Ms Priscilla Lavery v Northern Territory Stolen Generations Aboriginal Corporation
[2024] FWC 1369
•25 JUNE 2024
| [2024] FWC 1369 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Priscilla Lavery
v
Northern Territory Stolen Generations Aboriginal Corporation
(U2024/1232)
| COMMISSIONER RIORDAN | SYDNEY, 25 JUNE 2024 |
Application for an unfair dismissal remedy
On 6 February 2024, Ms Priscilla Lavery (the Applicant) filed an application with the Fair Work Commission (the Commission) seeking a remedy for an alleged unfair dismissal pursuant to section 394 of the Fair Work Act 2009 (the FW Act). The Applicant was dismissed by the Northern Territory Stolen Generations Aboriginal Corporation (the Respondent) on 17 January 2024.
In its Form F3 – Employer Response, the Respondent raised a jurisdictional objection to the application on the basis that it is a small business employer and had complied with the Small Business Fair Dismissal Code (the Code).
Background
In its Outline of Submissions, the Respondent provided a Chronology which relevantly provided that:
“The Respondent is a not-for-profit enterprise that was established by survivors of the stolen generation to advocate for the rights and well-being of all stolen generations in the Northern Territory.
At the time of the Applicant’s dismissal, the Respondent had 9 employees.
As part of its operations, since 2021, the Respondent has facilitated a “Redress Scheme”, the purpose of which is to compensate subjects of the stolen generation.
The Respondent employed two “Territories Stolen Generations Scheme Redress Officers” to assist with this scheme which requires extensive community engagement.
In or around August 2022, the Applicant applied for the position of Redress Officer with the Respondent. During her interview, the Respondent’s Acting Chief Executive Officer, Ms Raelene Rosas explicitly informed the Applicant of the sensitive role the Respondent plays in the community, noting:
“We work with vulnerable people and we have to make sure we work in a culturally appropriate manner at all times. We travel to communities and at times, when communities shut down during sorry business, we have to be mindful of that. We have to make sure that we make contact before we travel and if sorry business is on, we can’t attend”.
On 1 September 2022, the Applicant commenced in the role of Redress Officer. The objectives of her role were clearly articulated in her contract of employment and included, among other things:
7.1 providing detailed information of the Redress Scheme to stolen generations peoples and supporting them with their applications for redress;
7.2 collecting story/information from some of the most vulnerable clients about their removal from families and communities, providing therapeutic support to clients, and ensuring that work is conducted in a culturally appropriate manner;
7.3 ensuring that all aspects of the service are provided in a culturally competent and safe manner and are conducted in a trauma-informed approach; and
7.4 contributing to effective team performance.”
Between 3 and 5 May 2023, the Applicant attended Marumali training (Cultural Training), run by an aboriginal leader and her daughter. The Respondent received a complaint that the Applicant had spoken over the aboriginal leader and her daughter during the Cultural Training.
In June 2023, the Respondent held a morning tea with some of their elders. After the morning tea, the Respondent received a complaint that the Applicant had been abrupt in asking questions and that the elders did not wish to interact with her again.
The Respondent also received around 5 complaints from its Redress Scheme Applicants, and various complaints from its Employees regarding the Applicant’s conduct. These were formally recorded by the Respondent in File Notes.
On 23 October 2023, Ms Rosas wrote to the Applicant following up the signing of her new contract that had been provided to the Applicant on 11 October 2023:
“Hi Priscilla,
I have been asked by our accountants if you have signed your contract yet? Please let me know as they need it to calculate your pay. Please email me to let me know and then we can send a copy to them to do pays this week. Thanks.
Kind regards,
Raelene Rosas
Interim Acting CEO”
On that same date, the Applicant responded as follows:
“Dear Raelene,
No I haven't yet could you please advise the hourly pay rate used to calculate the proposed remuneration of $89,466.16 per annum?
Also Clause 1 Employment refers to the attached position description but no position description was attached, could you please provide, is the position description identical to my current position description?
I don't agree at Clause 2 with my Employment Term coming into effect from the date of 01/07/2023. I commenced employment at NTSGAC on 01/09/2022. There is also no mention of the duration of the term as per my current contract.
My payslip has me classified as Level 5, Pay Point 1 but this is not reflected at 3.1 that demotes to Level 4, Pay Point 4.
I am entitled to be paid correctly whether a new contract is signed or not.
I do not agree with clause 6 and don't want to be denied due process, the terms of the Award and relevant legislation that you can't contract out of to make someone worse off I submit are more than adequate and reasonable.
Lastly but not least I would like to negotiate that whilst my Ordinary hours of work remain at 38 hours per week that my Core working hours are Monday to Friday from 8AM to 4.16PM (40 minutes lunch) to enable me to get the bus, it's unsafe to wait an hour for the next bus and not good for my health.
Kind Regards,
Priscilla Lavery”
As a result of various complaints raised against the Applicant, the Respondent stood the Applicant down on full pay on 8 November 2023. Relevantly, the Applicant and Ms Raelene Rosas, Interim Acting CEO, engaged in the following email exchange on 8 November 2023.
The Applicant emailed Ms Rosas, seeking clarification as follows:
“Hi Raelene,
As I haven’t heard from you since Friday could you please instruct me further.
I remain ready, willing and able to work and you still have not informed me as to why you told me not to present to the office this past Monday, Tuesday and Wednesday.I intend to present to work in the morning unless you instruct me otherwise.
Kind regards
Priscilla”
Ms Rosas responded to the Applicant on the same date:
“Hi Priscilla,
The Board is meeting on Friday afternoon and I will be able to let you know more then. I am working with HR at the moment and we will send you a letter tomorrow. Please do not come to work until I have let you know as this is a process that I have to do and go through to protect the organisation.
Kind regards,
Raelene Rosas
Raelene Rosas
Interim Acting CEO”
Ms Rosas issued a formal Stand Down Letter to the Applicant on 10 November 2023:
“10 November 2023
Priscilla Lavery
[address redacted]
Not to return to work until further notice:
Dear Priscilla,
My apologies for not sending this letter earlier I am still in the process of getting advice from our HR. At this point in time I would like you not to come into work until my return from meetings in Melbourne. You are being paid normal hours of work until I finish with this process.
Kind regards,
Raelene Rosas
Acting Interim CEO”
On 17 November 2023, the Applicant wrote to Ms Rosas questioning her stand down:
“Dear Raelene,
I did not receive last weeks payslip, could you please send.
I still have not been informed as to the reasons for my being stood down on pay or when you will permit me to attend work.
Please inform in writing the reasoning and allegations, if any, for my being stood down.
Kind Regards
Priscilla”
Ms Rosas responded on 20 November 2023 stating:
“Dear Priscilla,
Sorry for not responding earlier. The allegations for you being stood down are that your behaviour towards staff and clients are culturally inappropriate. I have been dealing with our HR and have been advised to stand you down on full pay. This is a process and I will have further advise (sic) and then I will let you know. Please do not come into work as I am still working out where to next. I will send your payslip this morning. I will let you know what happens next.
Kind regards,
Raelene Rosas
Interim Acting CEO”
The Applicant responded to Ms Rosas on the evening of 20 November 2023, stating:
“Dear Raelene
Thank you for your email of this morning.
Please provide in writing the dates, times, details of the alleged culturally inappropriate behaviour towards staff and clients to which you refer.
This has never been raised with me before and I have not been informed of any complaints.
I look forward to receiving details, in writing, of the alleged culturally inappropriate behaviour.
Kind Regards
Priscilla”
Ms Rosas responded to the Applicant on 21 November 2023, providing:
“Dear Priscilla,
I have been advised by our HR that the previous complaints are outdated and we have to deal with the present. An investigation is underway and we will let you know the outcome. Staff have given their grievance reports but these incidents happened a while back and should have been raised at the time. I will send you the below information when I have it. You are still on stand down until I advise you. Thank you I will be in touch soon.
Kind regards,
Raelene Rosas
Interim Acting CEO”
The Applicant further wrote to Ms Rosas on the evening of 21 November 2023, seeking further clarification as follows:
“Dear Raelene
Who is “our HR”?
Please provide copies of any complaints made against me (including outdated) and all staff grievance reports to which you refer in your email below of this morning.
You have not raised any of this with me before and I wish to know the case against me and have a reasonable opportunity to respond.
And further I wish to bring forward any witnesses in rebuttal before the investigation process is concluded.
Kind Regards
Priscilla”
On Wednesday, January 17, 2024, Ms Rosas wrote to the Applicant advising that her employment had been terminated:
“Dear Priscilla,
I have been trying to contact you as we have decided to terminate your employment as of today.
Your pay that you are owed will be sorted by COB tomorrow 18 January 2024.
Please see the letter of termination.Kind regards,
Raelene Rosas
Interim Acting CEO”
The correspondence attached the Applicant’s Letter of Termination which provided:
“17 January 2024
Priscilla Lavery
[redacted]RE: Termination of Employment
Dear Priscilla Lavery,
This letter is to inform you that your employment as the Redress Officer for the Territories Redress Scheme and the NT Stolen Generations Aboriginal Corporation is terminated as of today. The reason for your termination is that our staff will not work with you and we have received complaints from clients. Also your refusal to sign the new contract that is part of the new Fair work guidelines.
To work with our vulnerable people we have to uphold the organisations integrity for the clientele that we service. We have to work with clients that have already been traumatised and must ensure that delivery of our service is in a culturally appropriate manner.
In closing please take care.
Kind regards,
Raelene Rosas
Interim Acting CEO”
The matter was heard in Darwin on 21 and 22 May 2024. The Applicant appeared and gave evidence on her own behalf at the Hearing. The Respondent was granted leave pursuant to s.596 of the FW Act to be represented at the Hearing by Mr H Pararajasingham of Counsel.
The following persons gave evidence for the Respondent at the Hearing:
Ms Raelene Rosas, Interim CEO; and
Ms Henrietta Hunter, Social, Emotional Wellbeing Support Officer.
Witness statements were submitted for a Mr Patrick Ahkit, Link-Up Caseworker for the Respondent, and Mr Tyron Major, Office Manager for the Respondent. The Applicant did not require these witnesses for cross-examination.
A further hearing was scheduled for 12 June 2024 to allow Ms Kathy Paterson, Territory Redress Officer for the Respondent, to give evidence due to her unavailability at the initial hearing for cultural reasons. Ms Paterson could not attend on 12 June 2024 due to another cultural issue. The Respondent asked for the matter to be determined on the evidence and submissions that were before the Commission.
Statutory Provisions
The relevant sections of the FW Act relating to an unfair dismissal application are:
“396 Initial matters to be considered before merits
The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:
(a) whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;
(d) whether the dismissal was a case of genuine redundancy.
381 Object of this Part
(1) The object of this Part is:(a) to establish a framework for dealing with unfair dismissal that balances:
(i) the needs of business (including small business); and
(ii) the needs of employees; and(b) to establish procedures for dealing with unfair dismissal that:
(i) are quick, flexible and informal; and
(ii) address the needs of employers and employees; and(c) to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.
(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a “fair go all round” is accorded to both the employer and employee concerned.
Note: The expression “fair go all round” was used by Sheldon J in in re Loty and Holloway v Australian Workers’ Union [1971] AR (NSW) 95.382 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.
384 Period of employment
(1) An employee’s period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee.
(2) However:(a) a period of service as a casual employee does not count towards the employee’s period of employment unless:
(i) the employment as a casual employee was on a regular and systematic basis; and
(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis; and(b) if:
(i) the employee is a transferring employee in relation to a transfer of business from an old employer to a new employer; and
(ii) the old employer and the new employer are not associated entities when the employee becomes employed by the new employer; and
(iii) the new employer informed the employee in writing before the new employment started that a period of service with the old employer would not be recognised; the period of service with the old employer does not count towards the employee’s period of employment with the new employer.
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.
see section 388.
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 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 the FWC considers relevant.
388 The Small Business Fair Dismissal Code
(1) The Minister may, by legislative instrument, declare a Small Business Fair Dismissal Code.
(2) A person’s dismissal was consistent with the Small Business Fair Dismissal Code if:
(a)immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person’s employer was a small business employer; and
(b)the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal.”
The Small Business Fair Dismissal Code provides:-
“The Code
Summary Dismissal
It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.
Other Dismissal
In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job.
The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.
The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.
Procedural Matters
In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.
A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.”
Respondent’s Submissions
The Respondent submitted that the questions for determination in this matter are as follows:
“• in dismissing the Applicant, did the Respondent comply with the Code?
· if the Respondent did not comply with the Code, was the Applicant’s dismissal harsh, unjust or unreasonable for the purposes of s.387 of the FW Act?”
Complaints received about the Applicant
The Respondent submitted that during her employment, the Applicant’s conduct did not align with the expectations of her role, and the Respondent received significant and repeated complaints from members of the indigenous community, candidates of the Redress Scheme and other employees, as outlined below.
Complaints submitted by members of the indigenous community
The Respondent submitted that between 3 and 5 May 2023, the Applicant was directed to attend cultural training facilitated by indigenous elders. The Respondent was informed that the Applicant proceeded to talk over these indigenous elders during these sessions.
Further, in June 2023, indigenous elders complained that the Applicant lacked sensitivity when canvassing their experiences, and asked “too many questions” in an “abrupt” manner. The Respondent submitted that as a result, these indigenous elders indicated a reluctance to work with the Applicant.
The Respondent submitted that after the above incidents were brought to the Respondent’s attention, Ms Rosas warned the Applicant, and others, that when dealing with indigenous elders it was important to exercise restraint and discretion, as “they don’t want to go into things”.
The Respondent submitted that its enterprise is wholly dependent on maintaining strong and effective relationships with the indigenous community. The Respondent submitted that as a result of the Applicant’s conduct, this was placed in jeopardy. This, consequently, impacted the Respondent’s legitimacy and its capacity to properly engage with its stakeholders.
Complaints submitted by candidates of the Redress Scheme
The Respondent submitted that when dealing with a candidate who was recovering from alcohol abuse, the Applicant made him “feel out of place” such that he no longer wanted her assistance. The Respondent submitted that in the aftermath of this incident, Ms Rosas warned the Applicant about her performance, noting that she had to be “very careful” when dealing with vulnerable sections of the community who “might have triggers”. The Respondent submitted that the Applicant was cavalier in her approach towards a particular candidate by making a series of unprompted and unnecessary attempts at contact. The Respondent submitted that after this incident, Ms Rosas again warned the Applicant that repeated overtures are not culturally appropriate, for these candidates have dealt with significant trauma and the Applicant had to be “really careful” about how she interacted with candidates.
The Respondent submitted that in or around July 2023, a candidate, who had recently suffered a family loss, complained that the Applicant was “asking too many questions that are too personal” and, in fact, refused to further deal with the Applicant. The Respondent submitted that after this incident, Ms Rosas warned the Applicant that candidates are reluctant to work with her, as “they don’t feel like you are assisting them”.
Further, in September 2023, the Respondent submitted that a candidate whose application for the Redress Scheme was unsuccessful complained that the Applicant failed to provide appropriate assistance with preparing the application and was instead preoccupied with asking “too many personal questions” which had the effect of making the candidate “doubt what happened to me” (when referring to his experiences in the stolen generation).
The Respondent submitted that, as its enterprise is, fundamentally, predicated on providing a particular service to candidates of the Redress Scheme, the above incidents were of significant concern. The Respondent submitted that it was apparent from these complaints that the Applicant was failing to engage in a culturally appropriate manner such that candidates were refusing to work with her.
The Respondent submitted that despite the constructive feedback provided by Ms Rosas, it was evident that the Applicant’s performance was not substantively improving.
Complaints submitted by employees of the Respondent
The Respondent submitted that in March 2023, the Applicant adversely impacted the Respondent’s reputation by the way she carried herself whilst on a community outreach trip at Groote Eylandt. The Respondent submitted that the Applicant was disrespectful and unnecessarily combative when complaining to hotel staff about the state of her room.
The Respondent submitted that in May 2023, the Applicant’s colleague, Mr Patrick Ahkit, felt belittled and undervalued when she insisted on providing instructions to him about how to speak to an indigenous man (in circumstances whereby Mr Ahkit, himself, is indigenous) and also dismissed an issue of research he had been conducting relating to indigenous land ownership.
The Respondent submitted that, also in May 2023, during a community outreach trip at Jabiru and Gunbbalanya, the Applicant failed to pick up a colleague, Ms Kathy Paterson, on time. This resulted in disruption and indicated the Applicant’s disregard for her duties. The Respondent submitted that after this incident, Ms Rosas warned the Applicant and others about the importance of timeliness, and this also resulted in alterations to the Respondent’s workplace
procedure regarding transport.
The Respondent submitted that in July 2023, during a community outreach trip to Wurrumiyanga, the Applicant was required to arrange accommodation for colleagues. The Respondent submitted that the Applicant failed to appropriately discharge this task and, further, when it was apparent that only her room was ready, she did not offer or permit colleagues to leave their bags in her room. The Respondent submitted that this led to further disharmony among the team, and feelings of distrust.
The Respondent submitted that in August 2023, when organising a community outreach trip to Wadeye, the Applicant failed to make due enquiries regarding the availability of possible clients because of sorry business. The Respondent submitted that the Applicant was aware of this cultural protocol, and the Wadeye community found the Respondent’s presence at that time to be disrespectful and disruptive. The Respondent submitted that this led to the trip being a waste of resources. The Respondent submitted that, further, during another trip to Wadeye in August, the Applicant had two candidates (a brother and a sister) in the same room when completing an application for the Redress Scheme. The Respondent submitted that this was not culturally appropriate and troubled the candidates.
The Respondent submitted that in September 2023, during a work trip to Wurli Wurlinjang, the Applicant spoke to candidates and community members in an inappropriate manner. The Respondent submitted that the Applicant also proceeded to cause disruption by forcing her colleagues to leave an office space which they had booked. The Respondent submitted that as a result of her conduct, colleagues informed Ms Rosas that they did not want to be sent on any further trips with the Applicant.
Further, in September 2023, during a community outreach trip to Timber Creek, the Respondent submitted that the Applicant failed to make suitable accommodation arrangements for colleagues who, due to their physical limitations, needed to be on the ground floor as they could not take the stairs.
Also in September 2023, the Respondent submitted that the Applicant’s colleague, Ms Henrietta Hunter, felt belittled and undervalued when the Applicant pointedly asked her whether, in advance of a trip to Katherine, she had inquired about any sorry business. The Respondent submitted that Ms Hunter had done so, and found the Applicant’s inquiry insulting and suggestive that she was unable to do her job and required micromanagement.
The Respondent submitted that in October 2023, the Applicant had an adverse interaction with Office Manager, Mr Tyron Major, when she questioned the manner in which he attended to his role, such that he thereafter refused to work with the Applicant.
The Respondent submitted that the multiple incidents with colleagues had an adverse impact on the Respondent’s enterprise. The Respondent submitted that it led to colleagues feeling disrespected and undervalued, and many noted their refusal to work with the Applicant in any capacity. The Respondent submitted that despite its endeavours to bring these issues to the Applicant’s attention, it did not result in any alteration to her conduct.
The Respondent submitted that as a result of the discord between the Applicant and members of the indigenous community, candidates for the Redress Scheme and colleagues, on 8 November 2023, Ms Rosas stood the Applicant down on full pay. In reaching this decision, among other things, Ms Rosas was focused, fundamentally with “protect[ing] the organisation” and was concerned:
“• about the “genuine emotions of employees” who had raised the numerous complaints;
· that if she did not take this step, “I would have no staff left to perform functions because they would leave”; and
· about the reputational damage the Respondent’s enterprise was sustaining.”
The Respondent submitted that after taking a period of time to consider available options, on 17 January 2024 the Respondent informed the Applicant of its decision to dismiss her. As noted in the termination letter, the Applicant was informed that “our staff will not work with you and we have received complaints from clients”. It further stated that:
“to work with our vulnerable people we have to uphold the organisations integrity for the clientele that we service. We have to work with clients that have already been traumatised and must ensure that delivery of our service is in a culturally appropriate manner.”
The Respondent submitted that upon termination, the Applicant was issued payment in lieu of notice pursuant to s.117 of the FW Act.
Application of the Code
The Respondent submitted that the section of the Code which concerns a dismissal (which is not a summary dismissal) states as follows:
“Other Dismissal
In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job.
The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.
The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response.
Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.”
(My emphasis)
The Respondent submitted that it duly complied with this section of the Code. In this
regard it noted that:
“• it had a valid reason for dismissal being the Applicant’s sustained conduct which failed to meet the Respondent’s expectations… Most notably, by failing to discharge her role in a culturally appropriate manner, the Applicant’s conduct was having the tangible impact of undermining the Respondent’s standing in the indigenous community and with candidates for the Redress Scheme. Further, the Applicant’s conduct was resulting in disharmony and discord among the employee base, such that employees refused to work with her further;
· on repeated occasions, as noted … above, the Respondent verbally warned the Applicant about its concerns with her performance. Here the Respondent notes that, in order to comply with the Code, warnings can involve “informal communications” and that there is no requirement for formal written correspondence; and
· … the Respondent provided the Applicant with numerous opportunities to rectify her conduct. From at least June 2023, the Applicant was squarely on notice of the Respondent’s general concerns regarding her dealings with the indigenous community, candidates of the Redress Scheme and colleagues. However, regrettably, her conduct did not improve and, as such, the Respondent exercised its prerogative under the Code to dismiss.”
The Respondent submitted that, for the above reasons, it complied with the Code and the Applicant’s application should be dismissed.
Application of s.387 of the FW Act
The Respondent submitted that, in the event the Commission finds that the Respondent did not comply with the Code, then it is required to undertake an assessment of the criteria in s.387 of the FW Act. The Respondent addressed the criteria as follows.
Section 387(a) – Valid reason
The Respondent reiterated that the reason provided above at paragraph [51], dot point 1, is sound, defensible and well founded. The Respondent submitted that it is clearly apparent from the evidence tendered and on any objective analysis of the relevant facts, that the Applicant’s conduct did not align with the Respondent’s expectations. The Respondent submitted that the Applicant was aware of the underlying requirement to discharge her duties in a culturally appropriate manner, however, on repeated instances, showed an aversion to this obligation. The Respondent submitted that given the precise nature of the Respondent’s enterprise, the Applicant’s conduct challenged its standing in the community and with stakeholders. Further, the Respondent submitted that the Applicant demonstrated an inability to work cordially with her colleagues, and this resulted in angst, distrust and disharmony, with many indicating that they would leave the Respondent’s enterprise. The Respondent submitted that in these circumstances, it had a rational basis to dismiss the Applicant.
Section 387(b) – Notification of the reason for dismissal and Section 387(c) – Opportunity to respond
The Respondent asserted that by way of the repeated warnings issued to the Applicant, as well as the stand down direction of 8 November 2023, she was duly on notice of the pending reason for dismissal. The Respondent further asserted that Ms Rosas and the Applicant frequently engaged in discussions such that the Applicant was effectively provided with the chance to advance her views and respond on relevant matters.
The Respondent submitted that its approach sufficiently discharged the obligations at s.387(b) and s.387(c) of the Act, particularly when considering the nature of its enterprise. The Respondent submitted that, notably, these provisions do not require any formality, and are instead to be applied in a commonsense way.
Section 387(d) – Unreasonable refusal of a support person
The Respondent submitted that this element is not applicable to this matter.
Section 387(e) – Warnings about unsatisfactory performance
The Respondent reiterated its submissions at paragraph [51], dot points 2 and 3. Significantly, the Respondent noted that it issued warnings to the Applicant from as early as June 2023 and permitted an extended amount of time for the Applicant to rectify these concerns (proceeding to dismiss her only in January 2024, after it was apparent no improvement was forthcoming). The Respondent submitted that this period of time was sufficient to give the Applicant the opportunity to understand her employment was at risk and to try and improve, though regrettably she did not.
Section 387(f) – Size of the Respondent’s enterprise and Section 387(g) – Absence of dedicated human resource management specialists
The Respondent submitted that these criteria are significant in these proceedings. The Respondent submitted that its enterprise is particularly small, with only 9 employees, and it does not have dedicated human resources staff. Further, the Respondent submitted that it is a non-profit organisation, with its funding being dependent on government contracts.
The Respondent submitted that these matters ought to be taken into account when considering the extent to which the Respondent could undertake ‘best practice’ compliance with the provisions of s.387 of the FW Act.
The Respondent also noted that it is primarily staffed by indigenous employees, and their customs and cultural paradigms are relevant to its day-to-day operations.
Section 387(h) – Any other matters
The Respondent submitted that the Commission should also have regard to the fact that the Applicant was employed for a short period of time (around 16 months) and, for the reasons aforementioned, did not maintain a strong performance record. The Respondent submitted that these factors mitigate against any harshness finding.
The Respondent submitted that in the event the Commission finds that it did not comply with the Code, then for all of the above reasons, the Respondent otherwise submitted that the dismissal was not harsh, unjust or unreasonable per s.387 of the FW Act. Therefore, the Respondent submitted that the Application ought to be dismissed.
Applicant’s Submissions
The Applicant submitted that she was unfairly dismissed by the Respondent.
The Applicant submitted that the Respondent did not comply with the Code in dismissing her, and that her dismissal was harsh, unjust or unreasonable for the purposes of s.387 of the FW Act.
Relevant Chronology
The Applicant provided a table outlining the relevant chronology leading up to her dismissal as follows:
| Date | Event | Paragraph number/Source |
| 01.09.2022 | Applicant Priscilla Lavery (“Applicant”) commenced employment with the Respondent | PL Statement 9 |
| 06.09.2023 | Applicant Performance Appraisal – No performance concerns raised by Respondent | PL Annexure “H” |
| 11.10.2023 | Applicant given “New Contract” to sign by the Respondent – No prior Consultation – Applicant says she needs time to consider | PL Statement 21, 22 Annexure “E” |
| 23.10.2023 | Respondent emails the Applicant asking if she has signed the “New Contract.” On same day the Applicant emails Respondent asking questions about the “New Contract.” Respondent never answers those questions. | PL Statement 23, 24 Annexures “F” “G” |
| 03.11.2023 | Applicant Stood Down by Telephone | PL Statement 168- 183. |
| 17.01.2024 | Applicant Terminated by Email | PL Statement 11, 183 Annexure “B” |
Section 387(a) – Valid reason
The Applicant submitted that a “small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job.” The Applicant submitted that the Respondent gave the Applicant no valid reason for her dismissal.
The Applicant submitted that the actual reason for her being at risk of dismissal was not articulated to her. The Applicant submitted that the reference in Ms Rosas’s email of 20 November 2023 (at paragraph [14]), that “your behaviour towards staff and clients are culturally inappropriate”, does not adequately or accurately outline the reasons for the dismissal or put the Applicant on notice.
The Applicant submitted that she was not informed of what the alleged “culturally inappropriate” conduct was or the details of client or staff complaints prior to the Respondent making its decision to terminate her. Further, the Applicant submitted that the Respondent had not explained to her why her “refusal to sign the new contract” was a reason for the Respondent to terminate her employment, being reasons that came after the decision to terminate was made.
Further, the Applicant submitted that she was not put on notice or given any reasons why her employment was at risk.
Section 387(b) – Whether the Applicant was notified of the reasons for dismissal
The Applicant submitted that the actual basis of the dismissal was not articulated to her. The Applicant submitted that the reference to “The reason for your termination is that our staff will not work with you and we have received complaints from clients. Also your refusal to sign the new contract” did not adequately or accurately outline the reasons for the dismissal.
Section 387(c) – Whether the Applicant was given an opportunity to respond to any reason
related to her capacity or conduct
The Applicant submitted that she was not given an opportunity to respond to any reason related to her capacity or conduct. The Applicant submitted that she was not informed of the
client or staff complaints against her, or why her “refusal to sign the new contract” (which is no longer relied upon by the Respondent) was a reason for the Respondent to terminate her employment.
The Applicant submitted that she was not aware of any concerns about her work performance or conduct. Relevantly, the Applicant submitted that at her performance review on 6 September 2023 by the Respondent’s Interim Acting CEO, Ms Rosas, no capacity, conduct, performance or other concerns were raised with her.
The Applicant submitted that an opportunity to respond in this context includes where relevant, the opportunity to provide a perspective on the allegations. The Applicant submitted that she was not informed of the allegations made against her and had no opportunity to provide her perspective on the allegations.
The Applicant submitted that she made numerous requests by email for the Respondent to inform her of the reasons she was being stood down and details of the alleged ‘culturally inappropriate behaviour’, including on 8 November 2023, 17 November 2023, and 20 November 2023. Further, the Applicant submitted that on 21 November 2023, she made a request for the Respondent to provide her with copies of any complaints made against her and all staff grievance reports, and for the Respondent to provide her with a reasonable opportunity to respond and bring forward any witnesses before the investigation process was concluded. The Applicant submitted that this request “was met by dead silence from the Respondent”.
The Applicant submitted that on 17 January 2024, she received a ‘please contact me asap’ email from the Respondent, which was quickly followed by another email informing that she had been terminated. A letter of termination was attached.
The Applicant submitted that where the matters related to overall job performance and
attitude, rather than misconduct, an opportunity to demonstrate improvement would normally be expected. The Applicant submitted that she was given no opportunity to demonstrate improvement. The Applicant submitted that, firstly, she was not informed by the Respondent or made aware of any capacity, conduct or other concerns; and secondly, she was abruptly stood down by the Respondent on 3 November 2023 and prevented from engaging in her employment again.
The Applicant submitted that she was not given any opportunity to demonstrate improvement as she was continuously directed by the Respondent not to attend the workplace and was then summarily terminated, with no prior warnings.
The Applicant submitted that in-house cultural training could have readily been provided to her by the Respondent, but this was not forthcoming.
Section 387(d) – Unreasonable refusal of a support person
The Applicant submitted that the Respondent’s “multifaceted non-compliance with the Code resulted in this element not being applicable”.
Section 387(e) – Warnings about unsatisfactory performance – If the dismissal is related to unsatisfactory performance by the Applicant – whether she has been warned about that unsatisfactory performance before the dismissal
The Applicant submitted that the Respondent did not issue any written or informal warnings to her about unsatisfactory performance at any time. The Applicant submitted that as a result, she was not made aware of any concerns about her work performance or conduct, or that her employment was at risk unless her performance improved.
The Applicant submitted that she has not been afforded any reasonable opportunity to respond to any reason related to her capacity or conduct, or given the opportunity to demonstrate improvement in her performance. The Applicant submitted that this was further impacted by the direction that she not attend the workplace.
The Applicant submitted that the Respondent’s Form F3 Response and prior treatment of her was “in fact more indicative of a summary dismissal for serious misconduct than one of unsatisfactory performance”.
The Applicant submitted that the Respondent was required to openly communicate with her about their concerns and to provide an opportunity for improvement, but it did not do so.
Section 387(f) – Size of Respondent’s enterprise
The Applicant acknowledged that the Respondent is a small business, however, submitted that this does not mean that the lack of natural justice in the decision to dismiss her can be overlooked.
The Applicant further submitted that the size of the Respondent’s enterprise cannot be used as an excuse for the Respondent’s “multifaceted disregard of the Small Business Fair Dismissal Code (“the Code”)”. The Applicant submitted that the Respondent failed in their obligations to afford her with an opportunity to respond to the allegations and an opportunity to be heard on the employer’s intention to dismiss her before the decision was final.[1]
The Applicant submitted that the Respondent, as a small business employer, was required to comply with the Code, however, it failed to do so.
Section 387(g) – Absence of dedicated human resource management specialists
The Applicant acknowledged that the Respondent does not have (in-house) dedicated human resource management specialists. However, the Applicant submitted that Ms Rosas confirmed in her correspondence to the Applicant that the organisation did have access to such advice and in fact frequently accessed Human Resources advice, particularly during the period from when the Applicant was stood down on 3 November 2023 and her subsequent termination on 17 January 2024.
The Applicant submitted that in this matter, there were significant procedural defects in terms of the process ultimately adopted by the Respondent. The Applicant submitted that the absence of clearly articulated allegations or concerns, absence of formal or informal warnings, and the absence of a genuine opportunity to respond to those concerns are amongst these deficiencies.
The Applicant submitted that some of these deficiencies have led to significant unfairness to the Applicant. The Applicant submitted that given that the employer had access to external Human Resources advice, the absence of dedicated human resources specialists is not a significant mitigating factor such as to overcome these deficiencies.
Section 387(h) – Other matters
The Applicant submitted that she is 54 years old, lives alone and has a mortgage. The Applicant also submitted that she suffers from PTSD and Rheumatoid Arthritis.
The Applicant submitted that she had intended to work with the Respondent until the completion of her contract on 30 September 2026. The Applicant estimated that the income she would have received from the date of her termination until the completion of her contract was $254,502.18 (141 Weeks x $1,804.98 = $254,502.18).
The Applicant submitted that while she had been seeking reinstatement, “no offers of reinstatement have been forthcoming from the Respondent who has made it clear in no uncertain terms that the Applicant is not welcome”. The Applicant agreed that the Respondent’s workplace is not a safe work environment for her to return to, as the Respondent has not acted in good faith, and has been callous and disrespectful to the Applicant in effecting her stand down and termination. The Applicant submitted that she has lost complete trust and confidence in the Respondent as a result of these actions.
The Applicant submitted that she has looked for other employment but had been unsuccessful at the date of filing her submissions, meaning she has not earned any income since her dismissal.
The Applicant submitted that her dismissal by the Respondent has affected her psychologically, such that her mental state has prevented her from fully engaging in the employment market.
Conclusion
The Applicant submitted that the Respondent overwhelmingly failed to comply with the Code. The Applicant submitted that her dismissal was harsh, unjust or unreasonable in accordance with s.387 of the FW Act.
The Applicant submitted that she was unfairly dismissed, and in circumstances where reinstatement is not found to be possible, she should be awarded significant compensation.
Respondent’s Submissions in Reply
In Reply, the Respondent relied on a Reply Witness Statement of Ms Rosas. Relevantly, Ms Rosas provided as follows.
Ms Rosas denied that the Applicant’s classification was Level 5, Pay Point 1. Ms Rosas stated that based on the duties and responsibility of the role of Territory Redress Officer, the most correct classification is Level 4 employee under the SCHADS Award. Ms Rosas noted that she had mistakenly stated the Applicant was ‘pay point Level 5, Pay Point 1’ in email correspondence of 12 September 2023 to the NTSGAC Bookkeeper. Ms Rosas stated that this error was then corrected with the Bookkeeper. Ms Rosas stated that she has reviewed the Applicant’s payslips, and acknowledged that ‘Level 5, Pay Point 1’ was incorrectly included despite her instruction to the Bookkeeper that this be corrected.
Regarding the ‘performance review’ referenced in the Applicant’s Witness Statement, Ms Rosas stated that this was to discuss new contracts. However, she noted that she recalled saying to the Applicant words to the effect of: “We need to be really conscious of how we treat our clientele. The organisation was created by the stolen generation and we have to uphold their values”.
Regarding the ‘investigation’, Ms Rosas stated that the investigation was an informal investigation conducted by herself.
Ms Rosas stated that this informal investigation involved her reviewing complaints referred to in her First Statement. Ms Rosas stated that while she had said in an email to the Applicant that the ‘complaints should have been raised with her at the time’, they were raised to Ms Rosas by employees when they were sick of the Applicant’s behaviour and were threatening to leave. Ms Rosas stated that she had no choice but to consider those complaints.
Regarding payment to the Applicant following her termination, Ms Rosas stated that they paid to the Applicant the required 3 weeks’ notice of termination.
Consideration
I have taken into account all of the submissions that have been provided by the parties and I have attached the appropriate weight to the evidence of the witnesses.
It is not in dispute, and I find, that the Applicant is protected from unfair dismissal, submitted her application within the statutory timeframe and was not made genuinely redundant.
Jurisdictional objection
The Respondent has raised a jurisdictional objection on the basis that they are a small business and complied with the Code. However, for the Respondent to rely on the Code, they must comply with its provisions.
In Shaw v Pat Thomas Memorial Community House Inc[2012] FWA 8303 (Shaw), Williams C made the following observation:-
“[95]Even if these reasons were valid reasons for dismissal the Applicant had been denied procedural fairness by the Respondent in that prior to being handed the letter of termination there had been no discussion with her about the supposed failure to follow a written direction or that her actions could be seen as an attempt to undermine the authority of the Executive Officer. In fact there were no discussions at all with the Applicant about any of these matters prior to the Respondent taking the decision to dismiss the Applicant. The letter of termination was delivered to the Applicant as a fait accompli.
The Small Business Fair Dismissal Code
[96]To comply with the Small Business Fair Dismissal Code there must be a valid reason based on employees conduct or capacity and the employee must be warned that he or she risks being dismissed if there is no improvement and the employee must be given an opportunity to respond to the warning and given a chance to rectify the problem. None of these requirements were met and consequently the dismissal of the applicant was not consistent with the Small Business Fair Dismissal Code.”
Similarly in this case, the Applicant was never warned that she was at risk of being dismissed if there was no improvement in her performance.
I accept that the Code allows for verbal warnings to be provided to employees, as do informal communications (see Puri v Sydney Strata Pty Ltd[2012] FWA 7317). I accept the evidence of Ms Rosas that she made a number of comments to the Applicant that she deemed to be warnings. However, I do not accept the submission from the Respondent that, as a result of this repetitive verbal feedback from Ms Rosas, it should have been evident to the Applicant that her employment was at risk. The Code is quite specific. The Respondent had a statutory obligation to warn the Applicant that she was at risk of being terminated if her performance did not improve. It is not in dispute that this specific warning was not given to the Applicant. Relevantly, at the Hearing, the Applicant questioned Ms Rosas about the failure to raise concerns with her in her performance review:
“MS LAVERY: The response to the - an action plan was drafted by you, on that same day, following the appraisal interview, correct? Yes? And that's attached - - -?‑‑‑Sorry, repeat the question, please?
An action plan was drafted by you following the appraisal interview of 6 September '23, that same day?‑‑‑Yes.
It was signed by you?‑‑‑Yes.
And is it the document that's attached at page 219 of the digital book?‑‑‑Yes.
So that's your response to the - the preparation form for the appraisal, they were questions that I completed that - I'm asking too long a question. All right. So that is in response to what the action plan is, following the appraisal interview, the performance appraisal, yes?‑‑‑Yes.
And in that, on that page, it says:
Dear Priscilla Lavery,
During the discussion, reviewing your performance on 6 September 2023, we each agreed to commit to an action plan at the effectiveness of your role within the company.
And it has:
I agree to offer training in first aid and purchase of a mobile phone, Telstra.
Yes?‑‑‑Yes.
And no concerns were raised in that appraisal at all, were they?‑‑‑No.”[2]
(My emphasis)
I have taken this into account.
I agree with the reasoning in Shaw. The Respondent had an obligation to warn the Applicant that her employment was at risk if her performance did not improve. This did not occur. For this reason, I am satisfied and find that the Respondent has failed to comply with the Code.
Based on the failure of the Respondent to comply with the Code in the manner described above, the Respondent’s jurisdictional objection is dismissed.
Jurisprudence
When considering whether a termination of an employee was harsh, unjust or unreasonable, the oft-quoted joint judgement of McHugh and Gummow JJ in Byrne v Australian Airlines (Byrne)[3] is of significance:
“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”
In analysing Byrne, a Full Bench of the Australian Industrial Relations Commission in Australian Meat Holdings Pty Ltd v McLauchlan (AMH)[4] held:
“The above extract is authority for the proposition that a termination of employment may be:
· unjust, because the employee was not guilty of the misconduct on which the employer acted;
· unreasonable, because it was decided on inferences which could not reasonably have been drawn from the material before the employer; and/or
· harsh, because of its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct”.
Further, a Full Bench of the AIRC in King v Freshmore (Vic) Pty Ltd[5] said:
“[24] The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination”.
.
I now turn to the criteria for considering harshness as provided in s.387 of the Act.
Section 387(a) - Valid Reason
The meaning of the phrase “valid reason” has been universally drawn from the judgement of Northrop J in Selvachandran v Peteron Plastics Pty Ltd:[6]
“In broad terms, the right is limited to cases where the employer is able to satisfy the Court of a valid reason or valid reasons for terminating the employment connected with the employee’s capacity or performance or based on the operational requirements of the employer. …
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 reason 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 each treated fairly…”.
In Rode v Burwood Mitsubishi,[7] a Full Bench of the Australian Industrial Relations
Commission held:
“… the meaning of s.170CG(3)(a) the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts. It is not sufficient for an employer to simply show that he or she acted in the belief that the termination was for a valid reason.”
In Qantas Airways Ltd v Cornwall (Cornwall)[8] the Full Court of the Federal Court of Australia said:
“The question is whether there was a valid reason. In general, conduct of that kind would plainly provide a valid reason. However, conduct is not committed in a vacuum, but in the course of the interaction of persons and circumstances, and the events which lead up to an action and those which accompany it may qualify or characterize the nature of the conduct involved.”
(My emphasis)
At the Hearing, the Respondent withdrew the issue of the Applicant failing to sign her new employment contract as a reason for the Applicant’s termination:
“THE COMMISSIONER: Mr Pararajasingham, are you pressing this issue about the not signing of the - - -
MR PARARAJASINGHAM: No, we're not, Commissioner. We've made clear, in both the applicant - both Ms Rosas's statement as well as the submissions. This is not, of course, a general protections application. We are required to advance a reason, you are then required to determine whether that is sufficient to amount to dismissal. The reasons we've made clear is about complaint and dealing with community members, clients and staff. That is the entirety of this case, Commissioner. So I think, in that regard, the applicant has made a point that there was a discord, seemingly, about the nature of the new contract and what its precise terms ultimately were. It doesn't really turn on anything and can I suggest, Commissioner, it also doesn't turn, even if we get to a position whereby you find against the respondent and you're minded to order compensation because a contract wasn't entered into so it's not binding on the parties, and wouldn't provide any assistance in that regard.”[9]
I have taken into account that the Applicant’s sole performance appraisal in the 16 months of her employment on 6 September 2024, does not contain any negative comments about the Applicant’s performance or any identified areas of improvement. This is surprising on the basis that the Applicant had allegedly been “informally warned” by Ms Rosas about her performance on a number of occasions prior to the performance appraisal process.
I note that no complaints from any ‘community’ members have been tabled in these proceedings. The only complaints are verbal complaints that have been made to, and articulated by, Ms Rosas. I have taken this into account.
Section 387(b) - Notified of the Reason
The Applicant was notified of the reasons for her dismissal in very broad and unspecific terms on 17 January 2024. I have taken this into account.
Section 387(c) - Opportunity to Respond
Despite enquiring about the nature of any complaint or the timing of those complaints, the Respondent refused to provide any particulars to the Applicant during the investigation or termination process. The Applicant certainly wasn’t given an opportunity to respond to any allegation prior to her termination. I have taken this into account.
Section 387(d) - Any refusal of a support person
There were no formal meetings ahead of the Applicant’s dismissal, and therefore no refusal of a support person by the Respondent. I have taken this into account.
Section 387(e) - Unsatisfactory performance
The Applicant was not dismissed due to her output or performance at work. There are no allegations that the Applicant was incompetent or incapable of performing her role. I have taken this into account.
Section 387(f) - Size of Employer
It is not in dispute that the Respondent is a small business. I have taken this into account.
Section 387(g) - Dedicated HR specialists
It is not in dispute the Respondent does not employ any HR specialists, but that it sought HR advice regarding the Applicant’s stand down and dismissal. I have taken this into account.
Section 387(h) - Any other matter
I am not satisfied that the Applicant is insensitive to the cultural requirements of her role. The Applicant testified that she had been the foster carer for two young Aboriginal children for a period of 2 years. Further, that her father and grandfather were both removed from their family as children in New Zealand. In relation to the Applicant regularly contacting an elder, the Applicant testified that she was not initiating those calls and that she only ever returned the calls from the elder. I have taken this into account.
However, the Applicant does have some personality traits that some people may find distressing or disturbing. Even allowing for the fact that the Applicant may have been nervous at appearing in the Commission and not having a support person present, the Applicant admitted that she talks too much. I agree. Further, the Applicant has an unfortunate habit of interrupting people when they are talking. On numerous occasions throughout the proceeding, despite being cautioned about the practice, the Applicant spoke over or interrupted the witness. The Applicant even did this to me on a number of occasions. Ms Hunter testified that this type of behaviour was commonly displayed by the Applicant at work, including in the community. I have taken this into account.
I have taken into account that the Applicant was not given an opportunity to improve her conduct at work. The Applicant received generalised and verbal warnings, some of which applied to the whole team. Not once was the Applicant advised that she was at risk of losing her job.
The Applicant claimed that she was the subject of collusive conduct from her peers in a concerted attempt to remove her from the Respondent. The filing of complaints and the writing of diary notes appears to be very convenient. The fact that diary entries were made weeks and months after an event, diminished their evidentiary value. Further, the fact that employees would send their diary notes or complaints to each other for checking an amendment prior to these complaints being submitted to the CEO, is dubious behaviour. However, there is no suggestion that the CEO, Ms Rosas, was complicit in this behaviour. I have taken this into account.
The Respondent argued that they were entitled to a “fair go”. I agree, but so is the Applicant. I have taken this into account.
There is no doubt that the Applicant is an intelligent woman. She is legally qualified and possesses a Practising Certificate. She has a very good memory and a sharp mind. An unfortunate trait, undoubtedly obtained from her legal training, is her propensity to talk over people if she doesn’t agree with what they are saying. This aspect of the Applicant’s personality has undoubtedly resulted in the Applicant appearing to be arrogant and rude. I’m not convinced that this description is accurate or fair. I have taken this into account.
Conclusion
The Applicant submitted that the complaints made against her by her peers were trivial. I agree. The fact that the Applicant may have been rude or assertive in using a booked meeting space or by taking the only made-up room at a motel is not grounds for termination. It may display a characteristic in the Applicant’s character that some people may find offensive, but it is not a valid reason to terminate the Applicant’s employment.
However, if the Applicant’s conduct when dealing with clients in the community was disrespectful or insensitive, then such behaviour would provide the Respondent with a valid reason to terminate the Applicant, but only after a concise warning had been given, appropriate training had been provided and the Applicant had been given an opportunity to improve her performance. This did not occur.
I am satisfied and find that the Respondent did not have a valid reason to terminate the Applicant. Further, I am satisfied and find that the Applicant was not afforded her statutory entitlement to procedural fairness. The Applicant did not receive a “fair go”.
For the reasons identified above, I find that the Applicant’s termination was harsh and unreasonable.
I find that the Applicant has been unfairly dismissed.
Remedy
Having found that the Applicant has been unfairly dismissed, I now turn to the issue of an appropriate remedy.
The relevant provisions of the Act in relation to a remedy for an unfair dismissal are:
“390 When the FWC may order remedy for unfair dismissal
(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:
(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) The FWC may make the order only if the person has made an application under section 394.
(3) The FWC must not order the payment of compensation to the person unless:
(a) the FWC is satisfied that reinstatement of the person is inappropriate; and
(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.
Note: Division 5 deals with procedural matters such as applications for remedies.”
“391 Remedy—reinstatement etc.
Reinstatement
(1) An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:
(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or
(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.
(1A) If:
(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and
(b) that position, or an equivalent position, is a position with an associated entity of the employer;
the order under subsection (1) may be an order to the associated entity to:(c) appoint the person to the position in which the person was employed immediately before the dismissal; or
(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.
Order to maintain continuity
(2) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to maintain the following:
(a) the continuity of the person’s employment;
(b) the period of the person’s continuous service with the employer, or (if subsection (1A) applies) the associated entity.
Order to restore lost pay
(3) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.
(4) In determining an amount for the purposes of an order under subsection (3), the FWC must take into account:
(a) 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 reinstatement; and
(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.”
“392 Remedy—compensation
Compensation
(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.
Criteria for deciding amounts
(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:
(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that the FWC considers relevant.
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.
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.
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.
(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.”
The Applicant seeks compensation for the entirety of her contract, some 141 weeks. The FW Act only allows for the Commission to grant a maximum of 26 weeks. In its verbal submissions, the Respondent suggested that, if the Commission were to find that the Applicant had been unfairly dismissed, a compensation payment of 3 weeks would be appropriate. I have taken this into account.
Section 392(2)(a) – effect of order on employer’s viability
The Respondent is a not-for-profit organisation, reliant solely on government funding. The Applicant’s position was vacant for some 14 weeks before a new employee was engaged. Under cross-examination, Ms Rosas indicated that she had not refunded any grant money during this period of time, therefore, there is some capacity to pay the Applicant an appropriate amount of compensation. I have taken this into account.
Section 392(2)(b) – length of service
The Applicant was employed for a period of 16 months. I have taken this into account.
Section 392(2)(c) – remuneration received if not dismissed
The Applicant would have been entitled to receive her ongoing weekly wage, as per her employment contract. I have taken this into account.
Section 392(2)(d) – effort to mitigate loss
The Applicant has only applied for 1 job since her termination. The Applicant advises that she has simply not been well enough to find another job. It is evident that the Applicant is suffering from a great deal of stress and appears to have lost her self-confidence at the time of the Hearing. I have taken this into account.
Section 392(2)(e) – amount of remuneration received by the Applicant
The Applicant has not received any remuneration from any employment source since her termination. I have taken this into account.
Section 392(2)(f) – amount likely to be earned
The Applicant is currently unemployed and therefore no income is likely to be earned in the period between the Hearing and this decision. I have taken this into account.
Section 392(2)(g) – any other matter
I am also required to have regard for the criteria known as the ‘Sprigg formula’ which emanates from the Full Bench decision in Sprigg v Paul’s Licensed Festival Supermarket.[10] This approach was articulated in the context of the FW Act in Bowden v Ottrey Homes Cobram and District Retirement Villages.[11]
The approach in Sprigg is as follows:
Step 1: Estimate the remuneration the employee would have received, or have been likely to have received, if the employer had not terminated the employment (remuneration lost).
Step 2: Deduct monies earned since termination. Workers’ compensation payments are deducted but not social security payments. The failure of an applicant to mitigate his or her loss may lead to a reduction in the amount of compensation ordered.
Step 3: Discount the remaining amount for contingencies.
Step 4: Calculate the impact of taxation to ensure that the employee receives the actual amount he or she would have received if they had continued in their employment.
In Hanson Construction Materials v Pericich,[12] a Full Bench of the Commission held that:
“[39]...Sprigg is a useful servant, but is not to be applied in a rigid determinative manner. In deciding the amount of a compensation order the Act directs that the Commission ‘must take into account all of the circumstances of the case’ including the particular matters set out at s.392(2)(a)to(g).”
I have taken this into account.
Conclusion
Based on the criteria identified above, and taking into account the Sprigg formula, I have decided that the Applicant’s employment would have only lasted for another 7 weeks. During this period of time, I have assumed that the Applicant would have been given a formal warning and that appropriate procedural fairness would have been afforded to the Applicant. I am not convinced that the Applicant was well suited to the role in which she was employed. Her legal skillset and competencies exceed those required for her former role, however, this role required patience and a unique communication mindset. I am satisfied that her career at the Respondent would have been short lived.
I order that the Respondent pay to the Applicant 7 weeks’ pay plus superannuation.
I so Order.
COMMISSIONER
[1] Shaw v Pat Thomas Memorial Community House Inc[2012] FWA 8303.
[2] Transcript at PN170-181.
[3] (1995) 185 CLR 410.
[4] (1998) 84 IR 1.
[5] [2000] AIRC 1019.
[6] (1995) 62 IR 371.
[7] PR4471.
[8] (1998) 84 FCR 483.
[9] Transcript at PN162-163.
[10] (1998) 88 IR 21.
[11] [2012] FWCFB 431.
[12] [2018] FWCFB 5960.
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