Ms Gillian Gunning v The Seymour Club

[2013] FWC 6206

[2013] FWC 6206

FAIR WORK COMMISSION

DECISION

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

Ms Gillian Gunning
v
The Seymour Club
(U2013/5524)

COMMISSIONER BISSETT MELBOURNE, 28 AUGUST 2013

Application for relief from unfair dismissal - casual employee - dismissed - no valid reason related to capacity or conduct - compensation ordered.

[1] Ms Gillian Gunning made an application on 3 January 2013 pursuant to s.394 of the Fair Work Act 2009 (the Act) seeking relief from unfair dismissal. Ms Gunning was employed by The Seymour Club Limited (the Respondent) as a casual employee. She first worked for the Respondent from December 2008 to October 2009. She returned in August 2011 for two months before leaving for the birth of her child. She returned after her parental leave on 10 April 2012. She worked until 23 December 2012 when she was removed from the roster.

[2] The Applicant is protected from unfair dismissal

[3] The Act states:

382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.

Note: High income threshold indexed to $123,300 from 1 July 2012

383 Meaning of minimum employment period

The minimum employment period is:

(a) if the employer is not a small business employer—6 months ending at the earlier of the following times:

(i) the time when the person is given notice of the dismissal;

(ii) immediately before the dismissal; or

(b) if the employer is a small business employer—one year ending at that time.

384 Period of employment

(1) An employee’s period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee.

(2) However:

(a) a period of service as a casual employee does not count towards the employee’s period of employment unless:

(i) the employment as a casual employee was on a regular and systematic basis; and

(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis; and

(b) if:

(i) the employee is a transferring employee in relation to a transfer of business from an old employer to a new employer; and

(ii) the old employer and the new employer are not associated entities when the employee becomes employed by the new employer; and

(iii) the new employer informed the employee in writing before the new employment started that a period of service with the old employer would not be recognised;

the period of service with the old employer does not count towards the employee’s period of employment with the new employer.

[4] Hence, a person is protected from unfair dismissal if the person has completed the minimum employment period and the person is covered by a relevant industrial instrument or earns less than the high income threshold.

[5] In this case there is no dispute that the applicant is covered by a relevant industrial instrument or earns less than the high income threshold.

[6] The minimum employment period is determined by reference to the size of the employer’s business. Whilst the Respondent did take a jurisdictional objection on the grounds that it was a small business this objection was subsequently withdrawn and is not pressed.

[7] The Applicant is therefore protected from unfair dismissal if she has completed at least six months employment.

[8] The Applicant was employed as a casual employee. She claims, and the Respondent accepts, 1 that her employment as a casual employee was on a regular and systematic basis. Further, there is no dispute that she had a reasonable expectation of continuing employment. The Applicant was employed for greater than six months at the time her employment ended.

[9] For these reasons I find that the Applicant is protected from unfair dismissal.

The Applicant was dismissed

[10] The Act states:

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) the dismissal was not consistent with the Small Business Fair Dismissal Code; 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.

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

(c) the person was demoted in employment but:

(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.

[11] The Applicant claims that she was dismissed from her employment. The Respondent says that she was not dismissed, rather she was ‘suspended’ from the roster. Whether the Applicant was dismissed or not is critical to the resolution of the claim for unfair dismissal. The resolution of this must be based on an objective consideration of the facts.

[12] Ms Gunning’s evidence is that she returned from parental leave for her last period of work with the Respondent on 10 April 2012. On 28 April 2012 she moved into a supervisory role.

[13] Ms Gunning gave evidence that an issue arose as to the staff Christmas party in December 2012. As a result she, along with another staff member, drafted a letter to management. She gave the draft letter to another staff member but, given the apparent lack of support for the letter did nothing else about it.

[14] On 20 December 2013, Ms Gunning says she had the following conversation with Ms Kellie Rogers, the (trainee) Operations Manager,:

I said ‘So what’s happening to the Christmas party?”

Kellie said ‘I don’t know, Clyde’s cancelled Christmas!’ and laughed

I said ‘So what’s going to happen with the tip money?’

Kellie said ‘I don’t know, there is some money in petty cash, some might have been banked and what’s still in the tin (in the cashier’s booth).’ 2

[15] Ms Gunning says she was not aware that she had been taken off the roster until 18 December 2012 when she saw the roster for the period commencing 24 December 2011. Prior to that she says she worked almost every Saturday and Sunday and often a week day as well. The only time she had not worked on a weekend was one weekend she organised to have off to visit family in Sydney and another when she attended a first aid course.

[16] On 21 December 2012, the Applicant received a note from Ms Rogers asking her to return the keys she had for the venue. Ms Gunning says she received these keys on 10 May 2012 and had them continuously since that date. She needed the keys to open up the venue on Saturday mornings and to lock up on Sunday nights.

[17] Ms Gunning took the removal from the roster and the request to return the keys, in conjunction with her conversation with Ms Rogers, as an indication that she was no longer an employee of the Respondent.

[18] On 2 January 2013, the Applicant sent an email to the Respondent in the following terms:

Attention Operations Manager,

I acknowledge that my employment was terminated from the Seymour Club on the 23rd of December, 2012

I was no longer on the roster and the return of my venue keys was requested by management.

I require a letter of separation from the venue due to person financial reasons by 5pm this afternoon, 2/1/13.

Gillian Gunning 3

[19] As a result of this, the Applicant says she received a separation certificate. 4 On 3 January 2013 she lodged her application with the Fair Work Commission.

[20] The Applicant has not been offered any work by the Respondent since she finished work on 23 December 2012.

[21] Ms Gunning’s evidence is that training for a supervisor would normally have the trainee working with a supervisor resulting in an extra person was on shift.

[22] Ms Kellie Rogers, the trainee Operations Manager for the Respondent, gave evidence that she has no authority to terminate the employment of casual staff although she does have authority to hire them. Only Mr Clyde Hillier, the General Manager, has authority to terminate employment. She says that, whilst she did issue a separation certificate to the Applicant, she had no authority to do so. She says she thought of contacting Centrelink with respect to the error but by the time she thought of it the Applicant had lodged her application with the Commission.

[23] Ms Rogers agrees that the Applicant raised the Christmas party with her.

[24] Ms Rogers’ evidence is that she was instructed to suspend shifts from the roster by Mr Hillier. He told her that she should drop staff who were doing one to two shifts per week. 5

[25] Ms Rogers gave further evidence that Ms Gunning approached her when she was dropped from the roster and Ms Rogers’ explained that there had been a discussion between Ms Rogers and Mr Hillier on training and development of new staff. New staff had been rostered so that they could be evaluated and be given experience. She says the Applicant seemed happy with the explanation. 6

[26] When questioned about the employees who actually appeared on the roster for the period 23 December 2012 - 6 January 2013 Ms Rogers could not identify any staff who were new to employment with the Respondent.

[27] Ms Rogers says that training of general staff is undertaken during the week whilst training of supervisors is undertaken with another supervisor.

[28] Ms Rogers’ evidence is that only she and one other employee are permanently allocated keys and that a relieving supervisor would not have keys on an on-going basis.

[29] Ms Rogers’ also gave evidence that she did not know how long it was intended to keep Ms Gunning off the roster. 7

[30] Mr Hillier is the General Manager for the Respondent. He has held that position since 2000. He delegates work to Ms Rogers on a daily basis and confirmed that she has no power to fire staff. Mr Hillier is present at the Respondent’s premises one day a week although he is contactable by phone and email the rest of the time.

[31] Mr Hillier’s evidence is that his strategy was to increase the number of people available for employment with the Respondent. He was constantly asking Ms Rogers to get additional resources and to trial potential employees. The strategy to increase the pool of resources was to suspend other casual employees to bring new staff on. 8 He says that shifts are filled by allocating whoever is available to do them.

[32] For the roster period 23 December 2012 - 6 January 2013 Mr Hillier could not identify any new staff on the roster. He says that is Ms Rogers’ responsibility.

[33] Mr Hillier, when confronted with Ms Rogers’ evidence that she did not know how long it was intended to take Ms Gunning off the roster, said ‘That’s true, we weren’t sure.’ 9

[34] Mr Hillier says that if Ms Gunning was concerned about being removed from the roster she could have called and spoken to him but she did not. His evidence is that another employee, Ms Linda Young, who was suspended from the roster at the same time as the Applicant, was contacted by him and offered shifts again when she withdrew her unfair dismissal application with the Commission.

[35] Mr Hillier says that all relieving supervisors are required to hand in their keys.

Consideration

[36] I am satisfied that Ms Gunning was employed on a regular and systematic basis. Ms Gunning’s pay records show that she earned (gross) between around $500 and $700 per week. There are some weeks where she earned much less and occasionally substantially more but these are rare. It appears, from an examination of her pay records, that she worked between two and three shifts per week. Occasionally she worked one shift only and at times four shifts. There is a reasonable pattern on the hours and shifts worked. She worked every week from the time she commenced in April 2012. 10 Ms Gunning had not been ‘suspended’ from shifts in the past for training or any other reason.

[37] I am satisfied that Ms Gunning was issued with keys in May 2012 and that she retained those keys until Ms Rogers requested they be returned on 21 December 2012. 11

[38] The evidence of Ms Rogers and Mr Hillier suggests that Ms Gunning was not replaced on the roster by a person ‘in training’ because, as Ms Rogers herself said a new regular staff member would be trained during the week and a supervisor is trained by being placed with another supervisor. There is no evidence of this on the roster for the period commencing 24 December 2012. Further, neither Ms Rogers nor Mr Hillier could indicate anyone on the roster that Ms Gunning had been ‘suspended’ from as being new.

[39] If Ms Gunning had been removed from the roster to allow training of new staff it should have been possible for Ms Gunning to know how long that removal would last. Both Ms Rogers and Mr Hillier said they did not know how long Ms Gunning would be ‘suspended’ from the roster.

[40] I do not accept the evidence of Ms Rogers that the applicant was happy when told why she was taken off the roster. Ms Gunning was removed from the roster with no indication when she would return. She was required to hand back keys necessary to enable her to open and close the venue after having them for over six months.

[41] An objective consideration of the actions of the Respondent, including Mr Hillier and Ms Rogers, leads me to conclude that Ms Gunning was dismissed from her employment. Whilst I note that Mr Hillier says Ms Rogers does not have the authority to terminate an employee’s employment with the Respondent I find that she did terminate the Applicant’s employment by removing her from the roster with no indication when she would be reinstated to the roster and requiring her to return keys. Whilst Ms Rogers may not have had formal authority to dismiss an employee she did act on the instructions of Mr Hillier to suspend those on the roster with only one or two shifts. By removing and not reinstating Ms Gunning to the roster Ms Rogers gave effect to the direction of Mr Hillier. It may not have been his intent to dismiss Ms Gunning but, by his direction, her employment was terminated at the employer’s initiative.

[42] Neither Ms Rogers nor Mr Hillier took any action to disabuse Ms Gunning from the belief that she had been dismissed even though they had the opportunity to do so.

[43] Ms Gunning did not resign from her employment rather her employment came to an end by the direct actions of the employer. I therefore find that the Applicant was dismissed.

The Applicant was unfairly dismissed

[44] I have found that Ms Gunning was dismissed. The Respondent does not contend that it is a small business and there is no suggestion that the Applicant was made redundant.

[45] I must now determine if the dismissal was harsh, unjust or unreasonable. If so it is open to me to find the dismissal is unfair.

[46] Section 387 of the Act states:

387 Criteria for considering harshness etc.

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

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

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

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

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

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

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

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

(h) any other matters that the FWC considers relevant.

Consideration

[47] Much of this matter turns on the question as to whether or not the Applicant was, in fact, dismissed. I have found above that she was. The Respondent maintains she was not.

[48] Because of the basis on which this matter was argued by the Respondent, it put nothing to me to suggest that there was a valid reason for the dismissal of the Applicant, even as a secondary consideration.

[49] I do not consider that the Applicant was dismissed because of the issues she raised in respect of the Christmas party. On the Applicant’s own evidence she spoke to Ms Rogers about the Christmas part two days after she discovered she was not on the roster commencing 24 December 2012.

[50] If it was such that the Respondent dismissed the Applicant to allow new staff to be trained, this does not provide a valid reason for dismissal related to the Applicant’s capacity or conduct. There was no suggestion that new staff were being trained to replace the Applicant because of some concern with her performance.

[51] On the basis of the evidence before me the Respondent had no valid reason for dismissing the Applicant related to her capacity or conduct.

[52] The Applicant was not advised of any reason for her dismissal or given an opportunity to respond. Whilst, on Ms Rogers’ evidence, the Applicant was told, , that she was being taken off the roster to allow for the development of new staff, the Applicant was not given an opportunity to affect this decision or her employment, because of the scant information provided to her.

[53] Further, on the evidence of Ms Gunning, she was not aware, when told she was being taken off the roster, that she had been dismissed. She was not aware of this until a few days later when she was asked to return her keys. On the evidence of the Respondent it was not known when she would be placed back on the roster. Whilst the Applicant, in this respect, was advised of the reason she had been taken off the roster, it was not done in such a matter that she had an opportunity to respond.

[54] Whilst the Applicant was not denied the right to have a support person present in the discussion with the Respondent, she did not know, at the time she was advised she was being taken off the roster, that she had been dismissed. She had no further discussions with the Respondent such that this might be a relevant matter.

[55] The Respondent did not raise any performance issues with the Applicant.

[56] I accept that the Seymour Club is not a large business. It has about 25 or so staff. Its General Manager is only on site one day per week. I am prepared to accept that a lack of access to human resource specialists and the size of the establishment contributed to what occurred. It is not enough however to acknowledge that the running of the business is dependent on access to casual staff and then treat those casual staff in a manner such as that of Ms Gunning.

[57] In all of the circumstances I find the dismissal of Ms Gunning to be harsh, unjust and unreasonable.

[58] I therefore find that the Applicant was unfairly dismissed.

Remedy

[59] The Applicant does not seek reinstatement and in the circumstances I do not consider reinstatement appropriate. It is therefore necessary that I consider compensation.

[60] In determining appropriate compensation the Act states:

392 Remedy—compensation

Compensation

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

Criteria for deciding amounts

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

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

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

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

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

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

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

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

Misconduct reduces amount

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

Shock, distress etc. Disregarded

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

Compensation cap

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

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

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

Note: subsection 392(5) indexed to $61,650 from 1 July 2012

(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.

Consideration

[61] In determining the amount of compensation I have considered all of the matters set out in s.392 of the Act.

[62] Ms Gunning had worked for the Respondent for nine months and two weeks (not counting the period of parental leave in 2011) at the time of her dismissal.

[63] Ms Gunning’s evidence is that she would have worked for the Seymour Club for another four months 12 before proceeding on parental leave

[64] In October 2011 Ms Gunning went on parental leave. Her evidence is that this leave commenced not long before the birth of her child. She was on leave for five - six months before returning to the Seymour Club in April 2012.

[65] Ms Gunning did not have access to the government paid parental leave scheme with respect to her most recent pregnancy. Her period of parental leave in this instance would be without pay. For this reason I do not consider she would take as much time off with the birth of her child as she had done previously. On the basis of her past practice I am prepared to assume that she would have returned to the workforce 12 weeks after the birth of her child.

[66] I am satisfied that Ms Gunning would have continued to work at the Seymour club for a further 18 weeks had she not been dismissed from her employment and then proceeded on parental leave. I am satisfied that she would have returned to work at the Seymour Club following that leave and that she would have worked for the Respondent for at least six months from that date of return. There is no reason to think she would not return to work for the Respondent. She had taken parental leave in the past and returned. On the Respondent’s own evidence it needed to maintain a pool of available staff.

[67] The determination of lost remuneration involves three steps, firstly a determination of remuneration likely to be lost based on a determination of how long the Applicant would have remained in employment but for the termination of her employment; second, a reduction in that amount for monies earned since termination to the end of the anticipated period of employment; third, a discount for contingencies. 13

Lost remuneration

[68] The Applicant worked as a casual employee and, while her hours and pay varied week to week she worked reasonably regular hours. During the period of her employment the Applicant earned, on average, $639.36 per week. Had her employment not been terminated I estimate she would have continued to work for 44 weeks (18 weeks prior to the birth of her child and 26 weeks post her return to work). Her lost remuneration is therefore $28,131.84.

Reduction for monies earned

[69] The Applicant had not had any earnings since she was dismissed.

Reduction for contingencies

[70] I intend to reduce the amount by 10% for contingencies. This reflects the possibility that the Applicant may become ill and take carer’s leave. Because the Applicant is a casual employee such time away from work would be on a ‘without pay’ basis. I do not reduce for any more. There is no suggestion the Applicant was regularly unavailable for work. In any event, to an extent, contingencies are built into the remuneration lost as this reflects the variation in hours caused by changing demand on a week to week basis.

[71] I have excluded the period of parental leave from all of my considerations - I have not considered it as time that would have been worked and therefore do not need to make any adjustments for that period when the Applicant would not be available to work.

Mitigation

[72] Following the termination of her employment Ms Gunning sought work in Nagambie and at Kilmore but was not successful.

[73] I am satisfied that the Applicant has sought to mitigate her losses. I do not intend to discount lost remuneration for any perceived failure in this area.

Other matters

[74] There are no other matters I consider relevant

Effect on viability of the employer’s enterprise

[75] There is nothing before me to suggest that an order for compensation will affect the viability of the employer’s enterprise.

Compensation

[76] I therefore determine that the Applicant would have received $25,317.90 plus superannuation on the basis of my estimate of her likely period of employment had her employment not been terminated by the Respondent.

Reduction for misconduct

[77] The Applicant did not engage in any misconduct that contributed to her dismissal. There is no reduction for this purpose to be applied to the amount otherwise to be ordered.

Shock, humiliation and distress

[78] No amount has been awarded for shock, humiliation and distress.

Compensation cap

[79] The maximum amount that can be awarded is the amount the Applicant received during the 26 weeks immediately prior to dismissal. On the basis of the Applicant’s pay slips and calculations she received $16,692.80 plus $1502.34 in superannuation in the 26 weeks preceding her dismissal. 14 This therefore is the maximum amount that can be awarded. The amount I have calculated above is above that amount. I can award the Applicant no more than that allowed under the cap.

[80] I therefore determine that the Applicant is entitled to compensation of $18,195.14. An order requiring that the Respondent pay this amount to Ms Gunning within 28 days of the date of the order will be issued in conjunction with this decision.

COMMISSIONER

Hearing details:

Melbourne.

August 7.

2013.

 1   Transcript PN388-9.

 2   Exhibit A1, paragraph 2(i).

 3   Exhibit A1, paragraph 10.

 4   Exhibit A1, attachment E.

 5   Transcript PN580-2.

 6   Exhibit R1.

 7   Transcript PN683-5.

 8   Transcript PN871.

 9   Transcript PN931-2.

 10   See exhibit A2.

 11   Exhibit A1, attachment D.

 12   Transcript PN411.

 13   See Sprigg v Paul’s Licensed Festival Supermarkets AIRC Print R0235 (24 December 1998).

 14   Exhibit A2.

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