Ms Kate Dalton v Larrikin Holdings Pty Ltd T/A Planet Video
[2012] FWA 5446
•14 AUGUST 2012
[2012] FWA 5446 |
|
DECISION AND REASONS FOR DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Kate Dalton
v
Larrikin Holdings Pty Ltd T/A Planet Video
(U2012/222)
COMMISSIONER CLOGHAN | PERTH, 14 AUGUST 2012 |
Unfair dismissal.
[1] On 7 February 2012, Ms Kate Dalton (“the Applicant”) made application to Fair Work Australia (FWA) seeking a remedy for alleged unfair dismissal from her employment with Larrikin Holdings Pty Ltd T/A Planet Video (“the Employer”).
[2] The application was made pursuant to s.394 of the Fair Work Act 2009 (“the FW Act”).
[3] The matter was listed for conciliation on 28 February 2012 but did not proceed at the Employer’s request. The matter was referred to me for arbitration on 6 March 2012.
[4] At the hearing on 25 June 2012, Ms Dalton was represented by her father, Mr J Dalton. The Applicant gave evidence in support of her application. In addition, two former employees, Ms K Eckart and Ms S Knight gave evidence for the Applicant.
[5] The Employer was represented by Mr Haydn Robinson who also gave evidence on its behalf. In addition, Ms C Harwood, also a former employee, gave evidence for the Employer.
[6] Procedural directions to assist in the hearing were issued on 8 March 2012. Amended procedural directions were issued on 14 May 2012.
[7] Written documentation received as a result of the procedural directions was incorporated into the arbitral proceedings. Having received the written material, heard oral submissions and evidence, I reserved my decision on 25 June 2012. Having considered all the material, given appropriate weight to all the evidence and assessed the credibility of the witnesses, this is my decision and reasons for that decision.
RELEVANT BACKGROUND
[8] Ms Dalton commenced employment with the Employer on 24 July 2006 as a part-time Sales Assistant. On 28 May 2007, Ms Dalton became a full-time Sales Assistant.
[9] Ms Dalton’s personnel file which was provided to the Tribunal contained minimal records of various pay increases, two sick leave certificates and two requests for annual leave during her period of employment.
[10] Ms Dalton states that a discussion with Mr Robinson regarding annual leave took place in February 2011. Mr Robinson denies that such a discussion took place.
[11] In April 2011, a discussion took place between Ms Dalton and Mr Robinson, the content which is in dispute, concerning annual leave and an overseas trip to be taken by the Applicant.
[12] Shortly put, Ms Dalton asserts that for the first part of her overseas trip she was on annual leave and subsequently, until 31 January 2012, on leave without pay.
[13] Mr Robinson asserts that Ms Dalton gave notice of her intention to resign in the discussion in April 2011 prior to going overseas.
[14] Ms Dalton left Australia on 5 July 2011 and returned on 21 January 2012.
[15] Ms Dalton attended the Employer’s premises on 24 January 2012 to confirm her arrival back in Perth and to discuss her return to work 1.
[16] A meeting between Ms Dalton and Mr Robinson took place on 27 January 2012.
[17] On 31 January 2012, Ms Dalton completed a four hour shift with the Employer.
[18] On 6 February 2012, Ms Harwood advised Ms Dalton by text message that she had been instructed by Mr Robinson to inform her that he did not want to rehire her. Ms Harwood also informed Ms Dalton that the Rentals Manager position had been advertised on Seek.com 2.
[19] On 7 February 2012, Ms Dalton made application to FWA alleging unfair dismissal by the Employer.
[20] The Applicant states that, prior to her taking annual leave and leave without pay, she had been employed for approximately five (5) years and consequently meets the first condition of being protected from unfair dismissal as set out in paragraph 282(a) of the FW Act.
[21] It is not in dispute that the Applicant is covered by the General Retail Industry Award 2010 or that her annual rate of earnings is less than $118,100.
[22] Ms Dalton asserts that, after taking a period of annual leave and leave without pay, she was dismissed on 6 February 2012 and that her dismissal was unfair.
RELEVANT STATUTORY FRAMEWORK
[23] Section 382 of the FW Act provides:
• 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.
[24] The meaning of “minimum period of employment” is set out in s.383 of the FW Act as follows:
• 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.
[25] In determining whether a person has been unfairly dismissed, s.385 of the FW Act provides:
• 385 What is an unfair dismissal
A person has been unfairly dismissed if FWA is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
[26] The meaning of “dismissed” is set out in subsection 386(1) of the FW Act as follows:
• 386 Meaning of dismissed
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
[27] Finally, the Tribunal must take into account the following in s.387 of the FW Act in determining whether the dismissal was harsh, unjust or unreasonable:
(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.
CONSIDERATION OF EVIDENCE WITHIN THE STATUTORY FRAMEWORK
Did Ms Dalton give notice of resigning from her employment in April 2011?
[28] The relevant statutory framework requires that, for an applicant to be protected from unfair dismissal, he or she has to have completed the minimum period of employment. For a small business employer, the minimum period of employment is one (1) year at the time of being given notice or immediately before dismissal. If the employer is not a small business employer, the employee must have completed six (6) months at the time of being given notice or being dismissed.
[29] While the Employer did not argue its case in terms of the Applicant failing to meet the minimum period of employment under the FW Act, this factor is determinative of the Tribunal’s jurisdiction to consider the application. Ms Dalton asserts she has met the minimum period of employment as she has been continuously employed full time since 28 May 2007. The Employer asserts Ms Dalton gave notice in April 2011 of her intention to resign from her employment in July 2011 and was re-employed on 31 January 2012.
[30] Should I be satisfied that Ms Dalton proceeded on annual leave and leave without pay (LWOP), the Applicant, at the time of her dismissal, had completed over four (4) years as a full time employee and meets the minimum employment period irrespective of whether the Employer is a small business or otherwise. However, if Ms Dalton did resign from her employment before proceeding on annual leave, she had not completed the minimum period of employment in February 2012 when she was dismissed, and consequently, is not protected from unfair dismissal.
[31] While the explanation for the difference between the two parties could be many and varied, the Tribunal is left with the evidence, both written and oral, of those witnesses that gave evidence in proceedings.
[32] Ms Dalton’s written evidence is as follows:
• in February 2011, she spoke to Mr Robinson and requested four (4) weeks annual leave to attend her partner’s sister’s wedding in Europe;
• in late April 2011, she sought approval from Mr Robinson to take six (6) months LWOP at the end of her annual leave to undertake a working holiday in Canada;
• in her discussions with Mr Robinson concerning LWOP, she advised him that if he did not approve the LWOP, Ms Dalton would return to work at the end of her annual leave;
• Mr Robinson approved her request for annual leave and LWOP and her understanding was that she would return to her job as Manager Rental and Clothing at the end of January 2012;
• prior to going on annual leave and LWOP, Ms Dalton prepared six (6) months of rosters for the Clothing Section and six (6) months ordering for the Rental Section. Ms Dalton provided documentary evidence to this effect;
• while in Canada, Ms Dalton obtained employment with video and alternative clothing employers;
• while overseas, Ms Dalton kept in touch, by email, with the Acting Rentals Manager, Ms Harwood and confirmed her intention to return to work in January 2012;
• on 22 December 2011, Ms Dalton emailed her Employer advising of her intention to return to work on 30 January 2012;
• Ms Dalton returned to Perth on 21 January 2012 and visited Planet Video on 24 January 2012. Ms Dalton arranged a meeting with Mr Robinson on 27 January 2012 to discuss a handover with the Acting Manager 3.
[33] The remainder of Ms Dalton’s written evidence relates to circumstances leading to her dismissal which I will consider later in these Reasons for Decision.
[34] Mr Robinson’s written evidence is that:
• there was no discussion in February 2011 concerning a wedding in Europe and he does not recall a request for four (4) weeks annual leave. Mr Robinson can find no record of a request for four (4) weeks annual leave and “it was standard company procedure that a request form be filled out and signed by me before holidays”;
• there was never a request or mention of LWOP, “that terminology was not used. As a small employer we would never be in a position to guarantee a job in 6 months time...Kate [Ms Dalton] did ask me if there would be a job to come back to and I said I could not guarantee it, we would have to see if and when she returned”;
• Mr Robinson claims that Ms Dalton’s evidence that she would return to work after her annual leave, if LWOP was not approved, is a complete fabrication. However, if such a choice had been suggested, he would have “wanted her back in 4 weeks and she would not have left our employ”;
• Mr Robinson contends that the six (6) month rosters were of no use to him and the “handover work [6 months rental ordering] for rental was the work I would expect from any supervisor who was leaving with a fair amount of notice”;
• Mr Robinson had no knowledge of Ms Dalton’s employment in Canada;
• Mr Robinson describes the emails between Ms Dalton and Ms Harwood as private. Further, Ms Harwood was “not authorised to provide Ms Dalton with the promise of employment. Mr Robinson concedes that Ms Harwood raised with him a job for Ms Dalton on her return but his view was that “I had been unhappy with her performance when she left and we will see what happened if she returned”;
• Mr Robinson acknowledges that Ms Harwood emailed him and that “he read the first four lines” only and “at the time there were no vacancies, he [Mr Robinson] was unhappy with her performance...and the relationship between us hadn’t been the easiest” and he did not reply to Ms Dalton’s email;
• Mr Robinson agrees that Ms Dalton attended the store on 24 January 2012. Ms Harwood, on the previous day, had given four (4) weeks notice of terminating her employment and had recommended that Ms Dalton contact Mr Robinson about her position;
• Mr Robinson agrees that he had a meeting with Ms Dalton but characterises the meeting different to her. Mr Robinson gives evidence of his extreme unhappiness with her performance before she left and stated that, “...if she did get her job back she would have to start again on a reduced rate and that I would trial her with my supervisor [Ms Harwood]. I did this against my better nature but there was a position opening up and I felt it was being decent in giving her another chance” 4.
[35] Clearly, there are material differences between the Applicant and Employer’s version of what happened. The disparity is all the more difficult because much of what is material occurred between Ms Dalton and Mr Robinson and cannot be corroborated directly. Notwithstanding this situation, it is necessary to draw a conclusion from the disparate evidence as it is fundamental to whether Ms Dalton is protected from unfair dismissal.
[36] I now turn to the disparate evidence of what happened according to Ms Dalton and Mr Robinson.
[37] There is no dispute between the parties that Ms Dalton did not take annual leave by way of written request. For Mr Robinson, this is evidence that no discussion took place in February 2011 and further, no request was made by Ms Dalton for annual leave. Firstly, Mr Robinson’s position would have force if it was “standard company procedure”. The fact is that it wasn’t standard company procedure and Ms Dalton’s personnel file yielded two annual leave form requests of which one is signed by the Applicant and Mr Robinson in June/July 2009, and a further request in January 2010, which is signed by Ms Dalton but not Mr Robinson.
[38] When cross-examined by Mr Robinson, Ms Dalton gave evidence that the Employer’s premises contained a calendar which states, “Managers must write all their holidays on this”. The calendar was next to Mr Robinson’s office and contained the words, “Kato [Ms Dalton] in Swedeland” and next to it Ms Knight had written, “No”.
[39] Ms Knight, who was the Office Manager for five (5) years to March 2012, gave written evidence that she was aware that Ms Dalton had requested annual leave in early 2011 to go to Sweden for a family wedding 5. Ms Knight, in cross examination, gave oral evidence that both her and Mr Robinson discussed Ms Dalton’s annual leave and Mr Robinson required Ms Knight to obtain a written leave request from Ms Dalton.
[40] On the evidence above in paragraphs [37] to [39], I am satisfied that it is more probable than not, that a discussion took place between Ms Dalton and Mr Robinson concerning her taking annual leave to go overseas. It is not necessary for me to determine whether Mr Robinson approved the taking of the leave, but I find that such a discussion did take place at that time.
[41] I now turn to the discussion between Ms Dalton and Mr Robinson in April 2011.
[42] Ms Dalton asserts that Mr Robinson approved both annual leave and LWOP during the discussions in April 2011. In support of this assertion, Ms Dalton gives evidence of the preparation of rosters six months in advance and the pre-ordering of rental stock; these are facts which are not disputed, notwithstanding Mr Robinson downplaying their value. It is also a fact that Ms Dalton and Ms Harwood, who was Acting Rentals Manager, exchanged emails while the Applicant was overseas. I accept Mr Robinson’s contention that they were private, however, they reflect the sense that Ms Dalton was on LWOP and this is illustrated by an email from Ms Harwood on 11 October 2011 when she states:
“Regardless of whether I get in or not [university] I will still be giving your job back to you when you come home that is if you want your job back, if you don’t want to come back here I will have to hire someone to replace me because I do not want to be manager next year.” 6
[43] Ms Dalton’s response email which includes the following:
“...I went through the whole training process [with a Canadian employer] which I found useful in the sense that I can transfer many of the practices when I get home...
I also picked up a whole bunch of DVDs that we can rent as imports...
So I’ll bring those back with me. If any have a local release in the meantime, that’s fine, I’ll just keep the one’s I got.” 7
[44] Ms Harwood responds to the above email in paragraph [43] and includes the following:
“...what I might do is spend a week handing over to you when you are ready to come back to work...you have time to settle back in and establish yourself as manager...but yes your job will definitely be here for you when you get back.” 8
[45] Further in a later email in November 2011, Ms Harwood enquires:
“...just wanted to check that you were still planning to come back to Planet and what dates you are looking at starting up again.”
[46] And Ms Dalton’s response:
“I’m definitely coming home and definitely coming back to Planet. I can’t wait actually, everything I’ve done and learnt here I feel I can apply back home. I’ll be home on the 21st of Jan. I was planning on coming back to work on the 5th of Feb. I can comeback earlier if you need.” 9
[47] Later in another email, Ms Harwood states:
“...call us when you get to Perth even if its just for an hour and we can decide how you want to do this re-integration back to manager thing...” 10
[48] Finally, in an email on 22 December 2011 to Mr Robinson, Ms Dalton states:
“...Sooooooo, do I still get my job back?? Please...Because I’ve spoken to Caitlin and I’m showing up for work on the 30th regardless...
Honestly, it’s given me a great appreciation for what I have back home. Thanks for allowing me the opportunity to realise that.” 11
[49] Mr Robinson gave oral evidence that Ms Dalton “never asked for extended leave. She would’ve known not to because nobody in Planet had been given extended leave. It’s always understood that if you go and when you come back, if there’s a job there then perhaps you get a job.” 12
[50] Mr Robinson gave unequivocal evidence that at no time did Ms Dalton seek LWOP.
[51] Apart from the denial that any request was made by Ms Dalton for LWOP, Mr Robinson relies upon the fact that no comparator or precedent existed for him to make such a decision which the Applicant claims he made.
[52] With respect to the comparator argument, the issue is not as clear as Mr Robinson portrays and the evidence of Ms Knight is that two permanent part time employees were given what was described as “extended leave” by the Employer and their jobs remained for them on return 13. Mr Robinson attempted to distinguish the circumstances by way of the duration of the extended leave14 but the primary matter remains, and that was, “...it was, you know, made sure that they were going to have a job when they came back.”15 Both Ms Knight and Mr Robinson agreed there was no official “form” of extended leave.
[53] With respect to the assertion by Mr Robinson that Ms Dalton gave notice of her resignation, Mr Robinson, in his oral evidence, was not as unequivocal. In cross examination, his evidence of the April 2011 meeting went as follows:
“So are you saying in that meeting in April she orally gave notice of her intention to resign?---Yes, that she was going, yes.” 16
“I didn't ask that question. The question I asked, did she orally give notice of her resignation?---Yes. do you want to clarify that, I'm not quite - - -” 17.
“Did she give you notice that she was going to take leave three months later, or did she give notice of her resignation?---She gave me notice of her resignation that she was leaving against my wishes.” 18
“And it never occurred to you to ask her to put that in writing?---Well, I had a letter of sorts from her which outlined the reasons why she was going, but I - - -“ 19
“Can you show me that letter?---No, I told her it was unnecessary. I threw it in the bin. I - this was my discussion of why, and "Why are you doing this?" and everything else, that's what it was. But at the end of that discussion she'd left me in no doubt that she was leaving, there was nothing I could do to stop her and then (sic) it was going to happen sometime in June or July.” 20
“Now, given what you've told Mr Dalton (sic) about the employment laws, do you think it was wise to throw that in the bin?---Well, I - I don't know that you would have - even if I had have had it in Court, described it as a letter of resignation. I think more you would have described it as a letter of explanation.” 21 (my emphasis)
“All right. Then let's get down to tin tacks. It wasn't a letter of resignation, was it?---If you mean a direct, "I am leaving on this day" - - - 22
“Mr Robinson, Mr Robinson?---No, it wasn't.” 23
“Good. You're on oath, I just expect a straight answer to a straight question. So the simple fact is that the applicant didn't give written resignation, didn't give oral resignation?---She only gave oral resignation, yes, I disagree with that.” 24
“I'm going to ask you this question again. Did Ms Dalton orally say to you that she was resigning her employment?---Yes. Yes.” 25
“I'll put this question to you, or did she say orally she was going on a trip?---She was leaving the employment of Planet to travel. There was no holiday mentioned.” 26
“If that was the case, then why would the applicant be seeking extended leave?---Well, she didn't, your Honour, that's where we disagree, there was no mention of it.” 27
“Are you saying there was no mention that she was going to be away for six months?---No. I had - I had - my only interest is the fact that she was resigning, as to her future plans they were of no interest to me. Whether it was six months, six years, or whatever, travel is travel. It's open ended. It seemed to me at the time, your Honour, that she was pretty desperate to go and that's why I couldn't talk her out her resignation.” 28
“I'm still trying to understand if somebody is resigning, why would they be seeking six months leave without pay?---What I'm saying is it was never asked for - - -“ 29
“Why would she do that?---She didn't. It was never mentioned.” 30
“So there was never any mention at all of the applicant seeking time off without pay?---No, no. That's what I find incredulous about the claim.” 31
[54] At no time did Mr Robinson give evidence to the effect that Ms Dalton stated, “I am resigning effective from this [a particular date]”.
[55] Mr Robinson submitted, in writing, that:
“Kate Dalton left Planet Video in July of last year...we never received a resignation letter however I was of the view that she had permanently left the business as she had gone overseas without any discussion of when or if she would return.”
[56] Further, in cross examination, Mr Robinson gave evidence that Ms Dalton was leaving her employment. However, when asked when had she resigned, Mr Robinson states it was in March 2011. Further,
“...how was her employment terminated with Larrikin Holdings in July of 2011?---Well, to be honest with you - and I've got to be honest about this, I had no idea she'd left. As I say, as an employer you move on mentally. How she left and what fashion she left in, I didn't have a lot of knowledge in. 32
“Well, that's your view?---- - - (indistinct) holidays. Whether there was or was not a resignation form, everybody knew she was leaving. I mean, there was no lack of knowledge of the fact that she was leaving. 33
“Was there any correspondence from the employer to clarify her position to say, "Goodbye and thanks for all your service" or "Confirming that you are resigning"? Anything from the employer to tidy up the books?---I had already had those discussions in Kate with - in April when she decided to leave. Pretty well after that it was a closed subject. I didn't write her a goodbye letter. I was simply too busy at the time. I didn't know she'd left. 34
[57] The allegation that Ms Dalton had resigned is also at odds with inferences in the emails exchanged between the Applicant and Ms Harwood. However, in her written evidence, Ms Harwood states:
“I was under the impression that she was leaving and then if there was a position open when she got back she would be rehired...
People simply leave for whatever reason and sometimes if they wish to come back at a later date they go through the normal process of being interviewed and rehired if there is a vacancy.” 35
[58] I am uneasy with the evidence given by Ms Harwood and consider her statements contained in the email exchange with Ms Dalton, as a contemporary and preferable reflection of the true circumstances which existed.
[59] I now turn to the only remaining document which is the Employment Separation Certificate.
[60] The Employment Separation Certificate is dated 10 February 2012 and states that Ms Dalton ceased employment on 5 July 2011. The reason for the separation is “employee took extended leave without pay to travel overseas”. It is notable that the box next to the reason - “employee ceasing working voluntarily” - has not been ticked.
[61] An analysis of the circumstances above, in my view, cannot lead to a conclusion that Ms Dalton resigned. The Employer does not have a written resignation from Ms Dalton to rely upon. The Employer has not submitted that Ms Dalton specifically stated that she gave notice to resign on a particular date. The Employer claimed that Ms Dalton had provided a written resignation but retracted such evidence and stated that it was in fact an explanation for travelling overseas. Mr Robinson claims that Ms Dalton did not raise the matter of annual leave to go overseas, however, I have evidence he requested Ms Knight to ensure that the Applicant filled out a annual leave form. I have evidence, which is not disputed, that Ms Dalton did six (6) months advanced preparatory work before 5 July 2011. The emails between Ms Dalton and Ms Harwood give the impression of a person returning to her former position prior to taking LWOP. Finally, the Employment Separation Certificate explicitly states that Ms Dalton “took” (past tense) extended leave without pay.
[62] In contrast, I have Mr Robinson’s evidence that Ms Dalton resigned during a discussion with him in April 2011 and a comparator or precedent argument which was not convincing. Having examined the documentation and taking the opportunity to observe the witnesses and their evidence, I am not satisfied on the balance of probabilities that Ms Dalton resigned in April 2011 and her employment ceased on 5 July 2011.
Was Ms Dalton’s dismissal unfair?
[63] I now turn to the issue of whether Ms Dalton’s dismissal was unfair. The facts surrounding the dismissal are much clearer.
[64] Ms Dalton returned to Perth on 21 January 2012 and visited her workplace on 24 January 2012.
[65] On 24 January 2012, Ms Harwood advised Ms Dalton that she had given four (4) weeks’ notice on the previous day. A meeting was arranged between Mr Robinson and Ms Dalton on 27 January 2012.
[66] While the parties’ evidence of the discussion on 27 January 2012 differs in some respects, both Ms Dalton and Mr Robinson agree that Ms Dalton would: recommence her employment; that her salary would be reduced by $2 per hour on account of the Clothing section closing down, and that Mr Robinson would have Ms Knight draw up a new contract of employment.
[67] On 30 January 2012, Ms Dalton, while not rostered to work, attended the Employer’s premises for the purposes of a work handover discussion with Ms Harwood.
[68] Prior to the meeting, what was variously described as an argument or altercation took place between Ms Dalton and Mr Robinson concerning a “hair extension” worn by Ms Dalton. I set this out not for the purposes of judgement but to indicate that Ms Dalton makes the point that she was “off duty” and Mr Robinson states that he has the right to determine what is appropriate dress at work, especially if it has health and safety implications.
[69] On 31 January 2012, Ms Dalton completed a four hour shift. Ms Dalton did not wear a hair extension during her shift.
[70] Mr Robinson’s evidence of what happened during Ms Dalton’s shift is as follows:
“When she was doing this shift I was in the store for about 10 minutes. While Kate [Ms Dalton] was on the counter she did not attempt to speak to me and there was a definite feeling of hostility toward me”. 36
[71] Mr Robinson immediately continues:
“I reiterate that I was extremely ill at this point (see medical certificate) and I do not have a clear recollection of what happened after January 31st”. 37
[72] At this point in his written evidence, Mr Robinson relies upon the evidence of Ms Harwood.
[73] Ms Harwood’s evidence is that Mr Robinson considered Ms Dalton “extremely hostile during her shift and he was not sure he could work with her”. 38
[74] The evidence of Ms Harwood is that, “we [Ms Harwood and Mr Robinson] agreed on some extra conditions for her re-employment namely she would dress appropriately for work (no more feathers), that she would be able to get along with Haydn [Mr Robinson] as they would be working closely together and that she would start off as an ordinary staff member and I would continue to supervise until he felt more confident in her ability to run the counter”. 39
[75] Ms Harwood telephoned Ms Dalton on 2 February 2012 and advised her of the Employer’s concerns and new conditions. Ms Dalton agreed to the new conditions.
[76] On the afternoon of the same day (2 February 2012), Ms Harwood gave evidence that Mr Robinson enquired as to whether Ms Harwood had relayed the new conditions to Ms Dalton.
[77] The following text message of 2 February 2012 from Ms Harwood to Ms Dalton set out what happened next:
“He asked if I’d spoken to you and what the outcome was, I said I had and you were cool with it then he was all like well if she wants to work here she’ll have to come talk to me, and I waslike haydn that’s not what you said yesterday...”
[78] Ms Dalton’s response to Ms Harwood is as follows:
“I’ve already spoken to him...Twice. Either I’m back or I’m not @ this point. I understand the pre conditions and am willing to accept. He’s already explained to me how planet has changed and I have already stated to him that I will comply. As far as I’m concerned, if doesn’t take me back, he’s firing me & I want it in writing. But I’m not going to keep driving down there so he can yell at me, I can’t afford it, financially or emotionally.”
[79] Having been advised of the circumstances, Ms Harwood gives written evidence that on the same day:
“Haydn [Mr Robinson] and I decided that given the limitations he was experiencing due to his various illnesses it might be best not to re-employ Kate [Ms Dalton] and find someone else. He then informed me he would instruct one of the directors Scott Jones to advertise the position on seek”. 40
[80] The following evidence demonstrates how the dismissal was effected by the Employer in a text from Ms Dalton to Ms Harwood on 6 February 2012:
“...just checking to see if I have any shifts this week or if HR is still demanding I speak to him? I don’t have any issues with the conditions, I just need them in writing...”
[81] Ms Harwood’s response on the same day:
“I was really hoping you’d find another position so I wouldn’t have to tell you that haydn has decided he doesn’t want to hire you...”
[82] The criteria for considering whether the dismissal was harsh, unjust or unreasonable is set out in s.387(a)-(h) of the FW Act in paragraph [27].
Was there a valid reason for dismissal?
[83] I have adopted the definition of a valid reason stated by North J in Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373 in the following terms:
“In its context in s.170DE(1), the adjective “valid” should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s.170DE(1). At the same time the reasons must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘be applied in a practical, commonsense way to ensure that the employer and employee are treated fairly’.”
[84] The written evidence I have before me is a Employment Separation Certificate which does not identify why Ms Dalton was dismissed, or alternatively, the evidence of Ms Harwood that she and Mr Robinson decided, for his health reasons, that it was better not to continue with Ms Dalton’s employment.
[85] I am satisfied in view of the circumstances set out above, there was not a valid reason for Ms Dalton’s dismissal.
Notification of the reason for termination of employment
[86] Ms Dalton was not notified of the reason for the termination of her employment.
Opportunity to respond
[87] Ms Dalton sought but was not given a formal letter of resignation 41 to which she may have been able to respond. In the circumstances of her dismissal, Ms Dalton was not given the opportunity to respond.
Support person
[88] Ms Dalton was dismissed by text message and a support person was neither offered nor accessible.
Unsatisfactory performance
[89] I have no contemporaneous documentation about Ms Dalton’s performance except correspondence on her personnel file setting out her pay increases and thanking her for her “loyal service and commitment to both myself [Mr Robinson] and the company so far”. It is notable that Ms Dalton commenced employment as a part-time sales assistant and prior to going overseas was the Manager Clothing and Retail.
[90] I am unable to accept the portrayal by Mr Robinson that for a total of 10 minutes in a four hour shift, Ms Dalton was extremely hostile to him.
Employer’s size and human resources
[91] Mr Robinson gave evidence that “we [the Employer] have approximately 40 staff members at any one time and have done so for many years” 42.
[92] Despite the size of the Employer, Ms Dalton’s dismissal was remote and swift, and it would appear without discussion with any person familiar with human resources practices. On the evidence, Ms Harwood was the only source of consultation concerning Ms Dalton’s dismissal within the Employer’s structure.
Other matters
[93] I have not taken into account any matters other than those set out above in the decision.
[94] In summary, Ms Dalton expected to return to her position following annual leave and LWOP. Ms Dalton returned to her workplace three (3) days after arriving back from overseas, met with Mr Robinson three (3) days later and commenced her first shift four (4) days later. From the evidence, it would appear that there were no capability or performance issues raised with Ms Dalton by the Employer until this application was made. A dispute arose about Ms Dalton’s hair extension but that was not during working hours. Mr Robinson felt that Ms Dalton was extremely hostile to him but this was also only raised as part of these proceedings and no words were exchanged between the parties at the time. Finally, it appears that Mr Robinson’s health played a part in his, and Ms Harwood, coming to the conclusion, in the light of this factor, that it would be better to terminate Ms Dalton’s employment. Having made this decision, the procedure leading to termination of Ms Dalton’s employment was devoid of any fairness and culminated in a text message of dismissal. Both the reasons for dismissal and the process, I find unfair.
REMEDY FOR UNFAIR DISMISSAL
[95] Ms Dalton has sought and found alternative employment. Further, the Applicant is not seeking reinstatement.
[96] Having heard all the evidence, the circumstances leading to the dismissal and the request not to be reinstated, I am satisfied that reinstatement is not appropriate.
[97] As a consequence of determining that reinstatement is not appropriate, I am satisfied that an order for compensation is appropriate as provided for in s.390(3)(b) of the FW Act.
COMPENSATION
[98] In determining an amount of compensation in lieu of reinstatement, I am required by s.392(2) of the FW Act to take into account the following.
Viability on the Employer’s enterprise
[99] While the Employer has not provided a submission or evidence as to the likely effect on the Employer’s business, I have come to the conclusion that the economic amount, of itself, will not jeopardise the ongoing maintenance of the business.
Period of service
[100] Ms Dalton was employed part-time on 24 July 2006 and a full-time employee since 28 May 2007.
Estimate of remuneration likely to be lost as a result of dismissal
[101] Ms Dalton was dismissed on 6 February 2012.
[102] Ms Dalton sought and obtained further employment on 20 March 2012.
[103] Ms Dalton’s current contract of employment provides for 35 hours per week at $20 per hour.
[104] Prior to taking annual leave and LWOP, Ms Dalton was working 40 hours per week at $24 per hour. At the time of her dismissal, Ms Dalton was earning $22 per hour.
[105] Between 6 February and 20 March 2012 is six (6) weeks:
• Six (6) weeks at 40 hours is 240 hours
• 240 hours at $22 per hour is $5,280.00 less appropriate taxation
• Plus superannuation at 9% is $475.20
Efforts to mitigate loss suffered by dismissal
[106] I am satisfied on the evidence that Ms Dalton attempted to mitigate the loss suffered by her dismissal.
Remuneration earned from work between dismissal and commencing new employment
[107] No remuneration was received.
Income between Order and payment of compensation
[108] Not relevant to present application.
Other matters
[109] While the Applicant sought to be compensated for the reduced remuneration after commencing new employment, Ms Dalton stated that she would accept what is fair and reasonable in the circumstances. Having considered the totality of all the evidence, I am satisfied that the period between dismissal and re-employment is appropriate.
[110] The Tribunal has to make a determination on the evidence in these proceedings. Neither party submitted that there had been a significant misunderstanding on what was agreed in relation to the meeting in April 2011 - because there was little agreed upon. However, the point should be made that Ms Dalton could have made a written request for LWOP or made a notation of the meeting in April 2011. Similarly, Mr Robinson could have sent Ms Dalton a note of the outcome of the meeting in April 2011, or alternatively, recorded somewhere on her personnel file that she had resigned; neither case occurred. As a consequence, I have to make a determination on the facts as a whole and the evidence adduced. I have taken these circumstances into account when determining the amount of compensation.
CONCLUSION
[111] In accordance with my Decision and Reasons For Decision pursuant to s.392 of the FW Act, I will order that Larrikin Holdings Pty Ltd T/A Planet Video pay Ms Dalton the amount of $5,280 less appropriate taxation and $475.20 in superannuation to the appropriate fund, as compensation in lieu of reinstatement.
[112] The amount is to be paid within seven (7) days of the Order.
[113] Attached is the Order (PR527834) issued with this Decision and Reasons For Decision.
COMMISSIONER
Appearances:
Mr Dalton on behalf of the Applicant.
Mr Robinson for the Employer.
Hearing details:
2012:
Perth,
25 June.
1 Exhibit A2
2 Exhibit A2
3 Exhibit A3
4 Exhibit R2
5 Exhibit A6
6 Exhibit A3
7 Exhibit A3 - email 4
8 Exhibit A3 - email 4
9 Exhibit A3 - email 6
10 Exhibit A3 - email 6
11 Exhibit A3 - email 7
12 PN 815
13 PN 699
14 PN 701
15 PN 701
16 PN 953
17 PN 954
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20 PN 957
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25 PN 963
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27 PN 965
28 PN 966
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30 PN 970
31 PN 971
32 PN 866
33 PN 869
34 PN 882
35 Exhibit R5
36 Exhibit R2
37 Exhibit R2
38 Exhibit R5
39 Exhibit R5
40 Exhibit R5
41 Exhibit A3 - email 8
42 Exhibit R1
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