Ms Leonie Brunner v Amalgamated Marketing Pty Ltd T/A Radio Stations 4ak 4WK

[2015] FWC 7837

[2015] FWC 7837

FAIR WORK COMMISSION

DECISION

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

Ms Leonie Brunner
v
Amalgamated Marketing Pty Ltd T/A Radio Stations 4AK 4WK
(U2015/6599)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 17 NOVEMBER 2015

Summary: application for an unfair dismissal remedy – can resignation with notice constitute a forced resignation for purposes of s.385? – can employer assume employee will not return to work without further inquiry? – compensation where employee previously resigns with stipulated notice period limited to balance of notice period – compensation ordered.

[1] This decision concerns an application by Ms Leonie Maree Brunner under s.394 of the Fair Work Act 2009 (“the Act”) seeking an unfair dismissal remedy in relation to her alleged dismissal from Amalgamated Marketing Pty Ltd T/A Radio Stations 4AK and 4WK (“the Company”).

[2] Ms Brunner had performed her duties as an advertising sales representative for the Company since 1 September 2014, a period of some 10 months.

[3] Ms Brunner contends that on Friday 3 July 2015 around 4 PM, the Company’s owner, Mr Bill Caralis, telephoned her and a conversation took place regarding a sales promotions exercise to be held the following week. Ms Brunner stated that Mr Caralis was not happy with the number of people attending sales presentations and “he became abusive and he started yelling at” her.

[4] Ms Brunner claims that she had been overworked as she had been performing both the sales position and the receptionist position at the radio stations. Ms Brunner claimed that Mr Caralis had caused her to cry and that she informed him that “if he didn’t stop abusing me I would resign.”

[5] According to Ms Brunner, Mr Caralis “didn’t stop abusing me so I told him I would resign and I then wrote my resignation letter and emailed it to him.”

[6] Ms Brunner’s resignation letter reads as follows

“Mr Bill Caralis
General Manager
[…]

Dear Bill

It is with regret and sadness that I tender my resignation as an advertising sales representative for Radio Stations 4AK and 4WK.

The last 10 months have been extremely challenging but I believe I have done that I have done my job to the best of my ability but unfortunately I am only one person trying to do the jobs of about 3 people.

I thank you for giving me the opportunity to work for you again and I have enjoyed my time working back at the stations I have especially enjoyed working with Brett, Jim, Mark and Doug who have all been extremely supportive and helpful to me.

I am giving three weeks notice and my last day of work will be Friday 24 July. (sic)

Kind regards […]”

[7] Ms Brunner sent her resignation letter to a number of her co-workers and to Mr Caralis.

[8] Having resigned on Friday 3 July 2015, Ms Brunner gave evidence that on Sunday 5 July 2015 she was attended upon by a medical practitioner for reasons that she was “suffering stress and my heart was racing.” The medical practitioner provided a medical certificate indicating that Ms Brunner was not fit to perform her duties on Monday 6 July 2015. Ms Brunner claimed that she then proceeded to text message two of her co-workers to advise them of her inability to attend work the following day (Monday 6 July 2015).

[9] On the morning of Monday 6 July 2015, Ms Brunner claimed that she was telephoned by the station technician, Mr Brett Mathison, and informed that she was required to hand in her work keys and mobile telephone. Ms Brunner also claimed that she was also required to return her work shirts.

[10] These items appear to have been returned in two tranches. The first tranche occurred on the morning of Monday 6 July 2015, whereupon Ms Brunner returned her work keys only. It was at this point that Ms Brunner was informed (by Mr Mathison) that she was not permitted to enter the work site, and having been so instructed, she queried the status of her personal items. Upon so doing, Ms Brunner’s person items were returned to her:

“[…] When Mr Mathison rang me he said to me, the first words he said to me, "Please don't get upset with me." And I said, "What's going on, Brett?" And he said, "You have to come in now and bring your keys and phone in." And I said, "What's happening?" I said, "Are they - are they just - are they sacking me, Brett?" I said, "Is that what they're doing?" He said, "You've just got to come in now with your keys and phone." I was - I was actually, as you know, on a day of sick leave, I just couldn't believe it. I drove down there, I parked out the front. Brett said, "You're not allowed to come inside." I said, "What, I can't go back to my desk?" I said, "I left on Friday afternoon at 5 o'clock and I can't go back to my desk?" He said, "No." And I said, "But what about all my personal belongings?" He said, "I can get them for you now." And I said - and then I was trying to think through my head what I had there, and I said, "I've got pictures and I've got this and that." And so Brett went in and kept bringing them out.” 1

[11] Late in the afternoon of the same day, Mr Mathison telephoned Ms Brunner and sought the return of the mobile phone and the work shirts. Ms Brunner set the matters out as follows in her evidence (under my questioning):

“Did you hand in the work shirts? Well, what happened, Senior Deputy President, was when I went down there I only - I was in such a fluster I had the keys and I had actually forgotten the phone and anyway, I said to Brett, "I'm going to have to bring you back the phone and the work shirts, I don't have them with me" because I was, you know, trying to work out how many work shirts I had. He said, "We need them by 5 o'clock." Anyway, I went home and that afternoon I ended up in hospital. I got home from hospital at 6.30, I went to have a shower, my son came in to me and said, "Brett Mathison is here wanting those work shirts and that phone." And I said to him, "Have you just told him I've just come out of hospital?" And Ben said, "Yes." I said, "I can't believe this is happening."” 2

[12] Ms Brunner stated that “no reasons were given for [her] dismissal.” That is, Ms Brunner considered she had been dismissed by her employer (on Monday 6 July 2015) following her resignation the previous Friday. Ms Brunner agreed in her oral evidence that she was not informed that she had been dismissed, but she construed the circumstances as strongly implying that outcome. For this reason, upon returning the work shirts and keys and being told she was unable to enter the work site, Ms Brunner requested that her personal items on her desk be returned to her; which they duly were.

[13] Ms Brunner did not return to work thereafter, on the assumption her employment had been terminated by the employer and that her notice period as set out in her resignation letter no longer operated. But for this conduct on the part of the employer, Mr Brunner gave evidence that it was her intention to serve out the entirety of her notice period of three weeks.

[14] Ms Brunner received a separation certificate from the Company some five weeks later. Ms Brunner complained that the Company had indicated on the separation certificate that she had resigned her employment and that as a consequence the Company “caused me more stress and financial hardship” owing to the delay in receiving Centrelink benefits where a person has resigned their employment. According to the employer, Ms Brunner was paid out her accrued annual leave and her notice period as defined under her contract of employment, which amounted to one week’s pay. It appears, from Mr Brunner’s submissions, however, that she (Ms Brunner) was not paid any notice by her employer.

[15] The Company claimed in its written submissions that Ms Brunner had lost over 80% of the advertising accounts held by the Company over the course of her period of employment. The Company contended that Ms Brunner had agreed or otherwise decided that she could not perform the role as required and that she volunteered her resignation on the basis of three weeks’ notice.

[16] Despite that, the oral evidence led by Mr Paul Batchelor, who is the General Manager, was that whilst there were performance concerns in relation to Ms Brunner’s duties, those concerns were being managed within a particular process. That is, the performance concerns had not reached such a point at this time that they would have been the basis for a decision to dismiss Ms Brunner.

[17] Mr Batchelor contended that the decision to pay Ms Brunner in lieu was reached for reasons that it was reported that Ms Brunner had requested on the Monday 6 July 2015 that her personal effects be returned to her. The employer formed the view, it would appear, that such a request on its own signalled unambiguously that Ms Brunner did not intend to return to the workplace. The decision was therefore taken to “pay Ms Brunner out in lieu.” When Ms Brunner did not present for work on the Wednesday 8 July 2015, Mr Batchelor took this as fortifying the decision taken on the Monday.

Legislative provisions

[18] Section 385 of the Act provides as follows:

385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

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

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

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

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

[19] Section 386 of the Act provides relevantly as follows:

386 Meaning of dismissed

(1) A person has been dismissed if:

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

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

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

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

(b) the person was an employee:

(i) to whom a training arrangement applied; and

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

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

(c) the person was demoted in employment but:

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

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

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

Consideration

[20] Ms Brunner does not contend that she did not resign her employment on 3 July 2015. Rather, Ms Brunner argued that Mr Caralis’s conduct had been such that Ms Brunner was forced to resign her employment because she had no reasonable alternative.

[21] True it was under examination that Ms Brunner stated that that Mr Caralis’s conduct was such that it would have been “extremely stressful for [her] to go back into that environment”. But that is what Ms Brunner did, in effect, by stipulating a notice period of some three weeks duration.

[22] If Mr Caralis’s conduct had been so odious as to force Ms Brunner to resign, Ms Brunner would not have been in a position willingly to sustain the employment relationship for a further three weeks. That is, if Mr Caralis’s conduct had been as odious as Ms Brunner contends it was, then Ms Brunner would have resigned forthwith and not on an extended period of notice.

[23] It does not appear to me that Ms Brunner could reasonably have been “forced” to resign her position if she was capable of performing her duties and sustaining the employment relationship for a further three weeks.

[24] Such circumstances suggest to me that Ms Brunner had other alternative courses of action at her disposal at the time other than resignation.

[25] Ms Brunner’s letter of resignation as set out above was dated 3 July 2015, the day of the alleged abusive conversation with Mr Caralis (which forced Ms Brunner to resign). That letter of resignation is directed to Mr Caralis and is written in a reflective tone expressing gratitude. Ms Brunner contended that the email was composed in polite terms to protect her interests.

[26] Yet, it seems improbable to me that Ms Brunner would have been able to compose herself (within what she explained was the same hour in which Mr Caralis was said to have verbally abused her and caused her to break down) to such a degree that she could write in such terms to Mr Caralis directly.

[27] Further, it seems equally improbable to me that if Mr Caralis had conducted himself in the manner Ms Brunner contends that Ms Brunner would have made no reference at all to Mr Caralis’ conduct as being (at least) a contributing reason for her resignation (in the context in which Ms Brunner had set about articulating the reasons for her resignation).

[28] Ms Brunner’s letter of resignation therefore fortifies my earlier findings that Ms Brunner was not forced to resign her employment, as she alleges, because of the conduct of her employer.

[29] Ms Brunner also argues that she was dismissed on Monday 6 July 2015 by her employer and that this was made manifest by the request by Mr Mathison that she return her keys, phone and work clothes and by the fact that she was denied access to the workplace.

[30] As I have mentioned above, is because of these circumstances that Ms Brunner then requested the return of her personal items.

[31] But from the standpoint of the employer, that same action was evidence of Ms Brunner manifesting an intention to not return to the workplace following her resignation.

[32] Clearly, this is a juncture at which the parties fell into some confusion as to one another’s motivation. But when all the circumstances are considered, I think there is some substance to Ms Brunner’s apprehension that she had been dismissed during her notice period, when she had been requested to return her tools of trade, including her work shirts, and was not permitted entry to the employer’s premises. To a reasonable person in the street, such circumstances would reasonably imply that the employment relationship had ceased at that time at the initiative of the employer.

[33] On the other hand, I do not consider that the employer could have reasonably concluded that Ms Brunner would not return to work after having requested access to her personal items (on Monday 6 July 2015) without further enquiry being made of Ms Brunner as to her actual intentions, or to ascertain from Mr Mathison the precise circumstances under which Ms Brunner had her personal items returned to her. The employer was unable to rebut Ms Brunner’s claims about what was asked of her and how she was treated on Monday 6 July 2015 by Mr Mathison.

[34] Ms Brunner’s claims as to Mr Mathison’s actions were set out in some structured detail (see above). Further, Mr Mathison’s role was set out in Ms Brunner’s initial witness statement but he was not called by the employer to give evidence in respect of Ms Brunner’s claims. Ms Brunner’s claims, therefore, have substantial evidentiary weight in such circumstances.

[35] In my view then, Mr Brunner resigned her employment on 3 July 2015 on the basis of three weeks’ notice. She did so at her own volition. However, because the employer took the view that Ms Brunner would not return to the workplace on and from Monday 6 July 2015, and purportedly paid her one week’s notice in lieu of service, Ms Brunner’s employment must be taken ultimately to have come to an end at the initiative of the employer (and not by the earlier act of resignation).

[36] Because of my finding in this respect, Ms Brunner’s application therefore is based on a dismissal at the initiative of the employer for the purposes of s.385 of the Act, and is jurisdictionally competent.

[37] Because of this finding, I must now turn to consider the merits of Ms Brunner’s application for the purposes of s.387 of the Act.

Legislative provisions

[38] Section 387 of the Act sets out the criteria for considering whether a dismissal was harsh, unjust or unreasonable. Section 387 is as follows:

387 Criteria for considering harshness etc.

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

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

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

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

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

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

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

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

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

Consideration

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)

[39] Concerns had been expressed about Ms Brunner’s performance of her duties as a salesperson, but on the evidence of Mr Batchelor, those concerns were being managed through internal processes and had not reached a point where dismissal was contemplated by the employer. No other conduct or relevant performance issues were cited in respect of Ms Brunner’s employment.

[40] There was and can be no valid reason for Ms Brunner’s dismissal as a consequence.

[41] In actuality, the circumstances of this matter demonstrate that the employer formed the view that Ms Brunner had no intention of attending the workplace and fomented the dismissal by the act of paying her notice in lieu. In so doing the employer acted on mistaken apprehension as to Ms Brunner’s motivation.

Whether the person was notified of that reason

[42] In the circumstances, there cannot have been notification of the valid reason, and s.387(b) of the Act does not have relevant application.

Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[43] Section 387(c) of the Act does not have relevant application given the reasons for the dismissal as set out above.

Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal

[44] The circumstances of the matter did not give rise to the role of a support person in a manner anticipated by this subsection. As a consequence, my finding in this regard bears in neutral terms in respect of my wider considerations.

If the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

[45] Ms Brunner’s dismissal did not turn on an issue of unsatisfactory performance.

The degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal

[46] The business is of a very small scale, employing less than 10 employees in total. It appeared to me from the decision making of the employer that the employer operated on an informal basis, and did not have the resources to apply comprehensive processes to the relevant circumstances. There is some probability that the small size of the business did impact on the procedures by which the dismissal was effected.

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

[47] Despite its small size, the employer did employ a dedicated human resource/payroll person who performed functions in relation to employment matters. The absence of such resources cannot therefore be said to have necessarily impacted on the procedures followed in effecting the dismissal. I say this noting that the particular skill set, qualifications and experience of the relevant individual were not examined.

Any other matters that the FWC considers relevant.

[48] There are no other matters that I consider to be relevant to the dismissal. The employer for its part contended that it acted reasonably on the basis of a presumption it made about Ms Brunner’s intentions to continue to present in the workplace. But this presumption was not well-founded in the circumstances.

Conclusion

[49] Though the circumstances are novel, I can only conclude that Ms Brunner was harshly, unjustly and unreasonably dismissed from her employment on 6 July 2015 whereupon the employer took the decision to pay her one week’s notice in lieu of service (the amount of which was determined by a contractual term and not by reference to Ms Brunner’s stipulated notice period).

[50] Given this finally, I must now turn to consider the remedy under s.390 of the Act.

REMEDY

[51] I indicate firstly that there is no basis for considering that Ms Brunner should be reinstated to her position or to an alternative position with the employer. As I found above, Ms Brunner resigned her position on 3 July 2015 and did so at her own volition on the basis of three weeks’ notice. There is no utility in contemplating reinstating Ms Brunner to her position for what could only be an extremely short period of time before her employment would have come to an end on the basis of the terms of her resignation.

Compensation

[52] Section 392 of the Act provides as follows:

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)-(g) as below]

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

[53] There is no concern before me that the order that I may make in the circumstances will affect the viability of the employer’s enterprise, though I do note that evidence was adduced in the course of Mr Batchelor’s examination that the employer may not enjoy sound financials at this juncture.

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

[54] Ms Brunner was employed for a period of some 10 months only. This is not a strong indicator for making an award of compensation and in some circumstances can condition the anticipated period of continuing employment.

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

[55] Had Ms Brunner not been dismissed on 6 July 2015, her employment would have continued until 24 July 2015 (the date on which her three week period of notice expired).

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

[56] The circumstances of this matter do not necessitate consideration of efforts in mitigation of losses. This is so because of the very short period of time that is relevant (taking into regard the unexpected nature of the dismissal - as I have found it to be on Monday 6 July 2015 - and that Ms Brunner had been exposed to some medical difficulties as well).

(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

[57] There is nothing before me that suggest that Ms Brunner had any income in the 17 day period following her dismissal on 6 July 2015. Ms Brunner submitted that she had earned no income over that period.

(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

[58] There is no relevant consideration in this regard, given the circumstances.

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

[59] There are no relevant further considerations.

[60] Section 392(3) of the Act provides as follows:

Misconduct reduces amount

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

[61] There is no relevant misconduct on the part of Ms Brunner to which I should give consideration.

[62] Section 392(4) of the Act provides as follows:

Shock, distress etc. disregarded

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

[63] My order for compensation makes no allowance for the above proscribed matters or considerations.

[64] Section 392(5) of the Act provides as follows:

Compensation cap

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

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

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

[65] Section 392(6) of the Act provides as follows:

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

(a) the total amount of remuneration:

(i) received by the person; or

(ii) to which the person was entitled;

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

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

[66] The order that I propose to make does not need to take into account the statutory cap.

[67] Section 393 of the Act provides as follows:

393 Monetary orders may be in instalments

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

[68] The employer has made no application to pay any amount I may order to be paid as compensation in instalments. Notwithstanding that, I will indicate that the employer is at liberty to request that the order for compensation that I will make be discharged by instalments. Any such application must be made within three calendar days of the issuance of the order.

CONCLUSION IN RELATION TO REMEDY

[69] The employer must pay to Ms Brunner the balance of any notice not paid in respect of the (three week) period of notice, which was the period of time Ms Brunner would have continued to work for the employer but for her dismissal. That period of time is taken to be from Friday 3 July 2015 to Friday 24 July 2015.

[70] An order to this effect will follow. The amount owing must be paid to Ms Brunner (preferably by direct funds transfer to her usual bank account) within 14 calendar days of the date of this decision and order.

[71] The parties may revert to the Commission within seven days in the event that there is an inability to determine the amount owing to Ms Brunner.

SENIOR DEPUTY PRESIDENT

Appearances:

L. Brunner, applicant.

A. Millar of Australian Dismissal Services, for the respondent.

Hearing details:

2015.

Brisbane:

November 11

 1   Transcript of proceedings dated 11 November 2015 at PN169.

 2   Transcript of proceedings dated 11 November 2015 at PN181.

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