Honour held it was. His Honour said at 160-161; 259:

‘I have already said that Div 3 concerns termination at the initiative of the employer. The respondent submits that “initiate” means “to begin, commence, enter upon; to introduce, set going, or initiate”: see Shorter Oxford English Dictionary. In this matter, it is submitted, it was the applicant and not the respondent that initiated the termination by writing the letter of 18 May. This, in my opinion, gives the expression “termination” in the Act, read in conjunction with Art 3 of the Convention which speaks of “termination … at the initiative of the employer”, a narrow meaning that was not intended. A principal purpose, if not the sole purpose, of Div 3 is to provide an employee with a right to seek a remedy in circumstances where the employee did not voluntarily leave the employment. An employee may do some act which is the first in a chain of events that leads to termination. An example would be an employee who engaged in misconduct at work which ultimately led to the employer dismissing the employee. However, that situation and the present are not situations where the termination was at the initiative of the employee. In both instances the step or steps that effectively terminated the employment or purported to do so were taken by the employer.’

In these proceedings it is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer but plainly an important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship. This issue was addressed by Wilcox CJ in APESMA v David Graphics Pty Ltd (unreported, Industrial Relations Court of Australia, 12 July 1995, Wilcox CJ). His Honour, at p 3, referred to the situation of an employee who resigned because ‘he felt he had no other option’. His Honour described those circumstances as:

‘… a termination of employment at the instance [of] the employer rather than of the employee.’

And at p 5:

‘I agree with the proposition that termination may involve more than one action. But I think it is necessary to ask oneself what was the critical action, or what were the critical actions, that constituted a termination of the employment.’”

[20] Moore J, one of the members of the Full Court in Mohazab, addressed the question further in Rheinberger v Huxley Marketing Pty Limited (Rheinberger). His Honour said, after referring to extracts from Mohazab:

“However it is plain from these passages that it is not sufficient to demonstrate that the employee did not voluntarily leave his or her employment to establish that there had been a termination of the employment at the initiative of the employer. Such a termination must result from some action on the part of the employer intended to bring the employment to an end and perhaps action which would, on any reasonable view, probably have that effect. I leave open the question of whether a termination of employment at the initiative of the employer requires the employer to intend by its action that the employment will conclude. I am prepared to assume, for present purposes, that there can be a termination at the initiative of the employer if the cessation of the employment relationship is the probable result of the employer's conduct.”

“[21] In this Commission the concepts have been addressed on numerous occasions and by a number of Full Benches. In Pawel v Advanced Precast Pty Ltd (Pawel) a Full Bench said:

“[13] It is plain that the Full Court in Mohazab considered that an important feature in the question of whether termination is at the initiative of the employer is whether the act of an employer results directly or consequentially in the termination of the employment and that the employment relationship is not voluntarily left by the employee. However, it is to be noted that the Full Court described it as an important feature. It plainly cannot be the only feature. An example will serve to illustrate this point. Suppose an employee wants a pay rise and makes such a request of his or her employer. If the employer declines and the employee, feeling dissatisfied resigns, can the resignation be said to be a termination at the initiative of the employer? We do not think it can and yet it can be said that the act of the employer i.e. refusing the pay rise, has at least consequentially resulted in the termination of the employment. This situation may be contrasted with the position where an employee is told to resign or he or she will be terminated. We think that all of the circumstances and not only the act of the employer must be examined. These in our view, will include the circumstances giving rise to the termination, the seriousness of the issues involved and the respective conduct of the employer and the employee. In the instant case the uncontested factual findings are that the applicant had for almost the whole of his employment performed welding duties; that there was no objective threat to his health and safety involved in the requirement that he undertake welding duties so long as it was not on a continuous basis and that the welding he was required to do was not continuous.”

[22] In the Full Bench decision of ABB Engineering Construction Pty Ltd v Doumit (ABB Engineering) it was said:

“Often it will only be a narrow line that distinguishes conduct that leaves an employee no real choice but to resign employment, from conduct that cannot be held to cause a resultant resignation to be a termination at the initiative of the employer. But narrow though it be, it is important that that line be closely drawn and rigorously observed. Otherwise, the remedy against unfair termination of employment at the initiative of the employer may be too readily invoked in circumstances where it is the discretion of a resigning employee, rather than that of the employer, that gives rise to the termination. The remedies provided in the Act are directed to the provision of remedies against unlawful termination of employment. 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.”

[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 to 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.” 12

[72] An objective consideration of the respondent’s conduct is required. If the applicant had resigned, the question would be whether the employer’s course of conduct was such that resignation was the probable result or that the applicant had no effective or real choice but to resign?

[73] In relation to any form of dismissal in a case such as this, it is also important to look beyond the stated intentions of the parties and to objectively consider the effect of the parties’ action in the context in which they occurred. 13

[74] There was nothing unreasonable about the concept of expressing mutual appreciation and Wilderness had been generous to the employees in relation to its attitude to the TOIL and other overpayments, and in providing access to company equipment. However, the manner in which it sought that indication of appreciation led to Ms Fox feeling threatened and uncomfortable and the focus upon the staff housing as an issue was in her case, unfair and unhelpful. The repeated insistence upon an expression of appreciation in these circumstances as the basis for employment to continue became the focus.

[75] The applicant’s final refusal to respond positively was not a resignation, but rather in reality, the acceptance of the inevitable that Wilderness was treating the relationship as being at an end and the employer was suggesting a basis upon which it might have been resumed, which she was not willing to accommodate.

[76] On balance, I consider that the applicant was dismissed within the meaning of the Act. That is, the fundamental reason for the conclusion of the relationship was that the respondent was seeking an expression of personal appreciation from Ms Fox, including in relation to the staff housing, and the applicant’s failure to do so led to Wilderness purporting to treat her conduct as a resignation and removing her from the roster and in effect, from employment more generally. In other words, the cessation of the employment relationship was objectively, the probable result of the employer's course of conduct.

WAS THE DISMISSAL OF MS FOX UNFAIR?

[77] I have found that the applicant was dismissed by the respondent, the employer is not a small business within the meaning of the Act and this is not a matter involving a redundancy. As a result, I must consider whether the dismissal was harsh, unjust or unreasonable.

[78] The Act relevantly provides as follows:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that FWA considers relevant.”

[79] I have earlier set out the general contentions of the parties. The applicant contended that the dismissal met each of the criteria established by s.385(1)(b) of the Act. The respondent did not concede that any (reviewable) dismissal found by the Tribunal would be unfair however nothing specific was put in regard to the specific considerations established by the Act. However, Wilderness did raise issues of alleged unsatisfactory attitude and work ethic as part of its final case.

[80] It is clear that s.387 contemplates that an overall assessment as to the nature of the dismissal must be made by Fair Work Australia. In so doing, the Act sets out a number of considerations that are to be taken into account.

[81] It is convenient to use the various provisions of s.387, with reference to the relevant circumstances, to outline my consideration of the matter.

[82] It is evident that in applying these considerations, and this aspect of Fair Work Australia’s jurisdiction more generally, it is necessary to ensure that a “fair go all round” is accorded to both the employer and employee concerned. 14

Section 387(a) – whether there was a valid reason for the dismissal related to the applicant’s capacity or conduct (including its effect on the safety and welfare of other employees).

[83] Valid in this context is generally considered to be whether there was a sound, defensible or well founded reason for the dismissal. Further, in considering whether a reason is valid, the requirement should be applied in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. That is, the provisions must be applied in a practical, commonsense way to ensure that the employer and employee are each treated fairly. 15

[84] I have earlier made findings about the requirement for the applicant to express appreciation and the context in which that occurred. There were also genuine concerns about the applicant’s commitment to the roster and the on-going working relationship was becoming problematic given the attitude of both Mr Govan and Ms Fox. These elements were not however valid reasons for dismissal, at least at that point.

[85] The issues of work ethic have in my view been exaggerated for present purposes and also do not represent a valid reason for dismissal, in isolation or as part of the broader context.

[86] In that light, there was no valid reason to dismiss the applicant.

Section 387(b) – whether the applicant was notified of the reasons for dismissal.

[87] The applicant was not directly notified of the reasons however the concerns about her attitude and the need to improve her commitment to the rosters once issued was made known during the most recent discussions.

Section 387(c) – whether the applicant was given an opportunity to respond to any reason related to her capacity or conduct.

[88] The reasons for dismissal relate indirectly to the applicant’s capacity or conduct. Ms Fox was given an opportunity to respond to those concerns.

Section 387(d) – any unreasonable refusal by the respondent to allow the applicant to have a support person present to assist in any discussions relating to her dismissal.

[89] No request for a support person was made by the applicant in connection with her dismissal.

Section 387(e) – if the dismissal is related to unsatisfactory performance by the applicant – whether she has been warned about that unsatisfactory performance before the dismissal.

[90] The applicant’s dismissal was not directly related to unsatisfactory performance. There was certainly no indication that the applicant would be dismissed in relation to her work performance, notwithstanding Mr Govan’s reservations about those matters.

[91] The applicant was informed that, amongst other matters, the refusal to say thank you would be treated as a resignation.

Section 387(f) – the degree to which the size of the respondent’s enterprise would be likely to impact on the procedures followed in effecting the dismissal.

Section 387(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.

[92] The respondent is a not a large organisation. It has some dedicated human resources expertise but Ms Nielsen does not have formal qualification or significant human resources experience. This has influenced how the matters were dealt with and must be considered as part of the overall circumstances.

Section 387(h) – any other matters that FWA considers relevant.

[93] The rather unusual circumstances leading to the dismissal are relevant. This includes the rather naive and unhelpful insistence on Ms Fox having to say thank you and the rather inflexible insistence by the applicant that she not do so.

[94] The length and nature of her service are also relevant considerations.

[95] Having regard to all of the considerations raised by s.387 of the Act, I find that the dismissal of the applicant was unreasonable. This means that it was unfair within the meaning of the Act.

REMEDY

[96] Division 4 of Part 3-2 of the Act provides as follows:

Division 4—Remedies for unfair dismissal

390 When FWA may order remedy for unfair dismissal

(1) Subject to subsection (3), FWA may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) FWA 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) FWA may make the order only if the person has made an application under section 394.

(3) FWA must not order the payment of compensation to the person unless:

(a) FWA is satisfied that reinstatement of the person is inappropriate; and

(b) FWA 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.

391 Remedy—reinstatement etc.

Reinstatement

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

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

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

(1A) If:

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

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

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

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

Order to maintain continuity

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

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

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

Order to restore lost pay

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

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

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

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

392 Remedy—compensation

Compensation

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

Criteria for deciding amounts

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

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

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

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

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

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

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

(g) any other matter that FWA considers relevant.

Misconduct reduces amount

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

Shock, distress etc. Disregarded

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

Compensation cap

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

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

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

(6) The amount is the total of the following amounts:

(a) the total amount of remuneration:

(i) received by the person; or

(ii) to which the person was entitled;

(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and

(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.

393 Monetary orders may be in instalments

To avoid doubt, an order by FWA under subsection 391(3) or 392(1) may permit the employer concerned to pay the amount required in instalments specified in the order.

[97] The prerequisites of ss.390(1) and (2) have been met.

[98] It is clear from the terms of s.390(3)(a) that, in circumstances where a remedy is appropriate, compensation must not be ordered unless the Tribunal is satisfied that reinstatement is inappropriate. As a result, it is proper to firstly consider whether reinstatement is appropriate.

[99] The applicant does not seek reinstatement however the respondent maintains that her position has always been available to her, and more recently, without further conditions. I do not consider that reemployment is now appropriate given all of the circumstances including Ms Fox’s views on that concept and importantly, the obvious mutual resentment that has now developed between the parties. However, all of these circumstances are relevant to the consideration of compensation.

[100] Accordingly, I must, having regard to the considerations in the Act, determine whether compensation in lieu of reinstatement is appropriate and if so, to what extent. Ms Fox sought something in the order of $17,500 in compensation after taking into account her post employment income. In effect, Wilderness opposed any consideration of compensation and has in turn foreshadowed an application for costs against Ms Fox.

[101] Section 392(2) requires me to take into account all of the circumstances of the case including the factors that are listed in paras (a) to (g). These factors include in ss.(g) any other relevant considerations. Without detracting from the overall assessment required by the Act, it is convenient to discuss the identified considerations under the various provisions.

The effect of the order on the viability of the employer’s enterprise

[102] The respondent conducts a substantial business and there is no indication that any order for compensation contemplated by the Act would impact upon the viability of the business.

The length of the person’s service with the employer

[103] The applicant was employed between 2007 and mid 2011. Subject to the consideration of the other circumstances impacting upon the varying nature of that service, this must be taken into account.

The remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed

[104] This involves in part a consideration of the likely duration of the applicant’s employment in the absence of what I found to have been an unfair dismissal.

[105] The applicant was apparently paid differing daily rates depending upon the nature of the activities plus additional “TOIL” benefits associated with overnight camps and expeditions. Other meal payments were made however these are related to disbursements and are not presently relevant. Given the mix between camping, expeditions and other activities I consider that an average daily payment of $230 is appropriate for present purposes. 16

[106] After week one of term 2, the applicant was rostered to work 32 days on camps (with many of these presumably requiring overnight stays), three daily programs, and three days of training. The applicant would also in the normal course have worked some additional time in the warehouse however Ms Fox was also increasingly seeking to be released to do other work. During 2010, Ms Fox worked at times as much as about four and half days per week. However, in term 3 of last year, this meant working in the order of 23 days, with about half of these on camps. Term 4 is the quietest term in relation to client demands and in 2010, Ms Fox worked in the order of 14 days for Wilderness. 17

[107] In the absence of the dismissal, whilst the respondent would probably have maintained its offers of employment, the attitude of Ms Fox to her ongoing employment means that it would be reasonable to predict that a decline in the levels of employment would have occurred beyond the end of term 2.

[108] Accordingly, in all of the circumstances, it is reasonable to anticipate some employment in terms 3 and 4 of 2011 but at lower levels. I am not prepared to project any employment for present purposes beyond 2011 in the circumstances of this case.

[109] I propose to use ninety percent of the rostered work for the balance of term 2 2011, and seventy percent of the average for terms 3 and 4 based upon 2010 levels. This means a total in the order of 64 days of work at $230 per day, making a total of $14,720.

The efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal

[110] The applicant has been making efforts to secure employment, albeit in her chosen field. This brings into focus the fact that Ms Fox has apparently refused to contemplate the potential to receive any employment from Wilderness.

[111] Although the relationship is now beyond restitution, it is conceivable that the applicant could earlier have reasonably accepted some further employment with Wilderness, at least at the point that there was no suggestion of any conditions being attached to that step. Wilderness had referred Ms Fox to one of the schools which was seeking to directly engage an instructor after the conclusion of the relationship. The applicant was in demand by Wilderness, particularly in relation to camps with female students, and this should have been known to her. Further, sessional employment, which was largely field based with little direct contact with Mr Govan, could have been explored.

[112] In these circumstances, some discount on the compensation otherwise payable should be made. The discount however needs to recognise that during the latter part of the period under consideration the applicant has in fact mitigated her losses by undertaking some significant (alternative) employment and that income will itself be taken into consideration pursuant to s.392(2)(e) of the Act.

[113] I consider that a discount of fifteen percent in relation to the projected term 3 and 4 2011 income is appropriate. This means that the total projected lost income is reduced by $897 making a provisional total of $13,823.

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

[114] The applicant earned $14,560 from employment following her dismissal and this should be considered in the final assessment of the compensation. Given that Ms Fox was not employed full-time and continued to undertake additional employment during her time with Wilderness, some of this income was not in reality alternative employment and would have been earned in any event. As a result, and given the basis upon which I have calculated the provisional compensation amount, I consider that in this case 70 percent of that income should be taken into account for present purposes. This means an adjustment to the compensation amount by $10,192.

[115] The adjusted provisional compensation figure therefore becomes $3,631.

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

[116] It is not reasonable to make further allowance for income between the making of the order and the actual compensation given the patchy nature of the applicant’s employment since her dismissal and the short time between the final hearing and this decision.

Any other matter that FWA considers relevant and the remaining statutory parameters

[117] Subject to the limitations under the Act, I have considered all of the circumstances of this case in determining the remedy.

[118] I propose to make no allowance for contingencies given the basis of the above findings and the fact that almost all of the projected losses have already occurred. 18

[119] There is no relevant misconduct that should reduce the amount otherwise payable as compensation, as provided by s.392(3) of the Act.

[120] Consistent with s.392(4) of the Act, I will make no allowance for any shock, distress or humiliation that may have been caused by the manner of the dismissal.

[121] The amount of compensation that I assess as appropriate is far less than the maximum prescribed by s.392(5) of the Act as applied in this matter.

CONCLUSIONS AND ORDERS

[122] I find that the applicant was dismissed and that such was unfair within the meaning of the Act.

[123] I find that reinstatement is not an appropriate remedy in this case.

[124] I find that compensation is appropriate. Having regard to the considerations established by s.392 of the Act and to the present statutory charter, I find that compensation to the applicant should comprise a payment of $3,631.

[125] The compensation payment, less any required deduction of taxation, is to be made by Wilderness within 14 days of this decision.

[126] An order to the above effect has been issued in conjunction with this decision.

COMMISSIONER

Appearances:

P Scragg of Peter Scragg and Associates (with permission) for Ms Fox.

A Govan and C Nielsen for Wilderness Escape Outdoor Adventures Pty Ltd.

Hearing details:

2011
Adelaide
September 30, November 15.

Final written submissions:

2011
November 18.

1 The factors leading to that conclusion included the matter involved multiple witnesses and issues of credit are considerations.

2 This was done in a manner consistent with the statutory charter of Fair Work Australia. See the discussion of some of the relevant considerations for a similar Tribunal in Minogue v HREOC [1999] FCA 85. The respondent was also earlier assisted by a solicitor and formal submissions were filed on its behalf which reflected that assistance.

3 Section 396 of the Act requires that the existence of a dismissal be determined in advance of the substantive application.

4 Nielsen - exhibit R4

5 There is no suggestion that Ms Fox sought payment for any work undertaken when attending of her own volition.

6 The email recalled was that provided earlier in the day not an email sent some time earlier involving work in terms 3 and 4 more generally as suggested on behalf of the applicant in these proceedings.

7 Transcript - PN1801.

8 Attachment FF4 to Exhibit A1.

9 Attachment FF5 to Exhibit A1.

10 [2010] FWAFB 5709, 16 September 2010, per Lawler VP, Drake SDP and Lewin C.

11 PR973462, 11 August 2006 per Giudice J, Watson VP and Cribb C. This appeal was determined under the provisions of the Workplace Relations Act 1996 pursuant to the provisions of the Act as in force prior to the coming into operation of the Workplace Relations Amendment (Work Choices) Act 2005. As a result, the primary jurisdictional question was whether the applicant had been dismissed by the employer which was considered having regard to the formulation in the Termination of Employment Convention which in turn referred to termination at the initiative of the employer.

12 PR973462 (footnotes omitted).

13 See the discussion of related concepts in Dover-Ray v Real Insurance Pty Ltd[2010] FWAFB 2670, 9 April 2010 per Lawler VP, Richards SDP and Larkin C.

14 Section 381(2) of the Act.

15 Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 as cited in Potter v WorkCover Corporation, per Ross VP, Williams SDP, Foggo C PR948009, 15 June 2004 and endorsed by the Full Bench in Industrial Automation Group Pty Ltd T/A Industrial Automation [2010] FWAFB 8868, 2 December 2010 per Kaufman SDP, Richards SDP and Hampton C at par [36].

16 There is conflict in the evidence as to the correct payments including an indication that the applicant’s normal camping day payment was $220 per day plus an additional payment for TOlL if there was an overnight stay. There is also an indication in the evidence of Mr Govan that different daily payments apply to various activities. I also note that some further material going to these matters was provided by the respondent however that latter material could not be tested due to the circumstances of its supply to FWA (after the hearing had concluded and in response to some supplementray material supplied by the applicant with leave of the Tribunal). I also note that some of the material supplied by the applicant in that context went beyond the extent of leave given. Accordingly, I have not relied on any of the post-hearing material other than that supplied by the applicant dealing directly with exhibit MFIR7 and confirmation of the applicant’s post dismissal income.

17 The 2010 figures are drawn predominately from the evidence of Ms Nielsen - including exhibit R4.

18 See the discussion of contingencies in Ellawala v Australian Postal Corporation AIRC Print S5109, 17 April 2000 per Ross VP, Williams SDP and Gay C and in Enhance Systems Pty Ltd v James Cox AIRC PR910779, 31 October 2001 per Williams SDP, Acton SDP and Gay C.

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