Ms Izabella Wielga v Villa and Hut Holdings Pty Ltd
[2010] FWA 2510
•26 MARCH 2010
[2010] FWA 2510 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Izabella Wielga
v
Villa and Hut Holdings Pty Ltd; Villa & Hut Melbourne Pty Ltd
(U2009/11215)
COMMISSIONER LEWIN | MELBOURNE, 26 MARCH 2010 |
Application for unfair dismissal remedy.
[1] This decision concerns an application for relief in relation to the alleged unfair termination of the employment of Ms Izabella Wielga by Villa Hut & Holdings Pty Ltd, lodged in Fair Work Australia on 12 August 2009. The date of termination of Ms Wielga’s employment stated in the application was 29 July 2009 which has not been challenged. The application was lodged with Fair Work Australia on 12 August 2009, which is within the time prescribed by s.394(2)(a) of the Fair Work Act 2009 (the Act).
[2] On 14 August 2009 the application was listed for conciliation via telephone conference at 11.15 am on 27 August 2009. On 26 August 2009 Shiff and Company filed in the Tribunal a Form 3—Notice of Representative Commencing to Act on behalf of Villa & Hut Holdings Pty Ltd and Lukakan Pty Ltd (formerly Villa & Hut Melbourne Pty Ltd).
[3] Under the subheading “Objections to the Application” on the Form 3, the Respondent stated:
“The Applicant was not employed by Villa & Hut Holdings Pty Ltd. The Applicant was employed at all times by Villa & Hut Melbourne Pty Ltd (now named Lukakan Pty Ltd).”
[4] The application did not settle during the conciliation on 27 August 2009. On 14 September 2009 the application was listed for Arbitration Conference and Hearing at 10.00 am on 11 December 2009, to address both the issue of the identity of the respondent and the merits of the application. That listing was effected by the Tribunal’s Registry prior to the allocation of the matter to me. Directions accompanied the notice of listing issued to the parties in relation to the proceedings. The Notice of Listing with Directions was sent to Mr Rob Coughlin of Villa & Hut Melbourne Pty Ltd via email.
[5] On 12 October 2009, on behalf of the Applicant Mr Gary Dirks filed an outline of the Applicant’s Submissions and a Witness Statement of Ms Izabella Wielga, dated 12 October 2009.
[6] On 16 November 2009 the Registry issued amended Directions in relation to the Arbitration Conference and Hearing listed for 11 December 2009. The amended Directions included both Villa & Hut Holdings Pty Ltd and Villa & Hut Melbourne Pty Ltd as Respondents. The amended Notice of Listing with Directions was issued to the Respondents’ legal representative, Ms Julia Adams of Shiff & Company by email.
[7] On 4 December 2009 a letter addressed to The Registrar was received from Villa & Hut Holdings Pty Ltd in the registry of Fair Work Australia. The letter was undated. The content of the letter of 4 December is set out below:
“IZABELLA WIELGA v VILLA & HUT MELBOURNE PTY LTD U. NO. 2009/11215
We refer to the above matter and note that Villa & Hut Holdings Pty Ltd has been requested to make submissions in this matter on the basis that the Applicant has claimed that Villa & Hut Holdings Pty Ltd was her employer at the time of the conclusion of her employment.
Villa and Hut Holdings Pty Ltd submits as follows:
1. The Applicant was not at any time employed or paid by Villa & Hut Holdings Pty Ltd. The reference to Villa & Hut Holdings Pty Ltd in the address section on the Applicant's letter of termination was an oversight by a staff member of Villa & Hut Melbourne Pty Ltd.
2. The Applicant was at all times employed by Villa & Hut Melbourne Pty Ltd (now Lukukan Pty Ltd).
3. The proper Respondent in this matter is Villa & Hut Melbourne Pty Ltd (now Lukukan Pty Ltd).
Yours faithfully,
VILLA & HUT HOLDINGS PTY LTD”
[8] On 9 December 2009 Mr Dirks filed further Submissions concerning the identity of the Respondent, and payroll records of Ms Wielga.
[9] At the Arbitration Conference and Hearing on 11 December 2009, Mr Gary Dirks appeared on behalf of Ms Wielga. There was no appearance by Villa & Hut Holdings Pty Ltd. Nor was there any appearance by Villa and Hut Melbourne Pty Ltd or Lukakam Pty Ltd.
[10] At the Hearing, Ms Wielga gave evidence in support of her application and Mr Dirks made Submissions in relation to the identity of the employer and the merits of the application.
[11] The transcript of proceedings was issued to the parties on 18 December 2009. Ms Julia Adams of Shiff & Company was issued a copy of the transcript via email.
[12] On 21 December 2009 my Associate wrote to Mr Dirks informing him of my consideration of a letter dated 9 December 2009 addressed to the Tribunal which was referred to during the Hearing of 11 December 2009. The letter contained an extract of an alleged communication between the Ms Wielga and a representative of the Respondent. At the Hearing Mr Dirks had asserted that the extract was essentially an “amplification of Ms Wielga’s evidence between paragraphs 6 – 8 of her Witness statement”. This letter was not exhibited at the Hearing. My Associate’s letter indicated that in light of the Objections filed by the Respondent, I needed to further satisfy myself of my jurisdiction to deal with the application against Villa & Hut Holding Pty Ltd and that the matter would be re-listed for Hearing. On 21 December 2009, the application was re-listed for Hearing on 13 January 2010. The Hearing was adjourned at the request of the Applicant’s representatives due to Mr Dirk’s absence overseas. The Hearing was re-listed for 11.00 am on 26 February 2010. Both notifications were sent to Mr Franz Medlener of the Respondent by post and to Ms Julia Adams of Shiff & Company by email on 21 December 2009 and 16 February 2009 respectively.
[13] On 19 February 2010, Mr Dirks filed a further written outline of Submissions and a Supplementary Witness Statement of Izabella Wielga. On 25 February 2010, Ms Julia Adams of Shiff & Co contacted my Associate by telephone. During the conversation Ms Adams confirmed she had received the notices of the listings, the transcript of proceedings of the Hearing of 11 December 2009 and the material filed by Mr Dirks on 19 February 2010. Ms Adams sought an adjournment of 4 weeks on behalf of the Respondent to provide the opportunity to prepare submissions in response to the material filed by Mr Dirks on 19 February 2010. Shortly after the telephone conversation with my Associate, Ms Adams filed a formal adjournment request in writing. I refused the application for adjournment on the basis that it was not appropriate in the circumstances of the case and that the application for adjournment lacked merit given the history of the matter; the well known and longstanding issues concerning the identity of the Respondent having been engrossed with for some time. The substance of the filing of 19 February 2010 had been asserted in the letter of 9 December 2009 referred to above which the record shows had been copied to the offices of the companies for whom Shiff & Company were solicitors on the record of the proceedings.
[14] Prior to the Hearing on 26 February 2010, Ms Adams of Shiff & Company telephoned my Associate to inform the Tribunal that she did not have instructions to appear at the Hearing listed for 11.00 am that day. Ms Adams indicated that she thought it unlikely that anyone would appear at the Hearing on behalf of the Respondent.
[15] At the Hearing on 26 February 2010 Mr Gary Dirks appeared for Ms Wielga. There was no appearance on behalf of the Respondent. Ms Wielga gave further evidence in support of her application.
[16] Having carefully inspected the history of the communication in relation to the proceedings on the application, I am satisfied that both Villa & Hut Holdings Pty Ltd and Villa & Hut Melbourne Pty Ltd were represented on the record by Shiff & Company Lawyers and Consultants, and that Shiff and Company had filed an employer’s response to the application and that the Respondents had been served with the notices of the hearing and directions in relation to the matter. There is no communication on the record from Shiff & Company that at any time they ceased to represent Villa & Hut Holdings Pty Ltd in respect of whom the application by Ms Wielga was made.
[17] The form 3, employer response filed on 26 August 2009 and is in the following terms:
“Reasons for dismissal
1. The Applicant, who was a casual employee, ceased to be offered further casual shifts by the employer as the employer was cutting back on expenses due to reduced retail sales and the general retail environment.
2. The employer ceased to offer casual shifts to the Applicant over the other casual employees due to issues in relation to the Applicant’s performance which had been raised with the Applicant in the weeks prior to her dismissal. These included being argumentative with her managers, disrespectful of senior management and the company’s policies and practices, and insubordination.
Response to Applicant’s contentions
1. The Applicant was a casual employee. While she had some regular shifts during her period of employment, she had no guarantee of ongoing work.
2. The employer did engage another staff member prior to the dismissal of the Applicant, to cover shifts on different days to those generally allocated to the Applicant, and completely separate to the Applicant’s dismissal.
3. The Applicant’s superannuation entitlement have been paid in their entirety. As the Applicant initially made no superannuation fund nomination, her superannuation was paid to the employer’s default fund, BT Super. Once the Applicant nominated her own fund, her superannuation was transferred to that fund.
4. The Applicant was a casual employee and not entitled to notice or payment in lieu of notice.
5. The employer is not aware of the complaints which may have been made by the Applicant to the Australian Taxation Office, and any such complaints had nothing to do with the Applicant no longer being offered shifts with the employer.
6. The Applicant was paid in accordance with the relevant Workplace Agreement, and no amounts are outstanding to the Applicant.
Objections to the Application
1. The Applicant was not employer by Villa & Hut Holdings Pty Ltd. The Applicant was employed at all times by Villa & Hut Melbourne Pty Ltd (now named Lukukan Pty Ltd).”
[18] At the Hearings on 11 December 2009 and 26 February 2010 Ms Wielga gave evidence concerning her employment and the termination of the employment. On the evidence before me 1 I am satisfied that Ms Wielga was an employee of Villa and Hut Holdings Pty Ltd.
Ms Wielga was a casual employee
[19] Ms Wielga’s evidence is that between 1 December 2008 and 29 July 2009 she was a casual employee employed on a regular and systematic basis. 2 In my view, on the evidence before me during and at the time of the termination of her employment, Ms Wielga had, but for the termination of her employment, a reasonable expectation of continuing employment on a regular and systematic basis.
Termination at the initiative of the employer
[20] I have carefully considered Ms Wielga’s witness statement and the “Employer’s Response to an application for Unfair Dismissal Remedy” 3. I am satisfied that the termination of Ms Wielga’s employment was at the initiative of Villa and Hut Holdings Pty Ltd. Moreover, it is also clear that the payments for work performed in July up until the time at which the employment came to an end were made by Villa & Hut Holdings Pty Ltd. On the evidence before me the employment was terminated by Villa & Hut Holdings Pty Ltd on 29 July 2009.
Genuine redundancy
[21] On Ms Wielga’s uncontested evidence, I find that the reasons for the termination of her employment more probably than not related to matters other than or in addition to those referred to generally in the employer’s response and included actions taken by Ms Wielga in relation to concerns she expressed about aspects of her employment and what she considered were her workplace rights.
[22] While not explicitly stated there is a possible inference available from the response of Villa & Hut Holdings that the reason for the Termination of Ms Wielga’s employment was a case of genuine redundancy. I have in this respect given consideration to the evidence of the circumstances surrounding the termination of Ms Wielga’s employment given by her, which I accept. On what is before me I cannot be satisfied on a proper basis of evidence that redundancy was genuinely the reason for the termination of Ms Wielga’s employment.
Small business code
[23] There is nothing before me to suggest that Villa & Hut Holdings Pty Lts is a small business employer within the meaning of the Act 4.
A protected person
[24] In accordance with the findings set out above I conclude that Ms Wielga was a person protected from unfair dismissal. 5
The evidence
[25] Ms Wielga’s evidence is substantially the affirmation on oath of the content of the witness statements filed on her behalf, Exhibits A1 and A3. There being no appearance of Villa & Hut Holdings Pty Ltd at the proceedings to deal with the application on 11 December 2009 and 26 February 2010, that evidence was not cross examined, is substantially unchallenged, and with the exception of the content of the employer’s response 6, uncontradicted. There has been ample opportunity since the filing of the application and the conduct of the Hearings for Villa & Hut Holdings Pty Ltd to appear, to call evidence, to cross examine Ms Wielga, and to file submissions in relation to the matters of fact relied upon by Ms Wielga. In all the circumstances I accept Ms Wielga’s evidence in its entirety.
Statutory considerations
[26] When considering an application for relief in relation to an alleged unfair dismissal the Tribunal is to take into account a number of criteria which are set out in s.387 of the Act and are set out below:
“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.”
Valid reason
[27] The reasons for dismissal of Ms Wielga given by the respondent are set out previously in the employers response filed by Shiff & Company. As there was no appearance on behalf of the respondent, no evidence was given in relation to the reasons there stated.
[28] In the employer response no reason for the termination of Ms Wielga’s employment other than “cutting back expenses” and the cessation of offering shifts to Ms Wielga “due to issues in relation to the Applicant’s performance which had been raised with the Applicant in the weeks prior to her dismissal”, including being argumentative with her managers, disrespectful of senior management and the company’s policies and practices and insubordinate, is offered. These matters go to Ms Weilga’s conduct and work performance. They do not, in my view, relate to a case of genuine redundancy. Moreover, none of the general descriptions of the conduct and performance alleged as reasons for the termination of Ms Wielga’s employment have been particularised or substantiated by evidence. On the evidence before me, I cannot be satisfied that there was a valid reason for the Termination of Ms Wielga’s employment.
[29] Where the Tribunal finds that there is no valid reason for the termination of an employee’s employment it is not necessary to make a finding in relation to the matters of notification and opportunity to respond to the reasons for the termination as set out in ss.387(b) and (c) of the Act. I also consider that similar considerations obviate the necessity to make a finding in relation to the provisions of s387(d) of the Act.
[30] If, as the employer’s response indicates, the reason for the termination of Ms Wielga’s employment was related to unsatisfactory performance, there is no evidence before me of a warning which I consider could be legitimately attributed to the alleged unsatisfactory performance.
[31] I am unable, on what is before me, to make an informed finding that the size of the employer’s enterprise had an impact on the procedures followed in effecting the termination of Ms Wielga’s employment and the degree, if any, to which it did. I therefore find that there was no such effect.
[32] I am left in the same situation in relation to the degree to which any absence of dedicated human resources management specialists or expertise impacted on the procedures applied by Villa & Hut Holdings Pty Ltd in relation to the termination of Ms Wielga’s employment, and likewise, find that there was none.
[33] There are no other matters I consider relevant.
Harsh, unjust or unreasonable?
[34] A termination of an employee’s employment where there is no valid reason will almost invariably be harsh, unjust or unreasonable. No mitigation is offered other than as stated in the employers response with I have already dealt with. I consider it is appropriate to find that the termination of Ms Wielga’s employment was harsh, unjust or unreasonable accordingly and I do so.
Remedy
[35] The provisions governing the Tribunal’s consideration of the provision of a remedy in relation to an unfair dismissal and set out below:
“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.
[36] Ms Wielga does not seek reinstatement. She has found other employment with which she is satisfied. There is nothing before me to suggest that reinstatement is an appropriate remedy. I find in the circumstances of this case that reinstatement is inappropriate. I consider compensation to be an appropriate remedy for the reasons that follow. Ms Wielga seeks an order that she be paid an amount equal to the remuneration she would have received between the date her employment was terminated and the date she commenced new employment, which is a period of seven weeks.
[37] The relevant statutory provisions governing the award of a remedy of compensation are set out below:
“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.”
[38] There is nothing before me to suggest that an order of compensation, particularly in the amount sought would, would have any effect on the viability of the employer’s enterprise.
[39] While Ms Wielga’s service is not long it is sufficient, in my view, in the circumstances of this case, to weigh in favour of the remedy sought.
[40] Ms Wielga has mitigated the loss of her employment with successful job search activities. Ms Wielga secured new employment 7 weeks after the termination of her employment with Villa & Hut Holdings Pty Ltd. There was no income earned by Ms Wielga in that period. Ms Wielga suffers no ongoing loss as a result of her successful job search as her remuneration since commencement of the new employment is not less than that which she received in her employment with Villa & Hut Holdings Pty Ltd. No notice or payment in lieu of notice was given or made to Ms Wielga in relation to the termination of her employment.
[41] On what is before me, no misconduct on Ms Wielga’s part has been established and therefore there is no ground to reduce any considered remedy on such account.
[42] There is nothing before me otherwise relevant to any of the statutory considerations concerning the appropriateness of such a remedy which weighs against the remedy sought.
[43] The amounts Ms Wielga will earn between the making of an order for compensation and the actual compensation is more likely than not to be an amount equal to or greater than the amount she would have earned had she been employed by Villa & Hut Holdings Pty Ltd in that period and therefore, in my view, does not affect the appropriate amount of compensation.
[44] For all of the above reasons I have decided that an amount equal to seven weeks of pay as compensation should be awarded. That amount is $4,848.48 7.
[45] An order will issue accordingly.
COMMISSIONER
Appearances:
Mr G Dirks for the Applicant
Hearing details:
2009
11 December
Melbourne
2010
26 February
Melbourne
1 Exhibits A1 to the Transcript of Proceedings of 11 December 2009, and Exhibit A3 to the Transcript of Proceedings on 26 February 2010.
2 Exhibit A1 of the transcript of first proceedings.
3 Form F3 – Employer’s Response to Application for an Unfair Dismissal Remedy.
4 Section 23 of the Fair Work Act 2009.
5 Section 394 of the Fair Work Act 2009.
6 Letter of 4 December 2009 addressed to the Registrar.
7 Exhibit A1 to the transcript of proceedings.
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