Ms Peta Froeschl-Avis v McNevins (Cesnock) Pty Ltd T/A McNevins Maryborough Motel

[2014] FWC 674

[2014] FWC 674

FAIR WORK COMMISSION

DECISION

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

Ms Peta Froeschl-Avis
v
McNevins (Cesnock) Pty Ltd T/A McNevins Maryborough Motel
(U2013/14486)

COMMISSIONER SIMPSON BRISBANE, 11 FEBRUARY 2014

Application for relief from unfair dismissal - Jurisdictional objection that Applicant resigned - Jurisdictional objection dismissed - Dismissal unfair - Compensation Ordered.

[1] The following Decision, now edited, was issued during proceedings on 29 January 2014.

[2] On 15 October 2013, Ms Peta Froeschl-Avis, the applicant, made an application under s.394 of the Fair Work Act 2009 for unfair dismissal remedy against McNevins Maryborough Motel, who is the respondent. The applicant stated that she commenced employment with the respondent on 25 August 2012 and asserted that she had been summarily terminated on 26 September 2013.

[3] On 30 October 2013, a form F3 response was filed on behalf of the respondent by James Bowden, the manager of the respondent at the time of termination. The response stated that the applicant resigned her position on 25 September 2013, which was the day before the applicant claimed to be terminated. The manner in which this matter has come on for determination has been somewhat unusual and I will provide a brief summary of that background.

[4] On 31 October, email correspondence was received from Ms Kim Radford and Mr James Bowden, the Manager of the motel at the time, objecting to the application on the basis that it was frivolous and out of time. Further email correspondence received from those two managers on that day made complaints about the handling of the matter. There was also some further correspondence on 1 November raising issues about the way the matter was being handled by the unfair dismissal team (the UDT) in the Fair Work Commission.

[5] Part of that seemed to emanate from a view that, firstly, the application was frivolous on the basis that it was claimed the applicant had resigned and, secondly, that the matter was out of time. The UDT made some efforts to attempt to explain the process to Mr Bowden and Ms Radford via email correspondence. There were some further emails sent from the representatives for the respondent, one on 10 November indicating that they were leaving the business in 30 days' time. A further email on 19 November from the manager foreshadowed a complaint about the matter proceeding and also indicating they had no obligation to participate in the matter.

[6] On the same day, I issued a notice of listing for a directions conference to be held on 2 December. On 22 November, a form 6 application for costs was filed on behalf of the respondent. On 25 November 2013, email correspondence was forwarded by my associate confirming an indication from the respondents that they no longer pressed the out of time objection. It is apparent from the material that on the applicant's version of events, had the termination occurred on 26 September, the application was filed within the 21-day time limit. On the respondent's version, if it were accepted the applicant resigned on 25 September, the application would be one day out of time.

[7] At the directions conference on 2 December, I issued directions for the filing of statements and submissions on both the jurisdictional objection concerning resignation and also the substantive matter about whether the dismissal was unfair. A conference was to be held on 11 December. Statements were filed for the applicant from herself and her mother, Christine Froeschl, and from the respondent two statutory declarations were filed, one from Leigh Anne Rickard and one from Cecil Charles Cully.

[8] Prior to the scheduled determinative conference on 11 December, advice was provided via the respondent through Ms McNevin, the General Manager, that Mr Bowden and Mr Radford had ceased to be the Managers of the respondent and were no longer engaged by the respondent. Around 4 pm on 10 December, Ms McNevin sought an adjournment of the conference. Further advice was provided explaining the circumstances for that request and the adjournment was granted, and the matter was rescheduled for 23 December. That date was also vacated on the basis that the applicant was rostered to work in new employment scheduled for that time. On that basis, the matter was again re-listed for 29 January.

[9] That has dealt with all the matters leading up to the conference today. The fundamental difficulty for the respondent in now dealing with this application is that the two potential witnesses in its case that could have given direct evidence going to the central dispute in this matter as to whether Ms Froeschl-Avis did or did not resign from her employment on 25 September, have not been available to give evidence today.

[10] I do note that the two managers, when they were still employed by the respondent and either had carriage of the matter, arranged on 6 December for the filing of statutory declarations for two employees who were not direct witnesses to the meeting but did not in fact file statements or statutory declarations themselves as they could have done in accordance with my directions. Perhaps they thought at the time they did not need to.

[11] I am unsure as to the reasons why they did not. Perhaps it was also in connection with the fact that they knew that their employment was coming to an end. In any event, before the matter could come on for determination, they ceased to be employed. The respondent has indicated, through Ms McNevin today, that they have sought to make contact with these two former managers, but they have been unable to get them to give evidence today.

[12] The material filed by the former managers prior to their ending their employment is consistent with that of Ms Froeschl-Avis, in that Ms Froeschl-Avis said the reasons given for her dismissal by her employer were that she worked too slowly and that she came to work in a hung-over state. Also that her mood had changed. While the two managers have denied in the material filed earlier that there was a termination, the material filed by the employer prior to the two managers leaving employment made reference to all these issues.

[13] The F3 employer response form filed included the claim that Ms Froeschl-Avis had admitted to being hung-over on more than one occasion. Ms Froeschl-Avis has said that on one occasion a co-worker, not a manager or supervisor, had got angry with her about the speed that she was working, and that was in her written material. She also said in written material provided that she conceded that her mood had changed. She said that she was the youngest employee and was treated rudely by other staff. She claimed she was being singled out. She also said that she had received bad news about a health issue. The employer F3 response filed said that Ms Froeschl-Avis did start to change, but that the employer had not been advised by her about any health issue or that she felt singled out.

[14] The direct evidence left for me to be able to consider for the respondent's case is the evidence of Ms Rickard and Mr Cully. Both statutory declarations are indicative in my view of Ms Froeschl-Avis indicating to those employees an intention to resign, but they did not and could not give direct evidence as to whether she actually did resign. I note there is a slight variance in the language used by the two employees for the respondent in the statutory declarations.

[15] This evidence needs to be weighed against the direct evidence of Ms Froeschl-Avis herself. It was her evidence that on 25 September last year, she was having, as she said, a really bad day. She went to Ms Rickard and claimed to say, in her evidence, "I am not sure if I should work here anymore." Both Ms Rickard and Ms Froeschl-Avis are consistent in saying that Ms Rickard advised her to go to the office for the matter to be discussed with the manager.

[16] Their evidence varies to the extent that the respondent claims she was going to resign and in Ms Rickard's case she also claims that she later spoke to Mr Bowden after Ms Froeschl-Avis had been to the office and Mr Bowden had told her that Ms Froeschl-Avis had resigned, whereas Ms Froeschl-Avis's evidence is more to the effect that she was considering whether she should resign prior to the meeting. Her evidence is squarely that she denies tendering her resignation on the afternoon of 25 September.

[17] Ms Froeschl-Avis's email, going back to 29 November, said that on 25 September she attended the laundry to speak to Leigh Rickard and said, "I don't think I should work here anymore." That is fairly consistent with the oral evidence she gave today. The F3 employer response claims that she came to the office and said the words, "I can't work here anymore." That was the material that was supplied by Mr Bowden, but obviously, as I have already said, he has not been here to give direct evidence. On the F3 employer response, that language was taken to have been a resignation. I have no direct evidence to support the claim.

[18] Ms Froeschl-Avis's version is that she went to the office and said words to the effect, "I am not sure if I should work here anymore. Everyone is being bitchy to me." Ms Froeschl-Avis said, "James replied that they were getting angry because they were doing more work than me for the same pay." Ms Froeschl-Avis said that, "James then said that they don't like sacking people; that I should go home," and they would call her in the morning. The F3 employer response also said that Ms Froeschl-Avis was told that, "We" - and I took that in the employer response to be a reference to the two managers - "wanted to have a meeting and she seemed to be acting differently to her normal self."

[19] In terms of the evidence of the following day, Ms Froeschl-Avis, in her email on 25 November provided to the tribunal, said that she did not receive a phone call the next morning so she rang work and spoke to Kim. She said she asked what was going on and Kim said that she would talk to James and get back to her. Ms Froeschl-Avis said that Kim rang back shortly after that and said words to the effect, "We don't want you working here anymore." Ms Froeschl-Avis said she asked why and Kim said because she worked too slow and she was hung over on one occasion. Ms Froeschl-Avis claimed that she received a phone call telling her that she was sacked and not to return to work. She claimed that she was not given the opportunity to attend a meeting, as was suggested in the employer's F3 material.

[20] The F3 employer response said that Ms Froeschl-Avis phoned work on Thursday morning, 26 September. The employer response claimed that Mr Bowden said he would call her back. It was claimed that when he called her back, she said that she was "stressing" and when she was asked why, she said it was about her job. It was claimed that she was told she resigned the afternoon before, when she finished her shift. It is claimed she then said she was going to make an unfair dismissal claim.

[21] Ms Froeschl-Avis's oral evidence today has been fairly consistent with her earlier written material filed. On the basis of the evidence, I cannot be satisfied that Ms Froeschl-Avis did resign as has been claimed by the respondent. I come back to my earlier point that the respondent's case is in a very difficult position, in that it has been unable to call as witnesses the only two persons who could have given direct evidence. The respondent's witnesses indirect evidence, in my view, is unsafe and cannot be relied upon in preference to the direct evidence of the applicant.

[22] In these matters, in the end a determination has to be made on balance as to which version is more likely to be true. I cannot exclude a possibility beyond reasonable doubt that the version as given by the two witnesses for the respondent may in fact be true, but on the balance I prefer Ms Froeschl-Avis's version. On that basis, I dismiss the jurisdictional objection and will go on to consider the substantive question as to whether the dismissal was unfair. In doing that, I need to consider the criteria under section 387 of the Act. In considering whether I am satisfied that a dismissal is harsh, unjust or unreasonable, the Fair Work Commission must take into account firstly section 387(a) whether there was a valid reason for the dismissal related to the person's capacity or conduct.

[23] In having preferred on balance the version of the meeting on 25 September as provided by the applicant, it necessarily follows I also prefer on balance her version of the events on 26 September and there is simply no direct evidence going to an alternative version before me. That being the case, I must consider whether there was a valid reason related to her capacity or conduct. There is no direct evidence before me going to those issues for the respondent. There is some written material filed going to her performance in terms of working slowly and presenting for work in a hung over state. There is insufficient material, however, to support a finding that the respondent had a valid reason for termination as at 26 September 2013.

[24] In terms of whether she was notified of the reasons for her dismissal, the evidence is that the applicant did have some discussion on the afternoon of 25 September, but that the reasons for termination were only advised to her in the course of a conversation with Kim Radford on 26 September, in which she was terminated. In terms of whether she was given an opportunity to respond to any reason relating to capacity or conduct, it is the evidence that no such opportunity was given.

[25] In terms of section 387(d), the evidence simply is that she was not given an opportunity to have a support person present for any discussions because no such discussions occurred about the reasons relating to her dismissal. In terms of section 387(e) if the dismissal related to unsatisfactory performance by the person, whether the person had been warned, the applicant's evidence is that she has claimed that she had no formal warnings about her performance prior and, in the circumstances, I must accept the evidence.

[26] In terms of section 387(f) the degree to which the size of the employer's enterprise would be likely to impact on the procedures, I am satisfied that the employer, being a motel in Bundaberg, is a small employer and would not have internal human resources advice to rely upon. In terms of considering that matter and section 387(g), I do weigh the fact that the employer being a small business would not have had dedicated human resource management specialists or expertise to advise them on procedures to follow. I do not intend to make any commentary in relation to any other matters in relation to section 387(h), but on weighing all the various criteria I need to consider under section 387, I do find that the termination was harsh, unjust or unreasonable.

[27] I now need, however, to turn to the question as to what is an appropriate remedy. The applicant has made clear that she does not seek reinstatement. An email was provided by the applicant on 29 April to the tribunal advising she was claiming a period of six weeks' wages as compensation, because she said that was the period she was without employment. She claimed, and repeated in her evidence today, that she believed her average weekly income was $450 per week.

[28] The applicant has given evidence that she was a casual employee, which has not been disputed, for a period of about 13 months of employment, that the employment was on a regular and systematic basis in the order of about four days in each given week. In terms of determining what would be appropriate compensation, under section 392(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 … in lieu of reinstatement.

[29] For the reasons I have already said, the applicant does not seek reinstatement. I do not intend to consider it. In terms of the criteria for deciding an appropriate amount, In determining an amount for the purposes of an order under subsection (1), the Fair Work Commission must take into account all the circumstances of the case including: (a) the effect of the order on the viability of the employer's enterprise.

[30] There is no clear evidence before me that the motel's viability would be affected by an order of the nature sought by the applicant, the length of the person's service with the employer. In this case, the longevity was fairly short in that it was only a period of around 13 months. This factor does not support the substantial order being issued.

[31] In terms of the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed, well, obviously the applicant has given evidence that she gained other employment within six weeks after being terminated. The applicant was casual, but, further, the applicant has given evidence that she herself was considering resigning her employment on the day of 25 September. On her own evidence, it is apparent the relationship was already quite strained. It is my view that the relationship in all the circumstances was unlikely to have lasted for more than perhaps another two weeks, given the evidence before me.

[32] In terms of section 392(d), I need to consider the efforts of the applicant to mitigate her loss. Again, as I stated, she gained other employment within six weeks. This does not tell against reducing a compensation order. In terms of, 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, and also, 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.

[33] I have already said she gained employment within six weeks after termination. I also need to consider whether misconduct would justify a reduction in the amount. I am not satisfied that there is sufficient evidence for me to reduce any order for compensation on the basis of the evidence before me concerning misconduct. I am not allowed to consider, in the amount ordered to pay, any component by way of compensation for shock, distress or humiliation.

[34] Having considered all the relevant criteria under section 392, it is my intention to issue an order that the respondent pay to the applicant the sum of $900, taxed according to law - so that will be a gross sum taxed according to law - within a period of 14 days from the date of issue of the order. That is my decision.

COMMISSIONER

Appearances:

Ms Peta Froeschl-Avis the Applicant

Ms McNevins for the Respondent McNevins (Cesnock) Pty Ltd T/A McNevins Maryborough Motel

Hearing details:

2014.

Brisbane:

29 January

Printed by authority of the Commonwealth Government Printer

<Price code C, PR547216>