Ms Raelene Soukoulis v Del-Re National Food Group Pty Ltd

[2016] FWC 1815

[2016] FWC 1815 [Note: An appeal pursuant to s.604 (C2016/3607) was lodged against this decision.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ms Raelene Soukoulis
v
Del-Re National Food Group Pty Ltd
(U2015/12408)

COMMISSIONER GREGORY MELBOURNE, 12 APRIL 2016

Application for relief from unfair dismissal.

Introduction

[1] Ms Raelene Soukoulis commenced working with the Del-Re National Food Group Pty Ltd (“Del-Re”) on 25 February 2013. She was employed as a Customer Sales Representative and also looked after reception when the Receptionist was on annual leave.

[2] On 25 September 2015 Ms Soukoulis was late arriving for work and was subsequently involved in a discussion with two of the Directors of the business. Ms Soukoulis submits that in those discussions her employment was terminated with effect from 9 October 2015.

[3] However, Del-Re submits, in response, that Ms Soukoulis was not terminated, but decided to resign, telling the Directors she was looking for a job with less stress and more flexible working hours. It has therefore raised a jurisdictional objection to the application, namely that Ms Soukoulis has not been dismissed.

[4] Mr A. Dirks from Just Relations was granted permission to appear on behalf of Ms Soukoulis. Mr Mark McKenny of Counsel was granted permission to appear on behalf of Del-Re.

The Issues to be Determined

[5] Section 385, “What is an unfair dismissal,” of the Fair Work Act 2009 (Cth) (“the Act”) relevantly provides:

“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” 1.

[6] Section 386, “Meaning of dismissed,” continues to relevantly provide:

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative;” 2

[7] Del-Re submits Ms Soukoulis was not “terminated on the employer’s initiative,” as required by s.386(1), because she resigned and therefore she cannot have been unfairly dismissed.

[8] Ms Soukoulis rejects this view and submits she was dismissed in the meeting that took place on 25 September 2015.

[9] Therefore, the first issue to be determined is whether Ms Soukoulis “has been dismissed,” in terms of s.385(a) of the Act. If it is found that she has not been “dismissed,” then the application must also be dismissed.

[10] However, if she is found to have been dismissed then the Commission must determine whether her dismissal was “harsh, unjust or unreasonable.” In this context the Act requires that the Commission must take into account the various considerations in s.387. It states as follows:

“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.” 3

The Evidence and Submissions

[11] Del-Re submits Ms Soukoulis indicated her intention to resign in a meeting on 25 September 2015 that occurred after she arrived late for work that day. However, it submits she was then advised to take some time to consider her decision, which she did over the following weekend. It continues to submit she then confirmed her intention to resign on the following Monday, and confirmed that her last day at work would be Friday, 9 October. It also submits an Employment Separation Certificate, which was then provided to her indicating she was terminated due to a “shortage of work,” was filled out incorrectly.

[12] Mr Mark Delre is a Director and the General Manager of the Del-Re National Food Group and has been with the business since it was established in 2004.

[13] He said he and another Director, Mr Robert DiMartino, met with Ms Soukoulis after she arrived at work on Friday, 25 September. He said this occurred after Mr DiMartino apparently saw Ms Soukoulis in the foyer when she arrived and suggested they meet in his office. However, when they came upstairs Mr Delre suggested they both meet in his office. He said he and Mr DiMartino initially raised concerns about Ms Soukoulis health and welfare as they were aware of some issues she had been dealing with in her personal life, due to some earlier incidents. He said these concerns were heightened on that morning when nothing had been heard from Ms Soukoulis after she had not arrived at work on time.

[14] He said Ms Soukoulis indicated in the discussions she was stressed and under pressure. He said she also indicated she was looking to move to a less stressful position that involved more flexible working hours, including the possibility of part-time work. He also said Ms Soukoulis indicated she was on medication for her knee injury, and this had caused her to sleep through her alarm that morning. He said he had been concerned about her health and welfare for some time and the business was trying to assist her work through these issues. He denied Ms Soukoulis was told not to speak about what had been discussed. He said it was then agreed she would meet with Mr DiMartino on the following Monday, 28 September, to continue the discussions.

[15] He said Mr DiMartino subsequently told him what had been discussed and agreed to in the meeting on Monday in terms of Ms Soukoulis confirming her decision to resign, and what had been agreed as to her last day at work. She was to finish up in two weeks with her last day at work being Friday, 9 October. It was also agreed she was free to pursue any other job opportunities or interviews during this time. He said he understood Ms Soukoulis took up this opportunity on at least four occasions in the following two week period. He also said he subsequently asked the then HR Administrator to ask Ms Soukoulis whether she would be interested in any further part-time work with the business in the future.

[16] He said Ms Soukoulis’ position then remained vacant for a period of six weeks until it was finally filled in late November. He also said the Employment Separation Certificate was filled out incorrectly by the HR Administrator when it indicated “shortage of work,” because the business was actually very busy at that point.

[17] Mr Delre denied in cross-examination that he told Ms Soukoulis in the discussions on 25 September her attendance record at work had been “terrible.” 4 He said his enquiries about why she had arrived late for work were only made in the context of wanting to discuss whether this was related to the personal issues she was dealing with.

[18] However, Mr Delre subsequently acknowledged in cross-examination that Ms Soukoulis did not actually make reference to being stressed or under pressure in the discussions on 25 September, but instead made reference to wanting to “move on” and work elsewhere, perhaps with her partner in his business on a part-time basis. 5 Mr Delre also indicated in cross-examination he had not been made aware of the issues raised by Ms Soukoulis about the behaviour of another director, Mr Ricky Delre, and this had not been brought to his attention by the HR Administrator, or by anyone else.

[19] Mr Robert DiMartino is also a Director of Del-Re as well as being the Commercial Manager. He said that on 25 September, after Ms Soukoulis had not arrived at work on time, and no explanation had been provided for her absence, he arranged for another staff member to attempt to contact her by phone. He said that when she then arrived he saw her in the foyer and suggested she come upstairs to discuss what had happened, and whether the business could assist her in any way. He said that after going upstairs Mr Mark Delre saw them and suggested they meet in his office. Mr DiMartino said he agreed with this suggestion as it provided more privacy.

[20] Mr DiMartino also provided some clarification about the content of his original witness statement in his oral evidence by indicating that the meeting with Ms Soukoulis on 25 September was not prearranged, but occurred after they both happened to meet when she arrived at work.

[21] He said Ms Soukoulis told them she was felt stressed and under pressure. He said she then indicated she intended to resign in order to look for work elsewhere, including the possibility of working with her partner. He also said she talked about the possibility of a part-time position that might provide more flexible working hours. He said he told her in response she continued to have a job at Del-Re, and she should take time to consider her decision before confirming what she wanted to do.

[22] He said it was then agreed she would take time over the weekend to consider her decision and he then met with her again on the following Monday, 28 September, when she confirmed her intention to resign and said she would work out a two week notice period. He said he agreed with this proposal. It was also agreed she could pursue any job opportunities or job interviews during that two week period. He said he then had a further discussion with her on 8 October in which she indicated she had not yet found other work. He said he again told Ms Soukoulis there was no requirement for her to finish up on the following day, however, she confirmed her intention to leave. He also said she had since been offered part-time employment with the business.

[23] He also said the Employment Separation Certificate, which had been completed by the HR Administrator, was incorrectly filled out as Ms Soukoulis had not left her employment due to a “shortage of work.” The business was, in fact, very busy at the time and Ms Soukoulis’ position had subsequently been filled.

[24] However, Mr DiMartino also acknowledged in cross-examination that Ms Soukoulis had not actually used the word “resign” in her discussions with the two Directors, but did say she intended to move on, and was leaving to find other work “that suited her,” nominating 9 October as her final day at work. 6 He also said that the discussions were generally amicable, and it was not considered necessary to obtain confirmation of Ms Soukoulis’ resignation in writing.

[25] Del-Re refers, in conclusion, to the decision in O’Meara v Stanley Works Pty Ltd 7 in support of its submission that for the Commission to find an Applicant has been unfairly dismissed it must first be satisfied there has been a termination of employment at the initiative of the employer. It submits this requires some action on the part of the employer that it intended to bring the employment relationship to an end, or to have the probable result of doing so. In its submission the evidence makes clear it was Ms Soukoulis who initiated the discussions about leaving her employment to pursue other opportunities, apparently in recognition of the stress and pressure she was under.

[26] Del-Re also rejects any suggestion Ms Soukoulis was pressured or forced to resign. It points to the evidence of the Directors that after Ms Soukoulis indicated her intention to resign they urged her to take time to consider her position before making a final decision. It submits the Directors then made further enquiries about whether she had been able to obtain another job before leaving her employment. It also submits the subsequent text message sent to her enquiring about whether she was working, and whether she was available to take on further part-time work at Del-Re, provide further evidence it was not seeking to end the relationship.

[27] It also submits the Commission should place little reliance on the Employment Separation Certificate. It submits this was completed by someone who had no direct involvement in the matter, and the document is often completed in a certain way to attempt to assist employees access certain entitlements and other benefits.

[28] Del-Re accordingly submits, in conclusion, that Ms Soukoulis has not been unfairly dismissed as there has been no termination at the initiative of the employer and, therefore, its jurisdictional objection should be upheld and the application dismissed.

[29] Ms Soukoulis states in response that in the middle of last year she injured her knee in an accident at home, and this caused her to require time off work on various occasions. This amounted to around four weeks in total. Ms Soukoulis said that during this period the attitude of one of the Directors, Mr Rick Delre, changed and he became aggressive and hostile toward her. She said on one occasion he directed her to pick up cigarette butts in an outside courtyard, despite being aware of her knee injury, and this caused her knee to become further inflamed. She said he also spoke to her in a threatening manner at times, and told her he was watching her.

[30] Ms Soukoulis said that on 25 September she arrived late for work as she had slept in because of the medication she was taking. She said when she finally arrived she was directed to attend a meeting with two of the Directors, Mr Mark Delre and Mr Robert DiMartino. She said Mr Delre told her in the meeting her attendance had been “terrible” and “this can’t go on.” 8 She said he then told her she should start to look for work elsewhere, and when she asked “How long do I have?” he checked the calendar on his computer and told her she would be finishing in two weeks, with her last day being Friday, 9 October.9 She then asked both Directors if they wanted her to leave immediately, but was told no. She said she was then told by Mr Delre she should now take the weekend to relax and a plan would be confirmed with her on Monday in regard to the finalisation of her employment. She said she was also told not to discuss the situation with anyone.

[31] She said that on the following Monday, 28 September, she was provided with the Employment Separation Certificate by the HR Administrator, Ms Thompson. It indicated she had been dismissed due to “shortage of work,” and specified a finish date of 9 October. She said she then worked out the remaining two weeks and finished work on 9 October.

[32] Ms Soukoulis denies having ever expressed any intention to resign in the discussions with the Directors, or making any statements about obtaining work elsewhere with either her partner or with any other employer.

[33] She also indicated in cross-examination that in the discussions on 25 September it was the two Directors, and not her, who suggested she started looking for other work elsewhere. She also said she had not indicated at any time that she was leaving because she was stressed or under pressure at work. She said the discussions in the meeting had begun with enquiries about whether she was “okay,” but then turned to deal with her ending her employment. She said she did not want to leave, and never gave any indication of an intention to do so. She said, “If anything, I couldn’t believe what I was hearing.” 10 She also said the job was her “income” and she had no reason to leave.11 She did, however, acknowledge she had previously had some personal issues, which caused her to be absent from work on occasions, and the business had in the past been supportive of her.

[34] Ms Soukoulis also acknowledged that Mr DiMartino told in the discussions on 25 September to “think about it over the weekend,” but any further consideration in this context was only ever about confirming when her last day at work would be. 12 She also said she was told she was free to pursue other job opportunities during her last two weeks at work, which she did. This included a telephone appointment with Centrelink.

[35] Ms Soukoulis also said she was never told she was not required to leave. She denied any offer of future part-time work was made to her. She also said that after the discussions on 25 September she spoke with the HR Administrator, who then called her again later in the day, and told her she should get in contact with Centrelink immediately because of the delay in obtaining benefits.

[36] The submissions provided on behalf of Ms Soukoulis continue to deal with the various matters in s.387 that the Commission must have regard to in dealing with an unfair dismissal claim. Ms Soukoulis submits, firstly, that there was no valid reason for her dismissal related to her capacity or conduct. She continues to submit the apparent reason for her dismissal concerns issues to do with her attendance at work, however, those absences were a direct result of the previous injury she had sustained and she had, on all occasions, provided medical certificates to support those absences.

[37] She also submits that even if those issues were found to constitute misconduct the decision to dismiss her was at the very least a disproportionate response, and did not warrant more than a warning.

[38] Ms Soukoulis also submits in response to the other considerations in s.387 that are relevant to this matter, that she was not notified of any valid reason for her dismissal, and she was not given an opportunity to respond. She was also not provided with the opportunity to have a support person present in the meeting on 25 September.

[39] She submits, in conclusion, that she was dismissed by Del-Re in the meeting on 25 September and her dismissal, in all the circumstances, was harsh unjust and unreasonable.

Consideration

[40] The evidence relied upon by the parties in regard to the jurisdictional objection raised by Del-Re provides a stark contrast. Del-Re, firstly, relies on the evidence of two of its Directors, Mr Mark Delre and Mr Robert DiMartino.

[41] The evidence of both is that the business had in the past been supportive of Ms Soukoulis as she dealt with some issues in her personal life. This was not disputed by Ms Soukoulis. On 25 September when she had not arrived at work, and nothing had been heard from her, the evidence of the Directors is that they were concerned for her welfare. When she finally arrived and encountered Mr DiMartino he suggested she come upstairs to talk about what had happened. Mr Delre then joined the discussions. The evidence of the Directors, as contained in their witness statements, is that Ms Soukoulis said she was stressed and under pressure and had decided, as a consequence, to look for work elsewhere, possibly in a business with her new partner.

[42] The Directors said they indicated in response that Ms Soukoulis did not have to leave, and should take time to consider her position. Mr DiMartino said he remained in contact with Ms Soukoulis until her last day at work on 9 October. The Directors’ evidence also dismisses the content of an Employment Separation Certificate provided to her on 28 September, indicating the reason for her termination was “shortage of work.” Their evidence is that this form was completed by an HR Administrator, who is no longer employed by the business, and had no authority or awareness of the situation at the time she completed the form and gave it to Ms Soukoulis.

[43] However, the Directors also acknowledged in cross examination that Ms Soukoulis had never used the word “resign” in her discussions with them on 25 September, but had indicated instead she wanted to leave and move on. They also acknowledged she might not have made reference to feeling stressed and under pressure at work as the reason for wanting to leave. Their evidence was also conflicting in some other aspects, particularly about who was present in meetings and other discussions on different occasions.

[44] As indicated, the evidence of Ms Soukoulis is in stark contrast to that of the Directors. She acknowledges that in the discussions on 25 September they initially enquired about whether everything was okay. However, she said the discussions quickly turned to her being told her employment with Del-Re was ending, with Mr Mark Delre checking the calendar on his computer to confirm her last day at work would be 9 October.

[45] Ms Soukoulis’ evidence is that she had no intention of resigning her employment, and she relied on the income from the job to support herself and her son. She denied saying she felt stressed and under pressure at work, and this was the reason why she wanted to leave. She also denies she was encouraged to remain at work until she was able to find work elsewhere, and says she was never offered the opportunity of part-time work with the business at some point in the future. She also made reference to her discussions with the HR Administrator, who appeared surprised by what had occurred, and said it appeared she had been given notice of termination. Ms Soukoulis’ evidence is that the HR Administrator then did what she could to assist her to obtain benefits from Centrelink until she was able to find work elsewhere. The actions of the HR Administrator in providing Ms Soukoulis with the Employment Separation Certificate on 28 September, after Ms Soukoulis had told her what had happened in the meeting on 25 September, are also consistent with Ms Soukoulis’ understanding that she had been dismissed.

[46] In summary, Ms Soukoulis’ evidence is unequivocal about what occurred in the discussions on 25 September, and in the days that followed. It indicates it was made clear to her in those discussions that her employment at Del-Re was at an end, and when her last day at work would be.

[47] By contrast the evidence of the Directors is not as clear and consistent. Both clarified the statements contained in their written witness statements in which they indicated Ms Soukoulis had said she was going to “resign” or was “resigning” in the discussions on 25 September. Both subsequently acknowledged that Ms Soukoulis had not specifically used the word “resign”, but rather had indicated an intention to move on and look for work elsewhere. Both also acknowledged that the references in their witness statement to Ms Soukoulis indicating she was under pressure and stress at work were again not words that Ms Soukoulis had used. Further clarification was also provided in regard to other aspects of the written witness statements provided by each Director.

[48] The explanation provided by the Directors about the Employment Separation Certificate given to Ms Soukoulis on 28 September is accepted and acknowledged. However, as indicated it appears the HR Administrator, who provided the document to Ms Soukoulis, understood she had been dismissed, given what she had been told by Ms Suokoulis about the outcome of the meeting on the previous Friday.

[49] The evidence also provides a possible explanation about why Del-Re might want to terminate Ms Soukoulis’ employment, given she had been absent from work on a number of occasions, apparently amounting to a total of approximately four weeks. In this context it is noted that Ms Soukoulis states that she was told in the meeting on 25 September that her attendance record was “terrible,” although it is acknowledged Mr Delre denies making this statement.

[50] By way of contrast it is difficult to understand why Ms Soukoulis would want to resign, given her evidence about the job providing the necessary income to support her and her son, particularly in circumstances where she had no other job to go to. This situation appears to be confirmed by the fact her evidence indicates she only obtained further employment just prior to the hearing, after being out of work for approximately five months. This again raises an issue about why she would have resigned in circumstances where it appears she had no other job to go to at the time.

[51] However, it is acknowledged that the evidence also indicates the business had been supportive of Ms Soukoulis in the past in terms of issues she was dealing with in her personal life. However, the fact Ms Soukoulis again arrived late for work on 25 September, without getting in contact to indicate she would not be at work on time, perhaps created a situation where that support had been exhausted, and a different approach was decided upon.

[52] Mr DiMartino also provided clarification in his oral evidence to indicate that the content of his written witness statement was not correct when it stated that the meeting on 25 September had been arranged in advance. However, the fact he happened to meet with Ms Soukoulis when she eventually arrived at work on that day, and then asked her to meet with him upstairs, and then Mr Delre suggested they all meet in his office, indicates that some premeditation might have occurred in regard to this meeting.

[53] Ms Soukoulis’ evidence also indicated that another director, Mr Rick Delre, had in more recent times displayed an aggressive attitude toward her. She made reference to being required by him to pick up cigarette butts from an outside courtyard area, despite being hampered by her knee injury. The evidence of the other Directors was that they were not aware of this situation, however, no evidence was provided to contradict or take issue with the evidence provided by Ms Soukoulis about this, or whether the attitude of Mr Delre might have contributed to the decision to terminate her services.

[54] In conclusion, after reviewing the evidence I consider relevant to the jurisdictional objection raised by Del-Re I am not satisfied that it establishes Ms Soukoulis resigned from her employment. I am satisfied instead that the evidence indicates, on the balance of probabilities, that her employment was terminated at the initiative of Del-Re. It follows that the jurisdictional objection is dismissed.

[55] Having concluded that Ms Soukoulis was dismissed at the initiative of the employer I now turn to consider whether her dismissal was “harsh, unjust or unreasonable” taking into account the considerations in s.387 that I must have regard to.

[56] I note, firstly, that an explanation about what forms of conduct might be encompassed within the phrase “harsh, unjust or unreasonable” was provided by the decision in Byrne & Frew v Australian Airlines Ltd 13 when McHugh and Gummow JJ stated as follows:

“…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.” 14

[57] The decision of the Full Bench of Fair Work Australia in the matter of L. Sayer v Melsteel Pty Ltd 15 also provides guidance about the Commission’s role in regard to each of the considerations in s.387. It concluded:

“Where the applicant does present a case, in the ordinary course each of the criteria in s.387 which is capable of being relevant on the facts emerging at the hearing must be taken into account.” 16

[58] I now turn to deal with each of those considerations in s.387.

(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);

[59] It does appear that Del-Re had some issues with Ms Soukoulis’ attendance record, and the evidence indicates she had a total of approximately four weeks off work on various occasions following the knee injury she sustained in the middle of last year. However, Ms Soukoulis says she provided medical certificates in respect of each of these absences. The evidence also indicates that on occasions she was required to leave work to attend to some other personal matters involving her son.

[60] She also indicates in her evidence that Mr Delre told her in the meeting on 25 September that her attendance record was “terrible,” however, Mr Delre denies making this statement.

[61] Clearly, her attendance at work was also an issue on 25 September last year when Ms Soukoulis was late for work, without explanation, and attempts were subsequently made to contact her.

[62] However, it is also noted that Ms Soukoulis submits that even if there is evidence of misconduct on her part it was not substantial enough to warrant her dismissal, and a lesser response, such as a warning, should have been provided.

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

[63] The evidence of Ms Soukoulis is that she was told in the discussions on 25 September by Mr Mark Delre that her attendance record at work was “terrible,” although he denies making this statement.

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

[64] The evidence of Ms Soukoulis is that in the discussions on 25 September she was told her employment at Del-Re was to come to an end and her last day at work would be Friday, 9 October. Ms Soukoulis said she did apologise in the meeting for being late, but there is no evidence indicating she was provided with an opportunity to respond to any reason related to her capacity or conduct.

(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;

[65] There is no evidence that Ms Soukoulis was provided with the opportunity to have a support person present in the discussions on 25 September, however, there is also no evidence of any unreasonable refusal to allow her to have a support person at the meeting.

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

[66] There is no evidence indicating that Ms Soukoulis was provided with any warnings prior to her dismissal.

(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;

[67] The evidence indicates Del-Re has around 50 employees and did have, at least at the time, a person employed as an HR Administrator. However, the evidence of the Directors is that they took a personal interest in their employees, and certainly in this matter it appears they were directly involved in the discussions with Ms Soukoulis about ending her employment.

(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;

[68] As indicated, the business did employ a HR Administrator, however, that person was not directly involved in the discussions about Ms Soukoulis’ termination.

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

[69] I am not aware of any further issues that need to be considered in this context.

Conclusion

[70] In dealing with the various matters in s.387 that I must take account of I note, firstly, that previous authorities have established that the existence or not of a “valid reason” is invariably an important issue in any unfair dismissal application, and is often determinative. For example, in the often cited decision of Parmalat Food Products Pty Ltd v Kasian Wililo 17 a Full Bench of the Commission made the following statement about the importance of “valid reason.”

“The existence of a valid reason is a very important consideration in any unfair dismissal case. The absence of a valid reason will almost invariably render the termination unfair. The finding of a valid reason is a very important consideration in establishing the fairness of a termination.” 18

[71] It is also clear that the reason must be objectively valid. It is not sufficient that the employer believes it had a valid reason for termination. This was emphasised in the Full Bench decision handed down by this Tribunal’s predecessor in the matter of Rode v Burwood Mitsubishi 19at paragraph 19 where the Full Bench held:

“....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.” 20

[72] As the decision in Selvachandran v Peterson Plastics Pty Ltd 21 also makes clear the reason should also be “sound, defensible and well founded” and should not be “capricious, fanciful, spiteful or prejudiced.”

[73] As indicated, it is unclear about what precisely led to the decision by Del-Re to end Ms Soukoulis’ employment, although it appears to relate to issues to do with her attendance. Ms Soukoulis states that on the recent occasions when she was unable to be at work it was because of the knee injury she sustained last year, and on each occasion when she was absent she provided a medical certificate to explain her absence.

[74] The evidence also indicates she was late for work on 25 September after she slept in. She says this was due to the medication she was taking for her knee injury. It is unclear whether there were any other occasions she was not at work on time.

[75] I am not satisfied that this evidence establishes the existence of a valid reason for her dismissal. Clearly, it is important that employees be at work on time. Ms Soukoulis’ absences from work because of her knee injury also appear to have been a source of frustration to her employer. However, in each case these appear to involve circumstances that should have been discussed and action agreed upon in response. They might also be circumstances that provided sufficient justification for a warning to be given. However, I am not satisfied that an objective analysis of the evidence relied upon in these proceedings provides justification for Ms Soukoulis’ dismissal from her employment.

[76] I am also not satisfied that Ms Soukoulis was properly notified of the reason for her dismissal, and given an opportunity to respond.

[77] Having considered each of the matters in s.387 that the Commission is required to take into account I am satisfied in all the circumstances that Ms Soukoulis’ dismissal was at least “harsh” and “unreasonable,” in that the evidence does not provide justification for her dismissal. In coming to this Decision I have had particular regard to the conclusions arrived at in respect of s.387(a) and (c). I am now required to have regard to the issue of what is an appropriate remedy in the context of the provisions contained in ss.390 and 392, in particular.

[78] However, I am also satisfied that the Commission is unable to come to a concluded view about what remedy is appropriate, based on the evidence and submissions previously provided in the proceedings. Both parties are accordingly directed to provide further written submissions dealing with these considerations. Ms Soukoulis is to file and serve her submissions and evidence by 18 April 2016. Del-Re is then to file and serve its submissions and evidence in response by 25 April 2016. One option will then be to determine the matter “on the papers,” based on those written submissions. However, if either party seeks the opportunity to make further oral submissions, or wants to cross examine the other party, the matter will be set down for a further hearing.

COMMISSIONER

Appearances:

Mr A Dircks of Just Relations appeared on behalf of the Applicant.

Mr M McKenny of Counsel appeared on behalf of the Respondent.

Hearing details:

2016.

Melbourne:

1 February.

Final written submissions:

Final written submissions of the Respondent were received on 8 February 2016, however these were objected to by the Applicant. The Commission decided it was not appropriate to take these further submissions into consideration.

 1   Fair Work Act 2009 (Cth) at s.385.

 2   Ibid at s.386

 3   Ibid at s.387

 4   Transcript PN108-PN109

 5   Ibid PN163

 6   Ibid PN325

 7   PR973462

 8   Exhibit JR1 at para 19-20

 9   Ibid para 22-27

 10   Transcript PN433

 11   Ibid PN436

 12   Ibid PN435

 13 (1995) 185 CLR 410

 14   Ibid at 465

 15   [2011] FWAFB 7498

 16   Ibid at para 20

 17   [2011] FWAFB 1166

 18   Ibid at [24]

 19  Print R4471, 11 May 1999

 20   Ibid at [19]

 21 (1995) 62 IR 371 at 373

Printed by authority of the Commonwealth Government Printer

<Price code C, PR578257>