Ms Marie Kane v South Eastern Group of Melbourne Legacy

[2011] FWA 1680

Note: An appeal pursuant to s.604 (C2011/3954) was lodged against this decision - refer to Full Bench decision dated 21 July 2011 [[2011] FWAFB 4651] for result of appeal.

[2011] FWA 1680

FAIR WORK AUSTRALIA

DECISION

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

Ms Marie Kane
v
South Eastern Group of Melbourne Legacy
(U2010/13403)

COMMISSIONER ROE MELBOURNE, 18 MARCH 2011

Termination of employment –summary dismissal- abandonment of employment.

[1] The matter arises from an application filed on 19 October 2010 under s 394 of the Fair Work Act 2009 (the Act) by Ms Marie Kane (the Applicant) for relief in respect to the termination of her employment from South Eastern Legacy trading as South Eastern Group of Melbourne Legacy Inc (the Respondent).

[2] On 22 December 2010 Commissioner Smith granted an extension of time for the making of the Application. 1 He found that the termination letter was dated 14 September 2010 and that it was received by the Applicant on 23 September 2010.

[3] Following an unsuccessful conciliation conference the matter proceeded to arbitration. The parties elected to proceed to a hearing on 10 March 2011.

[4] At the hearing the Applicant was represented by Mr Gary Dircks and the Respondent was represented by Mr Darryl James. Permission was granted for the representation. The Applicant gave evidence on her own behalf. Ms Andrea McConachy, Office Manager/Secretary for the Respondent and Mr Keith Bagley, Honorary President of the Respondent gave evidence for the Respondent.

Evidence

[5] The Applicant was employed as an Administrative Assistant with the Respondent for more than 13 years from 1 July 1997 until September 2010.

[6] The Applicant was employed on a part time basis working 18 hours per week. The Applicant worked regularly for six hours on each Monday, Wednesday and Friday. The Respondent accepts that additional hours were regularly worked. The Applicant says that up to six additional hours were regularly worked. The Respondent says that the number of additional hours would only average one or two per week.

[7] The Applicant’s usual income prior to the dismissal excluding superannuation was $23 per hour. Prior to 1 July 2010 the minimum hours worked per week were 18. Assuming one additional hour per week which is the minimum amount agreed between the Applicant and the Respondent the weekly wage excluding superannuation was $437 per week.

[8] From 1997 until 3 May 2010 the Respondent had only one paid employee which was the Applicant.

[9] In the last year or so of her employment the Applicant had some health problems and at least two periods of extended sick leave. She fully utilised her paid personal leave entitlements. She was away on sick leave from early March 2010 until about 10 April 2010. She provided the employer with advice from her doctor that she was fit to return to work on about 10 April 2010 but Mr Bill Rogers on behalf of the Respondent advised the Applicant that she could not return to work unless the Respondent was provided with clearance from a specialist medical practitioner and with further details about the nature of the illness. It was a further three weeks, during which the Applicant used remaining sick leave, annual leave and some unpaid leave, before the Applicant was able to obtain a specialist medical advice and was allowed to return to work.

[10] It was during this period of the Applicant’s absence that on 19 April 2010 the Executive of the Respondent met and determined to appoint a second employee from 3 May 2010 in the role of Office Administrator. Previously the role of Group Secretary had been performed by a member of the organisation on an honorary basis. It was determined that the Office Administrator would now perform this role. The Applicant was advised of this change by letter dated 23 April 2010.

[11] Ms Andrea McConachy was employed on a temporary basis to do the Applicant’s job whilst she was on sick leave. She was advised of her appointment to the newly created job and started in that new job prior to the Applicant returning to work. The Applicant was told by letter that she would in future have to report to Ms McConachy.

[12] From July 1 2010 the Applicant’s hours were reduced to 15 per week. The Applicant was advised on 2 August 2010 by Mr Bagley that the hours would be further reduced to 9 per week from 1 September 2010.

[13] There was some emphasis and conflict during the proceedings in respect to the duties expected of the Applicant. A number of different job descriptions were submitted in evidence. It is not necessary in my view to resolve the question of what was the official job description.

[14] It was not in contention that some of the duties formerly performed by the Applicant were taken over and performed by Ms McConachy. I am satisfied that the reduction in the Applicant’s working hours was a direct result of this. The Applicant gave evidence that Ms McConachy took over most of her previous duties and that the Applicant’s previous duties formed a significant part of Ms McConachy’s new job. The Applicant referred to the following duties which she had previously performed which were taken over by Ms McConachy: accounts, mail, meeting organisation and minutes, management of and replies to correspondence, filing and receipt of monies. I accept this evidence. The Respondent gave evidence that the main role of the Applicant always related to support for legacy wives and widows and that this function was retained by the Applicant. It is not in contention that the legacy wives and widows support was a part of the role of the Applicant. Ms McConachy and Mr Bagley accept that the previous roles the Applicant had in attending and supporting executive meetings was transferred to Ms McConachy.

[15] Having reviewed all the evidence I am satisfied that Ms McConachy did in fact take over the majority of the functions previously performed by the Applicant and that the functions previously performed by the Applicant constituted a significant proportion of Ms McConachy’s new job. I am satisfied that the Applicant had previously performed a significant proportion of the administrative and office management functions of the Respondent’s organisation. Other functions were performed on a volunteer basis by members of the organisation.

[16] The Respondent has not replaced the Applicant during the six months since the dismissal. The Respondent has not advertised for a replacement person. The Respondent says that the position is not redundant. The actions of the Respondent in my view add weight to my conclusion that Ms McConachy did take over much of the work previously performed by the Applicant.

[17] The Applicant was aware that the Respondent was considering shifting the role of Secretary of the organisation from an honorary role to a paid role due to the pending retirement of the Honorary Secretary and the ageing of the membership of the organisation. However, there was no consultation with the Applicant concerning the significant changes in the organisation which occurred and which affected her employment. The Applicant gave evidence that the former Honorary Secretary, Neville Wilson, had indicated in early 2010 that she would be an appropriate person to take on the Secretary role. The Respondent gave evidence that the Applicant was never considered for the role and was not considered suitably qualified for the role.

[18] There was no evidence of any concerns or problems with the performance of the Applicant. Mr Bagley did not have a high opinion of the Applicant’s capacity and hence did not regard her as suitable for appointment to the Secretary role. However, Mr Bagley accepted that the Applicant performed her role as Administrative Assistant adequately.

[19] On 16 June 2010 the Applicant applied for long service leave for the period 5 July 2010 until 4 October 2010. The application was not considered until the next Executive Committee meeting which was held on 12 July 2010. The Applicant was of the view that application for leave should have been considered by a member’s general meeting held at the end of June. However, I accept the evidence of the Respondent that it was not normal for personnel matters to be dealt with at general members meetings. I also accept that the Applicant would have been aware that the Executive meetings were on 14 June 2010, 12 July 2010 and then 9 August. It is also clear that the Applicant was aware that an application for long service leave would have to approved by a meeting of the organisation.

[20] The response of the Executive committee was provided to the Applicant on 15 July and it stated that her request for long service leave was granted but that the timing was not appropriate. The Applicant was advised that:

“the committee has recommended that your leave commence after Legacy Badge week. After careful consideration it was recommended that your leave commence on Monday 14 September, returning to work on Monday 14 December 2010”. 2

[21] Legacy Badge Week was from 29 August to 4 September 2010.

[22] On 19 July 2010 the Applicant advised that she had made plans for the middle of August and would like to start her leave on 9 August which was prior to Badge Week. The Applicant expressed the view that now Ms McConachy was employed she could handle matters whilst she was away. 3

[23] On 23 July 2010 the Applicant discussed the matter of her leave with Ms McConachy. The Applicant and Ms McConachy agree that in this discussion the Applicant advised that she had made arrangements to go to Queensland in mid August and the possibility of taking leave without pay was raised by the Applicant in this discussion. Ms McConachy says that she told the Applicant that leave without pay would require Executive Committee approval.

[24] On 31 July 2010 Mr Bagley sent an email reply to the request of 19 July 2010. He advised that the request would be considered at the Executive meeting on 9 August. Mr Bagley then wrote:

“Personally, I am more than a bit perturbed that a person with your 13 years of Legacy experience would even consider taking any type of leave of absence with the exception of sick leave, leading into the most important period of Legacy’s existence, the fund raising Badge Appeal Week.” 4

Mr Bagley then requested that the Applicant

“review all your Long Service leave activities and advise Ms McConachy of your revised start date, end date and a email and mobile telephone contact address whilst on leave...It may well be necessary for a Leave Without Pay Application on your part to meet your revised requirements... I will await your reply through the Secretary for consideration by the Executive Committee.” 5

[25] Various submissions were made about the meaning of the correspondence of 31 July 2010. After considering those submissions and the context I am satisfied that the meaning of the email of 31 July 2010 was clear and unambiguous. The email very clearly reiterated the position of the Respondent that leave during legacy week was not acceptable. The email requested the Applicant to reconsider the starting and finishing dates for her leave in this context. The email made it clear that if leave without pay was proposed as part of her leave plans then this would need to be subject to application and approval. The email made it clear that if the revised proposed dates for leave were provided to Ms McConachy they would then be considered by the Executive Committee on 9 August 2010.

[26] The Respondent submitted that the reference to leave without pay was a reference to the possibility that some leave without pay might be taken prior to the commencement of Legacy Badge Week on 29 August. Long Service Leave would then apply from after Legacy Badge Week until the last day of work before the Christmas shut down of the office. However, the Respondent never contemplated that leave would include the period of Badge Week as the Respondent’s rejection of this had been made clear on a number of occasions. In all the circumstances I accept that this is the most plausible explanation which is consistent with the remainder of the content of the 31 July 2010 email and in the context of the other communications which were made available to me.

[27] On 2 August 2010 there was a conversation between the Applicant and Mr Bagley. In that conversation Mr Bagley advised the Applicant that her hours were to be reduced to 9 per week from 1 September 2010. Mr Bagley also advised the Applicant that he would understand it if she was to look for other work. Mr Bagley also reiterated what was in the correspondence of 31 July 2010 about resubmitting her proposed dates for the consideration of the Executive meeting on 9 August. The Applicant says that she got the impression that her proposed dates would be approved. However, the Applicant does not suggest that Mr Bagley said that the dates would be approved.

[28] On Tuesday 10 August 2010 Mr Bagley wrote to the Applicant advising her of the outcome of the Executive consideration of her proposed leave dates and advised that:

“the earliest date convenient to take your Long Service Leave (LSL) will be at the conclusion of Legacy Badge week. As you are aware this event is most important to Legacy and we appreciate you being there to help. This would then mean that your LSL would commence on Monday 7 September, and your return to work will be Monday 6 December 2010.” 6

[29] There was no evidence of any application for unpaid leave being made either by email or by post. There is no evidence that the Applicant provided any details to the employer by email or verbally of the dates for which she sought unpaid leave. The evidence suggests that unpaid leave was only ever discussed as a possible option. I do not accept the submissions on behalf of the Applicant that the Applicant acted reasonably on the basis that she believed that unpaid leave had been approved and that it was understood by the Respondent that this would include Monday 16 August and Badge Week.

[30] On Wednesday 11 August 2010 the Applicant sent an email to Mr Bagley in which she says “I have just been shown a copy of the letter sent to my home”. 7 I raised in proceedings that this was a clear reference to the letter of August 10 which advised that the Applicant was required for duty in Legacy Badge week and that Long Service Leave was approved to commence on Monday 7 September. Mr Dircks for the Applicant accepted that this was the case.

[31] In her email of 11 August the Applicant also stated that she had made plans to leave on Sunday and concluded as follows:

“My apologies for not being there for Badge Week this year. I will not be working on Friday. I will come in on Friday sometimes during the day to pick up my payment cheque.” 8

[32] On 13 August 2010 at 8.41am Mr Bagley sent an email to the Applicant at her home and her office address reaffirming that the leave had not been approved to commence until early September and that she may be dismissed if she does not turn up for work on 16 August 2010. 9 There was no evidence given by the Applicant that confirmed that she read this email. The Applicant says that her home email was not working at the time.

[33] Also on 13 August 2010 a letter from Mr Bagley was mailed to the Applicant in which he stated that the Applicant was required to attend work on 16 August 2010. 10 The letter also advised that no leave has been approved and that failure to attend work would be considered a breach of employment conditions and “we will have no alternative but to consider dismissal”.

[34] This letter was also handed to the Applicant by Ms McConachy when the Applicant came into the office on 13 August 2010. Mr Bagley and Ms McConachy gave evidence that the letter was also emailed. The Applicant accepts that she was handed the letter in an envelope by Ms McConachy and that Ms McConachy strongly urged her to read the letter at that time. Ms McConachy says that she also told the Applicant that she was required to come to work on Monday but the Applicant denies this.

[35] During the proceedings the Applicant gave evidence that she did not open the letter at the time nor when she returned home. She gave evidence that she went to Queensland on 15 August and did not take the letter with her and that she only read the letter after she received the termination letter dated 14 September in late September. However, in her witness statement the Applicant says immediately after referring to the events of 11 and 12 August:

“I then received the letter of Friday 13 August 2010. 11 I felt it was unduly threatening. I couldn’t reasonably cancel my plans and report to work on Monday 16 August 2010.”12

[36] I find the evidence that the Applicant did not open the letter or was not aware of its contents until six weeks after it was given to her highly implausible given all of the circumstances. I prefer her witness statement which clearly implies that the letter was read and that its contents were understood before the Applicant was required to return to work on 16 August.

[37] Neither the Applicant nor the Respondent made any attempts to contact each other between 13 August 2010 and 14 September 2010 when the Respondent mailed a dismissal letter to the Applicant.

[38] It is not contested that 90% of the income of the Respondent comes from the activities of Badge Week. It is not contested that the Applicant provided some support and some additional volunteer time and activity during Badge Week during the years of her employment prior to 2010. It is contended by the Applicant that in previous years there was no other paid employee and that therefore in 2010 Ms McConachy could have done the work that she had done in previous years.

[39] Having considered all of the evidence I believe that Badge Week was seen by the Respondent as so central to its activities that it was regarded as an act of betrayal for an employee to not participate in Badge Week unless they were prevented from doing so due to illness. In all of the circumstances this attitude was reasonable. I come to this conclusion even though from a practical point of view I accept the evidence of the Applicant that her involvement in Badge Week 2010 was not critical to the success of Badge Week and that Ms McConachy could have, and probably did, perform the functions she had carried out in previous years.

[40] The Applicant gave evidence that the reason she wished to take long service leave was because her medical condition was troubling her but she did not tell her employer that this was the reason at any stage. The Applicant says that she did not tell the employer about the medical reason because of the approach taken by the employer on the previous occasion she had been off due to ill health. On that occasion the employer had unreasonably delayed her return to work by insisting on a specialist medical report. I am satisfied that her medical condition was a motivating factor in the Applicant seeking long service leave and I accept the validity of the reasons why the Applicant says she did not tell the employer about this. However, the fact remains that the employer was unaware of the medical reason and hence the employer could not be expected to take this into account in making its decisions about the application for leave.

[41] The Applicant gave evidence that she had made no bookings in Queensland prior to her departure. The Applicant does not suggest that she gave the Respondent any reasons why the short delay in taking of her leave would create significant problems for her. The Applicant had originally suggested that she wanted to attend a wedding but that wedding had been postponed until 2011 and she advised the Respondent of that postponement prior to the final decisions to refuse leave commencing before to September 7 2010.

Small business code.

[42] I am satisfied that the dismissal was a dismissal at the initiative of the employer. In all the circumstances it cannot be regarded as a resignation or abandonment or repudiation at the initiative of the Applicant. The Applicant made it abundantly clear at all times that she wished to continue the employment relationship and to return to work. There was a disagreement between the Respondent and the Applicant about the timing of the taking of leave to which the Applicant had an entitlement. The Respondent made it clear that it intended to dismiss the Applicant if she engaged in certain conduct. The Applicant then engaged in that conduct and was dismissed.

[43] This is a case of dismissal without notice. The only provision in the small business code which is relevant is the section headed “summary dismissal”. Under this section I must be satisfied that “the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal”. The dismissal does not come within the examples of serious misconduct given in the code as there is no suggestion of theft, fraud, violence or serious breaches of occupational health and safety.

[44] I am satisfied that in these circumstances I must consider whether or not there was serious misconduct. If I am satisfied that there was serious misconduct then the Small Business Code has been complied with.

[45] The Fair Work Regulations 2009 define serious misconduct for the purposes of the Act.

“1.07 Meaning of serious misconduct

(1) For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.

(2) For subregulation (1), conduct that is serious misconduct includes both of the following:

(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;

(b) conduct that causes serious and imminent risk to:

(i) the health or safety of a person; or

(ii) the reputation, viability or profitability of the employer’s business.

(3) For subregulation (1), conduct that is serious misconduct includes each of the following:

(a) the employee, in the course of the employee’s employment, engaging in:

(i) theft; or

(ii) fraud; or

(iii) assault;

(b) the employee being intoxicated at work;

(c) the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.

(4) Subregulation (3) does not apply if the employee is able to show that, in the circumstances, the conduct engaged in by the employee was not conduct that made employment in the period of notice unreasonable.”

[46] There is nothing in the circumstances of this case which falls within Section (2) of the above regulation. It is clear in my view that the Applicant in this case refused to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment. The instruction in this case was contained in the letters of 10 and 13 August 2010. Those instructions were that the Applicant was to attend work on 16 August 2010 and was refused leave during Badge Week. The Applicant did not attend for work on 16 August 2010 nor during Badge Week. The Applicant acknowledged that she received the letter of 10 August 2010 on 11 August 2010. For reasons outlined earlier I am satisfied that the Applicant received the letter of 13 August 2010 on that day and was aware of the contents of the letter prior to 16 August 2010.

[47] The instruction was reasonable given the central importance of Badge Week to the operations of the Respondent.

[48] The instruction was also reasonable in that the expectation of the Applicant that she had a right to take long service leave at the time of her choosing was unreasonable.

[49] In a small organisation it is reasonable for the employer to expect a significant period of notice prior to the taking of long service leave. I am satisfied that the Applicant knew that applications for significant periods of leave had to be approved by the Executive committee and there is nothing unreasonable about this practice.

[50] In all of the circumstances the Respondent was not unreasonably tardy in considering an application for long service leave.

[51] I do not read the correspondence as a requirement by the employer that the Applicant must take long service leave at a specified time. If it was such an instruction then it would require sufficient notice as set out in the relevant Victorian long service leave legislation. Rather the correspondence constituted an agreement to allow long service leave which had been applied for by the Applicant but specifying that certain dates would not be acceptable. I do not see this as unreasonable or contrary to the legislation. It was open to the Applicant to say that she did not wish to take long service leave in these circumstances. The Applicant objected to the initial decision of the Respondent and the Respondent then allowed for a revised application to be made and considered that application at the first available meeting and advised the Applicant of the outcome the day after that meeting.

[52] However, failure to carry out a lawful and reasonable instruction is not serious misconduct if the employee is able to show that, in the circumstances, the conduct was not conduct that made employment in the period of notice unreasonable.

[53] I am satisfied that the Respondent employer knew that it was likely that the Applicant would not attend for work on 16 August 2010 or during Badge Week. I am also satisfied that a number of unreasonable actions by the Respondent contributed to this decision by the Applicant and made the decision to disobey the instruction understandable. These unreasonable actions of the Respondent included:

• Introducing significant workplace changes which had a major negative effect on the Applicant without the consultation required under the relevant Award.



• Halving the income and working hours of the Applicant without appropriate consultation.



• Failing to give the Applicant who had been the sole employee for 13 years and who had performed the administrative functions satisfactorily an opportunity to apply for the new administrative position.



• Failing to consider the Applicant for the new position.



• Allocating a significant proportion of the Applicant’s duties to the new employee without consultation.



• Making major changes including appointing the new employee and reallocating duties whilst the Applicant was on sick leave.



• Requiring the Applicant to provide a specialist medical report prior to returning to duty in circumstances where she had a clearance from her treating doctor. In the circumstances this appears to have been an unreasonable requirement.

[54] I am also satisfied that the Respondent was aware that these actions had harmed the interests of the Applicant. In my view it was understandable that the Applicant felt that the Respondent no longer valued her contribution and was trying to squeeze her out.

[55] In these circumstances the actions of the Applicant were not a repudiation of her employment contract. The Respondent knew that the Applicant intended to return to work at the end of the period of approved leave (7 September to 6 December 2010) notwithstanding that there were three weeks of non-approved leave prior to the commencement of the period of approved leave (16 August to 4 September).

[56] The Applicant had been a trusted and loyal employee for 13 years prior to this incident. There was no suggestion that there had been any prior occasion on which the Applicant had refused to follow a reasonable and lawful instruction.

[57] I conclude that the Applicant’s refusal to carry out a lawful and reasonable instruction in these circumstances was not serious misconduct. I also conclude that the employer did not have reasonable grounds to regard it as serious misconduct.

[58] Having determined that the actions of the Applicant did not constitute serious misconduct I conclude that the Small Business Code has not been followed. I must now consider whether or not the termination was harsh, unjust or unreasonable.

Was there a valid reason for dismissal.

[59] For the reasons discussed earlier the Applicant failed to carry out a lawful and reasonable instruction. The failure to do so was deliberate and significant although it did not have any significant negative impact on the Respondent’s business.

[60] I consider that the failure to carry out a lawful and reasonable instruction in these circumstances constitutes a valid reason for dismissal with notice. The unreasonable actions of the employer discussed earlier may partly explain the behaviour of the Applicant but they do not change the fact that the Applicant deliberately failed to carry out a lawful and reasonable instruction in circumstances where she was aware that it could lead to termination of her employment. Failure to attend to regularly rostered work duties when reasonably instructed to do so without good reason is a serious matter. For the reasons discussed earlier there was no valid reason for summary dismissal without notice.

Notification of reasons for dismissal and opportunity to respond.

[61] The Applicant was given a clear warning that dismissal was a likely outcome should she disobey the instruction to attend for duty on 16 August 2010 and during Badge Week. The Applicant was notified of the reasons for dismissal in the correspondence of 14 September 2010. This notification was not given prior to dismissal actually occurring. In this respect the Applicant was not given notification prior to the dismissal being carried out and was not given an opportunity to respond.

Was the Applicant refused a support person?

[62] There was no opportunity to respond to the dismissal and hence there was no opportunity for the Applicant to have access to a support person. There was no unreasonable refusal to allow a support person as there was no discussion.

Unsatisfactory performance?

[63] There was no warning concerning unsatisfactory performance.

Was the size of the employer’s undertaking and or the lack of human resource management specialists likely to impact on the procedures followed?

[64] The Respondent is a very small business and it does not have access to human resource management specialists. I believe that this did have an impact on the procedures followed. However, the size of the employer and the lack of human resource management specialists does not mean that an employee does not have the right to a fair go. The Applicant was still entitled to fair treatment including notice and an opportunity to respond.

Other relevant matters.

[65] I regard the thirteen years of loyal and satisfactory performance by the Applicant as a relevant factor. I also regard the illness of the Applicant and her desire for time off work in circumstances where it was understandable that she did not advise her employer that this was a reason why she wanted the time off work as a relevant factor.

Was the dismissal harsh, unjust or unreasonable?

[66] I am satisfied that the Applicant did refuse to carry out a reasonable instruction. This action was serious and was a valid reason for dismissal. However, I consider that the dismissal was harsh and unreasonable primarily because of the lack of appropriate notice. However, I also consider the following factors of some relevance:

• the lack of an adequate opportunity to respond,



• the failure by the Respondent to take adequate account of the long and dedicated service of the Applicant,



• the impact on the future circumstances of the Applicant who considering her age and that she is suffering from poor health will have difficulties obtaining future employment, and



• the unreasonable and harmful actions of the Respondent towards the Applicant which in part explain but do not excuse the Applicant’s actions.

Remedy

[67] The Applicant does not seek reinstatement. In all of the circumstances I do not consider reinstatement would be appropriate or practical. The relationship of trust is not able to be restored. In all of the circumstances I find that an order for compensation is appropriate.

[68] The factors I take into consideration in determining compensation are:

• The uncontested evidence of the Applicant that she has been unemployed since the dismissal. The Applicant has been seeking further employment but ill health has made that difficult. I am satisfied that the Applicant has made all reasonable efforts to mitigate her loss.



• The fact that the Applicant did not receive five week’s notice to which she would have been entitled if the dismissal had not been a summary dismissal. I have found that there was no proper basis for summary dismissal.



• The Applicant was employed for 13 years. I find that the length of service is a relevant consideration in the circumstances of this case.



• Given that the Respondent had restructured the Applicant’s job I consider that this would affect the likely length of future employment. I judge that the Applicant would have continued in employment for at least a further six months.



• The Respondent is a small employer but there is no evidence or reason to believe that any order I might make would affect the viability of the Respondent.



• The Applicant’s own behaviour, did contribute to the situation in which she found herself. The conduct of the Applicant must be taken into account.



• The Applicant is unlikely to earn significant income between the hearing and the making of this order nor between the time of the making of this order and the payment of any compensation.

[69] I have therefore made no deductions for earnings since the dismissal, for likely earnings during the period between the hearing and the payment of any compensation, for a failure to exhibit adequate efforts to mitigate loss or for length of service. I have made allowance for contingencies because there is some uncertainty about the question of earnings in the period between the dismissal and the payment of any compensation. I have made significant deduction because of the misconduct of the Applicant.

[70] Taking these factors into consideration and the principle of a fair go all round I order a payment of seven weeks compensation. This includes allowance for the five week period of notice. The uncontested evidence was that the earnings of the Applicant prior to the change in hours was $23 per hour excluding superannuation and $24.38 inclusive of superannuation. In my view it is appropriate in the circumstances to base the compensation payment on the number of weekly hours normally worked over most of the six months prior to dismissal. The Applicant worked an average of at least 19 hours per week prior to 1 July 2010. Therefore, the amount of compensation I deem appropriate is $24.38 x 19 x 7 = $3,242.54, less taxation as required by law. The amount should be paid within two weeks of this decision. The Respondent is at liberty to apply for a variation to this time period.

COMMISSIONER

Appearances:

Mr Gary Dircks for the Applicant.

Mr Darryl James for the Respondent.

Hearing details:

2011
Melbourne
10 March

 1   Print PR505384.

 2   Exhibit K1, Attachment MK4.

 3   Exhibit K1, Attachment MK5.

 4   Exhibit K1, Attachment MK6.

 5   Exhibit K1, Attachment MK6.

 6   Exhibit SEL2, Attachment KB3.

 7   Exhibit K1, Attachment MK7.

 8   Exhibit K1, Attachment MK7.

 9   Exhibit SEL3.

 10   Exhibit K1, Attachment MK8.

 11   Exhibit K1, Attachment MK8.

 12   Exhibit K1 at paragraphs 67-70.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR507651>