Ms Jill Lambert v Jetscape Travel Pty Ltd T/A Travelscene/ByoJet

[2013] FWC 2263

[2013] FWC 2263

FAIR WORK COMMISSION

DECISION

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

Ms Jill Lambert
v
Jetscape Travel Pty Ltd T/A Travelscene/ByoJet
(U2012/14467)

COMMISSIONER SPENCER BRISBANE, 21 JUNE 2013

s.394 - Application for an unfair dismissal remedy - harsh, unjust or unreasonable.

Introduction

[1] This decision relates to an application made under s.394 of the Fair Work Act 2009 (the Act) by Ms Jill Thelma Lambert (the Applicant) on 18 October 2012 in relation to the termination of her employment on 16 October 2012 by Jetscape Travel Pty Ltd T/A Travelscene/ByoJet (the Respondent). The Respondent alleged the Applicant resigned from her employment on 16 October 2012. The Applicant commenced her position with the Respondent on 23 February 2011 as a travel consultant.

[2] The Applicant stated in evidence that she was 61 years of age, had been born and educated in New Zealand, and had worked with Air New Zealand between 1969 and 1991 until she took a voluntary redundancy. Further to this, the Applicant was employed in various roles with Air New Zealand.

[3] The central issue is whether the Applicant had accepted a role by the Employer to take up a position in New Zealand or whether the conditions of employment ultimately offered were not commensurate with her expectations; and that she refused the offer and whether she therefore had an entitlement to remain in her employment.

[4] The Respondent argued that the Applicant had a history of reneging on alternative positions, often after lengthy consideration of required terms. Further, the Respondent argued that the Applicant was aware that it had been put to her that if she ultimately refused the position after her conditions were met she would not be able to remain in her employment with the Respondent.

[5] The Applicant stated that this position was procedurally unfair and she had a right to default to her then current employment if the new position under consideration between the parties did not then turn out to be acceptable to the parties.

[6] While not all of the submissions and materials filed in the matter have been referred to, all of such have been considered.

Legislative scheme

[7] Relevant provisions of the Fair Work Act 2009 (the Act), as they stood at the time the Applicant was dismissed, follow.

[8] Section 385 outlines the elements of what is an unfair dismissal:

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

(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.

[9] Section 387 contains the criteria for considering harshness etc:

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.

[10] Section 386 provides the meaning of dismissed:

386 Meaning of dismissed

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

...

Background

[11] The Applicant stated that she came to Brisbane in August 2007 and that she undertook various temporary employment assignments, in aggregate, approximately one year out of the four between 2007 and 2011. The further employment was then with the Respondent, which finished on 16 October 2012.

[12] Prior to 2007, the Applicant had approximately 30 years experience in the travel industry in New Zealand.

[13] The Applicant stated that despite searching for employment since the termination of her employment with the Respondent she has not been successful in gaining employment.

Evidence and submissions

[14] The Applicant agreed that during her time with the Respondent she had no work related complaints and considered she was regarded as good at her job. Her understanding was that her employment was terminated as she would not take up a new position in New Zealand, as her perception was that she would be on a casual contract.

[15] During the hearing the Applicant was shown an email dated 26 September 2012 1 from the Applicant to Megan Shepherd, the Applicant’s then immediate manager. It was suggested that this was an acceptance of the New Zealand offer:

Hi Megan,

Further to our discussion re offer of position in Christchurch.

All good I would like to accept the offer.

I’ve spoken to our real-estate agent (Elders) who are aware of our situation and

Are pushing the sale. I would prefer to relocate once this sells, but am happy to

Work in with your time frame.

Just one question. Are you happy to put me onto a fulltime contract, the reason for this is we will be wanting a loan (mortgage from the bank) and a fulltime contract Will help.

I am happy with the original contract Lenny offered, but realise this will be a different title.

Thanks for any assistance.

[16] The Applicant’s view differs in relation to the effect of this correspondence and says it was not an acceptance of the New Zealand position. The Respondent says the Applicant was content to accept the position if she received $25AUD per hour, pay parity in New Zealand currency, and a full-time position.

[17] The Applicant says that in a telephone call to Ms Shepherd on 9 October 2012 that the parties confirmed these terms, however she requested them in writing.

[18] The Applicant says that when she received the offer letter on 11 October 2012, that she was not happy with the terms provided.

[19] The covering letter and signature page for the employment offer stated as follows:

I am pleased to offer you the position of Managing Travel Consultant at Shop 6 The Colombo, 363 Colombo Street, Sydenham starting on Monday 29th October 2012. I propose that the terms of employment will be those in the attached draft individual employment agreement.

Please note that acceptance of the offer is final. Your role in Australia will not be available should you change your mind.

If you disagree with, do not understand or wish to clarify anything in this offer, please contact me to discuss.

If you are happy with the proposed terms and wish to accept this offer of employment, please sign the duplicate copy of this letter and return it to me by Monday 15th October 2012. If I have not heard from you by that date, this offer will be automatically withdrawn.

(emphasis added)

[20] As at 12 October 2012 the Applicant stated she had not made many arrangements to move to New Zealand. The home had been put on the market some months prior to 12 October 2012.

[21] On 15 October 2012 Mr Lenny Padowitz, proprietor and manager of ByoJet, asked the Applicant if she would be moving to New Zealand. The Applicant stated she had not accepted the contract.

[22] The Applicant later that day stated to Ms Shepherd that she would not go unless she was paid $25 per hour and was on a full-time contract.

[23] The Respondent submits that the email of 26 September 2012 confirms the Applicant’s acceptance of the New Zealand based job offer and that the Applicant had commenced plans to move to New Zealand.

[24] The Applicant says it was a response to the discussions regarding the position and she states she had not accepted the position at this stage. She was expressing interest in responding to a casual discussion with Ms Shepherd.

[25] The Applicant stated that the contract received on 11 October 2012 overtook the prior discussions. She stated she had not accepted the position in her email as she was seeking a full-time contract, and the contract she received did not reflect such, as it was a casual contract with hours as required, not a fixed contract as she had requested for the move.

[26] The Respondent states that they had confirmed the $25 per hour and full-time contract, but the Applicant required this in writing.

[27] The Applicant agreed she had previously had discussions in May 2012 regarding a suggestion of moving to a New Zealand position that both parties had stated had not eventuated for differing reasons. As background to this, the following material was presented. The Applicant in an email to Mr Padowitz dated 6 May 2012 stated:

Further to your question on Friday, if anyone knew of a small Travel Agency in New Zealand, as BYOjet is looking at opening up an office there.

Are you wanting to set up a small Travel Office similar to Bryant’s Road, or are you looking at getting A Travel Agency already established to

Do your business for you ?

Depending on where you want to set up business, If you are looking at Christchurch I am able to put you in touch with a friend, Bruce Lindsay

The Manager for Phoenix Harcourt’s in Riccarton Christchurch. He has a good reputation and would look after you.

With my knowledge of New Zealand, Auckland is a good option, but very expensive. Queenstown would be another good option for the likes

Of a walk-in cafe type operation. (Lots of walk-ins here)

I would like to express my interest in helping you set this up with the possibility of my relocating back to New Zealand to help you run

The business. As you are aware I enjoy working for the company and would like to think I am able to grow with it.

Let me know your thoughts.

[28] The Applicant stated it was an expression of interest to relocate to New Zealand. After this letter, on the following Monday, Mr Padowitz explained the suggested New Zealand operation and that he was going over there. The Applicant stated that Ms Jenny Lennon, the mother of one of the Applicant’s then colleagues, stated that her niece had been interviewed and had been offered the position with a structure of $400 a week plus commission. The Applicant then stated that with this information she was not interested in the role.

[29] However, Mr Padowitz, later in the week stated that there would be two agencies opening in New Zealand — one in Christchurch and one in Auckland — and asked where she would prefer to be based. The Applicant indicated Auckland, but Mr Padowitz indicated that Christchurch would suit her better. She was advised the job would pay NZ$400 per week plus commission. The resulting contract was for NZ$25 per hour and full-time, but the Applicant did not sign that contract as she had asked for pay parity with her then rate of AUD$25 per hour.

[30] Subsequent to receipt of the contract, the Applicant had received information about the cost of accommodation in Christchurch, namely that it was scarce. Therefore, the Applicant did not accept the offer for employment in New Zealand in May 2012 (the first occasion).

[31] The Respondent stated the second occasion (whereby she considered the Respondent’s offer of employment with them in New Zealand) was the September 2012 offer and that the Respondent considered the Applicant had on the second occasion accepted the offer to relocate her employment with the Respondent to New Zealand.

[32] In the offer of employment to the Applicant on 11 October 2012, the Respondent stated: “Please note that acceptance of the offer is final. Your role in Australia will not be available should you change your mind.” The Applicant stated this “rang warning bells” for her that she was “being set up for failure” and was not trusting of Ms Shepherd. However, the Respondent stated this statement was in the contract as this was the “second occasion” that advanced, New Zealand based job discussions had occurred with the Applicant.

[33] The Applicant confirmed that she had a good working relationship with Mr Padowitz, she stated she had more to do with him than Manne Padowitz, and stated she could discuss issues with Mr Padowitz.

[34] With respect to the email from the Applicant to Mr Padowitz on 6 May 2012, the Applicant confirmed the Respondent’s business was a small, but growing family owned business. The Applicant stated that on her commencement in February 2011, that she was the third person to be employed, but at the time of her dismissal there were by then over 16 employees. She stated she had handled the bulk of the phone sales.

[35] The Applicant agreed that her role handled a number of customer enquiries. Her business card stated that she was a travel consultant, but in the new premises the business was operated more like a call centre, than a traditional walk-in travel agency.

[36] In terms of her employment, the Applicant said that from the 16 staff, if the management team of Mr Padowitz, Manne Padowitz and the accountant were excluded, the Respondent’s staff would total about 12 staff remaining, and that the full compliment were not always there. She stated the hours of business were between 7am and 11pm weekdays, and 9am to 5pm weekends. A number of staff chose not to do weekend and evening shifts. She said her hours were Wednesday, Thursday and Friday between 3pm and 11pm, and 9am to 5pm on Saturdays and Sundays. She added that towards the end of her employment, that there were only three to four employees there.

[37] The Applicant submitted that there were no other reasons related to her employment, that the Respondent could rely on in connection with the termination. To the Applicant’s knowledge, the rostering of staff commenced when Ms Shepherd started in July 2012. The roster was for weekly hours, it was available electronically and on a notice board. The Applicant worked a standard set of hours in a week as previously outlined. The Applicant requested these rostered hours and Mr Padowitz had approved them, however, she stated that these late night hours and weekend hours were also to the benefit of the company.

[38] The Applicant agreed the staff of the Respondent received additional incentives from a number of suppliers. She said those were “famils” — familiarisation trips to allow the employees to become familiar with a product. The offers were free or, for example, a trip to Alaska for which she paid half the cost.

[39] The Applicant agreed she was offered a trip by Air New Zealand and AAT Kings. She had worked with both companies before. She accepted the offer, but later reneged and stated that there were only two persons in the office at the relevant time and could not go. The Applicant says she originally agreed to the Alaskan trip and had paid her share, however, later due to the cost and the need to fly she refused. The Respondent says her refusal to undertake the Alaskan trip was provided approximately a week before departure, and formed part of the history of the Applicant’s conduct in reneging on matters at a late stage that she had previously accepted. The Respondent argued this is why the offer of employment for the New Zealand trip had cautioned that her current Australian role would not be available after acceptance of the New Zealand role.

[40] The Respondent stated that these trips were often free, but there was an option to contribute or “gross” the trip up. The Respondent put it to the Applicant that these trips were “junkets” and an additional benefit to the job. In contrast to her earlier evidence, the Applicant confirmed that she was asked to pay $500 for the familiarisation trip to Alaska. The Applicant agreed that she had worked for a long time in the travel industry, but had a fear of flying. The Applicant stated in response to questioning that this fear of flying was not a reason for not accepting the New Zealand job.

[41] The Applicant confirmed that she had attended Longreach, Queensland, with Queensland Rail on a familiarisation trip on the inaugural first class service for a three day trip from 7-10 October. She also took a P&O cruise from 30 June to 5 July 2012.

[42] The Respondent did not rely on any other issues between the parties as difficulties in the employment relationship. The Respondent relied on the Applicant’s position in reneging on a series of matters at a very late stage in the process. The Respondent put to the Applicant that on the first and second occasions the Respondent had made arrangements for her to go to New Zealand. The Applicant refuted this and stated they had not as she had not accepted the contract.

[43] In relation to the terms of the contract that eventuated, on the New Zealand position, the Applicant agreed that the resulting permanent contract, clarification of her title and role were motivations to accept and finalise the contract. The Applicant stated that however, further representations by the Respondent eroded her confidence in the proposed position as for example Mr Manne Padowitz later stated she would be going over as a “new shop manager”. She was further advised by Ms Shepherd that she would be a co-manager and this was the title given. She stated that Ms Shepherd confirmed that, at that stage she had not drawn up the contract. She stated that as the discussions about the position evolved she lost confidence in the Respondent’s offer of employment in New Zealand. In addition, Mr Lenny Padowitz was overseas, and therefore the Applicant could not discuss matters with him.

[44] The Respondent stated that the Applicant was aware that she was to be the shop manager with Ms Jenny Wong. However, the Applicant stated she had not received a position description to confirm such and it was put to her that Ms Wong was to be the senior employee. The Applicant stated her perception was that there was conflict with the titles and roles that had been communicated to her. The Respondent maintained the discussions regarding the New Zealand position were clear.

[45] The Applicant stated she did not want to go to New Zealand, to find the “goal posts” had moved. She stated there was no position description or written contract.

[46] In relation to her final days of employment, as at 15 and 16 October 2012, the Applicant was on two days of rostered days off. The Applicant had worked on 15 October 2012 from 9am to 11.30am to make up the hours for the days off. The Applicant was rostered until 18 October 2012, however she stated that she was dismissed on 16 October 2012. She stated she was aware the other staff had been informed about her termination and she therefore declined Ms Shepherd’s offer to work the remaining day, but she was paid for the two days. However, she stated that she was underpaid and amount of $8,341.88 and that this was raised with the Fair Work Ombudsman and that they confirmed there had also been overpayments and that this amount does not take that into account.

[47] The Applicant stated that this figure of underpayment represented underpayments for hours spent in training and some periods of such weeks on the familiarisation trips as described. Whilst the Applicant was seeking training payment for familiarisation trips, the evidence was that she had attended these trips with her partner, on a highly discounted basis, and there was very little by way of a training component.

[48] The Applicant had submitted that she was interested in the business and confirmed that the Respondent was seeking experienced staff for the business. She had assisted them in finding Mr Mauricio Avila, with whom she had previously worked. Ms Lennon had also found employees through her daughter and her daughter’s friends. The Respondent stated this demonstrated they were not seeking to terminate employees.

[49] The Applicant further argued that final reasons for not accepting the contract related to the situation that in August 2012 she had been offered a full-time contract, but did not accept such as the hourly rate was $20 per hour, which amounted to a $5 per hour reduction from what she was at the time earning.

[50] She agreed the full-time contract provided for sick leave and annual leave. The Applicant confirmed she had received $25 per hour up until her termination. The Applicant stated that the first permanent employment offer in August 2012 was a reduction in pay for her. She stated in an email to Ms Shepherd on 31 August 2012 as follows:

Thank you for the offer of a Full Time contract.

Because of my Financial Circumstances I am committed to the current hourly rate of of $25AUD per hour. Taking my circumstances into consideration I am unable to accept the Full-time offer you have made me.

I would reconsider a Full-time contract if you are happy to re-negotiate with me.

I await your reply.

[51] The Applicant confirmed what was important was on each occasion in rejecting the job offer was receiving an hourly rate that equated to approximately AUD$1,000 a week.

[52] The events leading to the finalisation of the employment related to a text to the Applicant from Ms Shepherd regarding her starting date in New Zealand. On the final day of employment there were three telephone calls. In the first telephone conversation between the Applicant and Ms Shepherd there was a discussion regarding conflicting information. In the second telephone conversation there was a discussion about the Applicant having refused the contract for the New Zealand position as of 3pm that day, and hence her services would be relinquished and that there was no other position available for her. The final and third discussion occurred at about 4pm to request the work keys back from the Applicant and regarding the Applicant’s work for a further two days.

[53] The Respondent submits the second and third discussions were the only discussions held that day and that the announcement Ms Shepherd made to staff regarding the Applicant having left her employment was after a request for the keys and the finalisation of the contract of employment had occurred.

[54] The Applicant stated that Ms Shepherd said that because she had refused to go to New Zealand, that there was no longer a position available for her in Australia.

[55] The Applicant stated there was never any discussion regarding whether she had resigned. The Applicant stated she would be seeking legal advice and she said that Ms Shepherd stated the Applicant could not as she was a casual.

[56] The Applicant indicated Ms Shepherd had reasons for her to attend New Zealand; to terminate a staff manager; and be a mentor to the New Zealand manager - Ms Wong. The reasons were not acceptable to the Applicant.

[57] Mr Avila also provided evidence. He was a travel agent who had previously worked with the Applicant for about four months and had known the Applicant for about two years as a work colleague. He was employed by the Respondent as a ticketing and customer call consultant.

[58] Mr Avila stated that on the day of the Applicant’s termination there were approximately 8 other staff in the office at about 2.30pm when Ms Shepherd announced: “that since Jill refused to take up the NZ job offered to her, she was no longer required and her position in Australia had been terminated effective immediately. She is no longer coming back here.” Mr Avila stated that Ms Shepherd then walked back into her office and closed the door.

[59] Mr Avila resigned his position with the Respondent on Friday, 28 October 2012 by telephone. He says he phoned Ms Shepherd on her mobile and resigned, she told him to return his office keys. On the following Monday he returned the keys and had a discussions with Mr Padowitz, where he was told the company needed experienced staff like him and asked if he really wanted to resign. Mr Padowitz then said to Mr Avila: “Just remember, my Father and I have this view, that once a staff leaves, we do not employ them back again even if they have been one of the best. If you decide to go, then we might not take you back later on”. Mr Avila stated that was a risk he was willing to take, he returned his keys and left.

[60] Mr Avila agreed that everyone thought the Applicant was going to New Zealand so the announcement that she was not was a surprise to him. He thought it was interesting that the Applicant was being asked to sort out the New Zealand office, but that the Applicant was experienced and able to do this. As far as he was aware, she was being employed as the manager of the New Zealand office. He stated that each title in the travel industry had a different connotation.

[61] Mr Avila indicated that Ms Shepherd had previously been to the New Zealand offices in an attempt to “sort out” the offices. On her return to Australia, there had been no changes to the New Zealand staff that she had intended to “get rid of”. The Applicant had told Mr Avila that she would be near family in New Zealand and as he understood, she would be managing the office and was pleased to go.

[62] On 16 October 2012 Mr Avila was not aware the Applicant had rejected the offer. Mr Avila said the Applicant had been provided with a draft employment agreement on 11 October 2012 and that the Applicant had mentioned she had been provided with a letter of offer for the management of the New Zealand office.

[63] Mr Manne Padowitz, the father of Lenny Padowitz, was shown the letter of offer dated 11 October 2012 at the hearing. Mr Padowitz Snr indicated he did not see a signed copy of the letter of offer returned. Further, he was aware the Applicant had rejected the offer, but was not aware of the date, but was aware of the later acceptance.

[64] Mr Padowitz Snr stated that the Applicant was seeking a full-time position and $25 per hour and that this was stopping her from accepting the offer. He stated that the Applicant said these things were holding her back. He said to the Applicant he would instruct Ms Shepherd to make the offer $25 per hour and full-time and stated the Applicant was very happy with this.

[65] Mr Padowitz stated after the Applicant later rejected the offer that Ms Shepherd stated to him what the Respondent was going to do as the Applicant had changed her mind and they had already employed one or two people and there was no longer a job for the Applicant. The evidence of Mr Padowitz Snr was not exacting in these matters.

[66] Mr Padowitz Snr stated if he wanted to get rid of the Applicant he would not have offered her the position on two separate occasions.

[67] Mr Padowitz Snr stated he had two years’ experience in the travel industry. Prior to this he had a number of years as a CEO of a mobile phone company employing 700 people.

[68] Ms Shepherd stated that the Applicant resigned on 16 October 2012, after a conversion rejecting the role that the Applicant had previously accepted.

[69] Ms Shepherd, in her affidavit, stated:

3. I did have an unpleasant telephone discussion with her [the Applicant] on or about 16 October 2012 because she had for a second time failed to take up a position, which she applied in New Zealand. On both occasions, Jill had accepted the New Zealand position and resigned her Australian position and there was considerable inconvenience and expense for the Respondent when she changed her mind and refused to go.

4. Jill was not terminated, she had already resigned. Unfortunately, after she let the Respondent down on the first occasion; and having been warned that this might happen, her Australian position was filled and she could not be re-employed in that capacity.

5. As the 2 new people started on the week (25 October, 2012), I offered her to work out the week. She rejected that offer, but it surprises me that she claims to have been wrongfully terminated because she made the choice to discontinue effective immediately. [Ms Shepherd stated these people were hired as the Applicant had accepted the New Zealand position].

6. I was not happy with what had happened. It was inconvenient and more work for me; and Jill did not seem to care at all. When I offered her the few extra days, she laughed at and was rude to me; and would not enter into any sensible discourse about the matter. Rather than being terminated, she told me that she refused to work for the Respondent any longer.

[70] Ms Shepherd stated under cross-examination that she and the Applicant had been in many discussions with each other for six months regarding the sole ‘Managing Travel Consultant’ (as the Applicant thought this was the title). The conversations were that the acceptance of the role would terminate her current role. Ms Shepherd stated that the Applicant no longer wished to take up the role in Christchurch and therefore she resigned from being a travel consultant in Brisbane.

[71] Ms Shepherd agreed that she gave the Applicant some time to think about the attached draft individual employment agreement — she believed it was the weekend. Ms Shepherd said the period was given to consider the offer that had been discussed for some time. The covering letter was that if the agreement was not received by 15 October 2012, the offer would be “automatically withdrawn”. Under cross-examination, Ms Shepherd stated that if an agreement could not be reached the Respondent would have had to accommodate the Applicant in the Logan office.

Consideration

[72] The first matter for consideration is whether the Applicant resigned her employment or was terminated.

Was the Applicant dismissed?

[73] It is not in contest between the parties that the termination, whether it be resignation or dismissal, took effect on 16 October 2012.

[74] The relevant final conversation was between the Applicant and Ms Shepherd only.

[75] The final circumstances were related to previous negotiations between the parties.

[76] In relation to the second offer of the New Zealand position the Applicant submitted that the offer arose during a telephone conversation with Ms Shepherd on 9 October 2012. 2 That offer, or an offer, was made to the Applicant by letter dated 11 October 2012 which included what the letter states was a “draft individual employment agreement”.3

[77] The Applicant disagreed with a number of the conditions of the position, primarily in relation to the employment type, the title of the position and it seems the rate of pay attached to the position.

[78] The Applicant submitted that she rejected the offer of 11 October 2012 by email dated 13 October 2012. 4 Following rejection of the offer further discussions occurred between Mr Manne Padowitz and Ms Shepherd regarding the further negotiation of the terms of the New Zealand offer. The Applicant pressed her desire for the position to be a full-time position, be called the “Co-Manager” and be for a rate of $25.00 per hour. The Applicant’s evidence is that this was “offered”.5 According to the Applicant she said to Ms Shepherd that she was “happy” with this offer but wished to see it in writing. Ms Shepherd said according to the Applicant that she would draw up the amended contract.

[79] The evidence of the Applicant is that there was inconsistency in the exact terms of the offer that was being put to her by Mr Manne Padowitz and Ms Shepherd. In any event the Applicant’s evidence was that in a telephone conversation with Ms Shepherd on 16 October 2012 she would “withdraw [her] interest because of the confusion and uncertainty surrounding the actual position”.

[80] As a result of this withdrawal of interest the Applicant’s evidence is that Ms Shepherd telephone her and advised that the Respondent no longer required her services. The Applicant’s evidence is that Ms Shepherd did not give the Applicant a chance to respond other than to suggest that she would “take the matter further”.

[81] The evidence of Mr Manne Padowitz is that the Applicant applied for the New Zealand position and had accepted the position to start from 25 October 2012. It is difficult to reconcile this evidence in the context of the documentary evidence. An offer was formally put to the Applicant in writing on 11 October 2012. This offer was open for acceptance until 15 October 2012 at which time, if it was not accepted, it would be withdrawn. This provided the Applicant with less than two weeks to arrange for the relocation to New Zealand. The rejection of the Applicant by email dated 13 October 2012 simply rejects the “agreement” because of its “implications”. The Applicant does not specify in her correspondence what matters concern her regarding the offer.

[82] Ms Shepherd’s affidavit is not detailed in this regard. Ms Shepherd’s affidavit does not indicate where specifically the Applicant accepted the position.

[83] Annexed to Ms Shepherd’s affidavit is an email from the Applicant to Ms Shepherd where the Applicant purportedly accepted the offer of New Zealand employment. 6 While the terms of the Applicant’s email would, on a first reading, seem to suggest that the Applicant had accepted the offer entirely, viewed in the context of the evidence this cannot have been the case. On the Respondent’s own evidence the Respondent put an offer to the Applicant by cover letter dated 11 October 2012 and did so with instructions as to the acceptance of the offer. This shows that the Respondent did not consider the offer had finally been settled and accepted between the parties. In any event as the evidence of the Applicant shows the terms of the contract had changed somewhat from what was discussed between the parties up until that point.

[84] On the evidence the Respondent was frustrated with the Applicant in so far as the Applicant insisted on clarity regarding the position. The Applicant’s evidence was that she received inconsistent messages from the Respondent’s officers and this, quite understandably, caused the Applicant some concern. I find that the Applicant did not accept the second New Zealand offer. The evidence of Ms Shepherd under cross-examination in this regard reflected the Respondent’s frustration with the Applicant:

“...So in that letter of offer you say, “If I’ve not heard from you by the 15th, the offer will be automatically withdrawn. So what did you mean by that?---that we didn’t have the capacity to wait weeks and weeks to hear back whether or not Jill intended to take the position in Christchurch....” 7

[85] Ms Shepherd conceded that, reasonably, if the offer was rejected the Applicant’s employment in Australia would still have been open to her: 8

“What happens to Ms Lambert if she doesn't respond to this offer by the 15th?---It never occurred to me that she wouldn't accept that role. Or sorry, would change her mind about that role, was more accurate. But she did.

Well, it's not for me to make early comment at this stage to you about that. But what were you intending to happen? Nothing? You hadn't thought that through, had you?---No, we would have to accommodate her in the Logan office.”

[86] And in response to questioning from the Applicant’s counsel, Ms Shepherd further conceded that Mr Padowitz had not been shown the letter of offer of 11 October 2012: 9

“Right. So Mr Padowitz made the decision. Did you tell Mr Padowitz that your intention by providing - because he says to me that you hadn't shown him the letter of offer. Had you shown him the letter of offer?---Which Mr Padowitz are we referring to?

Mr Padowitz senior?---I don't believe - no, I don't think I showed him that letter

But he's the one that you say made the final decision, is he? It wasn't you. It was him?---Yes.

When you had this discussion with Mr Padowitz, you didn't tell him that your intention was in the event that Jill didn't accept the position, was to find her a position in Logan. You didn't communicate that to him, did you?---But after - - -

Yes or no?---Sorry, please repeat that.

All right. You had a meeting with Mr Padowitz just before you terminated - we had the telephone call with Ms Lambert on 16 October, and you indicated to him that Jill wasn't going to New Zealand. Did you indicate to Mr Padowitz that it was your intention, with your letter of offer, in the event that she didn't accept the role, to employ her in the Logan office. Did you tell him that?---No.

But your evidence is that that was your intention. That was the default position. You asked Mr Padowitz then to endorse your decision and to verbally communicate to Jill that there was no longer a role for her. That's correct, isn't it? You wanted someone to endorse the position you were taking that Jill was no longer working in Brisbane. Is that correct?---I had a discussion with Mr Padowitz about what to do in - because she had accepted the role and we had made all the organisation for - - -

But you hadn't told Mr Padowitz that your intention was to give her this great position?---This is a different time. We discussed the role and it had been accepted after - - -

You were asking Mr Padowitz to sign off on the termination and you didn't give him the full facts, did you?---I did not ask for anything to be signed off - - -

You said the decision was being made up higher and that was Mr Padowitz who made the decision, but you communicated to Ms Lambert that she was no longer to be employed at Logan?---No. I asked the directors what they wanted me to do.

Directors plural or singular?---I spoke to both Manne and Lenny.

So Mr Padowitz senior, what did he say to you?---He said that we should accept the - words to the effect that we should accept the resignation.

[87] The letter of offer of 11 October 2012 clearly sets out to the Applicant that her position in Australia would not be available to her once she accepted the New Zealand position. However the letter clearly sets out that the Applicant had a period in which to accept the offer, and was required to do so by signing the agreement and returning it. If she failed to do this the offer would be withdrawn. The Applicant wrote to the Respondent and rejected the offer.

[88] The Applicant was dismissed by the Respondent following her declining the New Zealand offer. While frustrating for the Respondent, the Applicant was entitled, as at the 16 October 2012, to refuse to accept the offer put to her. While the Respondent did take steps to ensure the Applicant was aware of the consequences of her acceptance of the offer (ie that the Australian position would no longer be available to her) the Applicant had not formally accepted the offer given her uncertainty about its final terms.

[89] The Respondent submitted that in relation to the warning to the Applicant regarding her Australian position, that the Applicant was warned “that there would not be a position for her at Loganholme, if she did not go to NZ on the second occasion”. 10 In this regard the Respondent referred the Commission to Annexure D to Exhibit 1. The terms of Annexure D are however not as the Respondent submitted. The letter of 11 October is in such terms that the Respondent is “please[d] to offer [the Applicant] the position of Managing Travel Consultant”. The letter is not expressed in terms of putting to the Applicant, a contract that reflects a settled agreement. If the offer had been accepted, as the Respondent submitted it was, then it is illogical that the Respondent would express it as an offer subject to acceptance and being capable of withdrawal by the Respondent, or by rejection by the Applicant.

[90] The Respondent placed reliance upon a statement of the Applicant, where she stated she withdrew her interest “because of the conflicting information [she] was being given”. 11 This in the Respondent’s submission, is to be taken against the Applicant. However on the evidence before the Commission the confusion of the Applicant is hardly surprising given that it was less than two weeks before the Applicant was apparently meant to start work in New Zealand, on a permanent basis and the terms of the offer were still not finalised.

[91] The Applicant’s employment was dismissed after she rejected the alternative offer of employment.

Section 387

[92] The following sets out the relevant considerations with respect to s.387 of the Act. The following sections are taken from the Act prior to the name change from FWA to the Commission. In so far as the merits of this matter are concerned the differences are not relevant.

Section 387(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)

[93] The Applicant submitted that she was terminated for refusing to go to New Zealand. The Applicant stated that she was told this by her Manager, and that the Manager had made the same announcement to staff regarding the Applicant’s termination.

[94] The Applicant submitted that there was no valid reason for the termination of the Applicant’s employment and that she had performed well in her position and had significant experience in the travel industry. Further, there were no other issues between the parties.

[95] The Respondent primarily submitted that the Applicant was not dismissed. The Respondent submitted that the Applicant was “given” a position in New Zealand on two occasions. After the first occasion and the Applicant’s refusal to move to New Zealand, the Respondent “warned” the Applicant that it could not happen “that way” again.

[96] The Respondent submitted that it was the Applicant who refused to having anything further to do with the Respondent.

[97] The Respondent submitted that after the acceptance of the second offer regarding the New Zealand position the Applicant was replaced by the Respondent in Australia and that after her refusal there was no position for her to resume.

[98] In support of this resignation contention, the Respondent submitted that the Applicant was offered a few days work for the period between her refusal to take the New Zealand position and her replacement starting and that the Respondent argued this demonstrated the Applicant was not terminated, as the Respondent would not have offered this additional work to the Applicant if she had been terminated.

[99] On the evidence before the Commission, the Applicant’s employment was terminated in response to her rejection of the New Zealand offer. There was no valid reason for dismissal. While the Respondent was no doubt inconvenienced by the Applicant’s refusal to accept the offer of employment in New Zealand, the circumstances are such that the Respondent was not entirely clear with the Applicant as to the elements of the offer. The evidence of the Applicant is supported; that there was some inconsistency between the Respondent’s managers as to what the position and the exact terms of that position were. The Applicant clearly rejected the offer of 11 October 2012 by email on 13 October 2012. The Respondent did not put any further amended offer to the Applicant in writing to address her concerns.

[100] The Respondent’s annoyance at the Applicant’s refusal does not provide a valid reason to dismiss the Applicant.

Section 387(b): whether the person was notified of that reason

[101] The Applicant submitted that she was notified of the reason for termination by Ms Shepherd. The Applicant stated, on the basis that she had rejected the offer, her job had been withdrawn.

[102] The Respondent did not specifically address this criterion in their submissions.

[103] As stated, the reason was invalid and no prior notification was made by the Respondent and the decision was effected immediately.

Section 387(c): whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[104] The Applicant submitted that she was not given an opportunity to respond to the reason of refusing to accept the New Zealand position.

[105] The Respondent did not specifically address this criterion in their submissions.

[106] The process was procedurally deficient.

Section 387(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

[107] Given the immediate manner in which the termination of the Applicant’s employment was effected, the Applicant was denied the opportunity to have a support person present.

[108] The process was procedurally deficient.

Section 387(e): if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

[109] As stated, the Applicant was not aware of any performance issues and she had significant experience in the travel industry.

[110] The Respondent did not press any performance issues in support of the finalisation of the employment. They relied on the Applicant’s refusal to accept the New Zealand position.

Sections 387(f) and 387(g): 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 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

[111] The Applicant’s submission in this regard was that whether or not the small business fair dismissal code applied, the termination was “completely unjustified and unfair”. It should be noted that the Respondent did not seek to rely upon the small business fair dismissal code. 12

[112] Based on the evidence, the company is a small and growing family owned and operated business. 13 However, the process cannot, when measured against the code, be considered justified or procedurally fair.

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

[113] No other further persuasive relevant matters were raised to be taken into account by the Commission.

Conclusion

[114] It is noted that the Respondent, in passing, in their closing submissions purported to make an application for the matter to be dismissed pursuant to s.399A of the Act. The Respondent further purported to make an application for an order for costs, on an indemnity basis, pursuant to s.400A of the Act.

[115] The Respondent has not specified which part, or on what basis, the application should be dismissed pursuant to s.399A of the Act. Regardless, it is in the ordinary course inappropriate to, in closing submissions, make such applications for a matter to be dismissed after the parties have spent significant time in filing the materials and time in hearing in the determination of the matter. Accordingly, reference to such applications from the bar table, without a proper application, pursuant to s.399A, have not been given consideration.

[116] In so far as the Respondent has purported to apply for a costs order pursuant to s.400A of the Act it is relevant that the Commission may only make an order pursuant to s.400A(1) if a party has applied “in accordance” with s.402 of the Act. Section 402 of the Act requires that an application for costs under s.400A must be made within 14 days “after” the Commission determines the matter or the matter is discontinued. As neither of those events had occurred at the time the Respondent purported to make an application pursuant to s.400A it must be determined that the Respondent has not applied “in accordance” with s.402 of the Act and that therefore the Commission is not obliged to consider such.

[117] Taking into account all of the facts and circumstances, the Applicant’s employment was terminated, there was no valid reason for the dismissal and the manner of dismissal was procedurally deficient. Accordingly, the termination was harsh, unjust or unreasonable. The Applicant did not seek reinstatement, but the maximum compensation. Given this, it is now necessary to consider the appropriate level of remedy.

Remedy

[118] The relevant legislative provisions for consideration of the remedy are set out in s.390, s.391 and s.392. Section 390 of the Act sets out the following:

390 When the FWC may order remedy for unfair dismissal

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

(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) The FWC may make the order only if the person has made an application under section 394.

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

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

(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case ...

[119] On the basis of the finding that the termination was harsh, unjust or unreasonable the appropriate remedy is now considered. In considering the remedy the approaches as set out in the relevant authorities namely Parker-Walford v PHT Holdings Pty Ltd T/A Sushi-Pro and Tabro Meat Pty Ltd v Kevin Heffernan are adopted. 14

[120] The Applicant did not seek reinstatement, given the manner of the termination and the issues between the parties. The Applicant claimed the maximum amount in compensation.

[121] In considering the remedy, I am satisfied that the Applicant applied pursuant to s.394(3) and in accordance with s.390(3) of the Act. The Applicant was protected from unfair dismissal at the time of dismissal and the Applicant has been unfairly dismissed. I am satisfied that the reinstatement of the Applicant is not the appropriate recourse. The matter does not lend itself to reinstatement, due to the conduct of the Respondent employer, and as stated again, due to the dismissal and its unfairness, and as the Applicant does not seek reinstatement.

[122] I am satisfied that an order for the payment of compensation is appropriate in all the circumstances.

[123] Section 392 relevantly sets out:

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.

[124] An amount of $25,000, representing 26 weeks of the Applicant’s gross annual salary of $50,000 was sought in accordance with s.392(6)(a)(ii), and raised with the Respondent at the hearing. The Applicant is also seeking the recovery of unpaid wages in the amount of $8341.88, though such an order is not within the powers of the Fair Work Commission to make.

[125] Though the parties have provided some submissions regarding remedy, these are not sufficient for the Commission to consider the elements set out in s.392 of the Act at this time, in particular as there is an absence of evidence regarding the considerations under s.392(e) and (f). Accordingly, the parties are directed to file short submissions in relation to the provisions of s.392 only. Directions will issue with this decision. The remedy decision will follow.

COMMISSIONER

 1   Exhibit 3.

 2   Exhibit 1 at paragraph 36.

 3   Annexure D to exhibit 1.

 4   Annexure E to exhibit 1.

 5   Exhibit 1 at paragraph 52.

 6   Exhibit 6, annexure DS01.

 7   Transcript at PN978.

 8   Transcript at PN987.

 9   Transcript at PN1019-1032.

 10   Respondent final submissions filed 22 April 2013.

 11   Transcript at PN441.

 12   Respondent final submissions filed 22 April 2013.

 13   Transcript PN227-PN229.

 14   Parker-Walford v PHT Holdings Pty Ltd T/A Sushi-Pro[2013] FWCFB 2191; Tabro Meat Pty Ltd v Kevin Heffernan [2011] FWAFB 1080.

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