Ms Stacie Noutsis v Through Road Child Care Association Inc T/A Through Road Kindergarten & Children's Centre
[2011] FWA 8816
•14 DECEMBER 2011
[2011] FWA 8816 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Stacie Noutsis
v
Through Road Child Care Association Inc T/A Through Road Kindergarten & Children's Centre
(U2011/10708)
COMMISSIONER ROE | MELBOURNE, 14 DECEMBER 2011 |
Termination of employment –summary dismissal- small business.
[1] The matter arises from an application filed on 12 August 2011 under s 394 of the Fair Work Act 2009 (the Act) by Ms Stacie Noutsis (the Applicant) for relief in respect to the termination of her employment from Through Road Child Care Association Inc T/A Through Road Kindergarten & Children’s Centre (the Respondent).
[2] Following an unsuccessful conciliation conference the matter proceeded to arbitration. The parties elected to proceed to a hearing on 9 December 2011.
[3] At the hearing the Applicant was represented by Ms E Tueno and the Respondent was represented by Mr J Forbes. I granted leave for them to appear.
[4] I am satisfied concerning the following matters which were not contested by the parties in proceedings:
- The Applicant was employed on a full time basis by the Respondent from 24 July 2007 until 5 August 2011.
- The Applicant had more than 12 month’s continuous service with the Respondent.
- The Applicant was dismissed at the initiative of the employer at a meeting on 5 August 2011 which was attended by the Applicant, her father, Ms Wetzel the Centre Director and Ms Leidler from the Committee of Management.
- The Children’s Services Award 2010 applied to the Respondent and the Applicant.
- The Applicant meets the requirements for protection from unfair dismissal set out in Sections 382, 383 and 384 of the Act.
- The termination was a summary dismissal without notice for serious misconduct. The Respondent paid one week’s ex gratia payment.
- The Respondent employed 14 persons at the time of the dismissal including the Applicant and hence the Respondent is a small business employer for the purposes of Sections 383 and 388 of the Act in particular.
- The Respondent purports to have dismissed the Applicant in accordance with the summary dismissal provision of the Small Business Fair Dismissal Code.
- The Respondent does not allege that there were any issues with the performance of the Applicant or that any warnings were issued to the Applicant prior to 1 August 2011.
- The dismissal solely relates to the actions of the Applicant in failing to return from annual leave on 2 August 2011. The Applicant was on approved annual leave in Bali. On Sunday 31 July 2011 the Applicant’s father Mr Noutsis advised Ms Wetzel the Director of the Respondent by telephone that the Applicant was unable to return to work from annual leave on Tuesday 2 August 2011 but would instead fly back from Bali arriving on Thursday 4 August and return to work on Friday 5 August 2011. The Respondent says that the responses of the Applicant at the termination meeting on Friday 5 August 2011 were also taken into consideration.
[5] Evidence for the Applicant was given by:
- The Applicant. 1
- The Applicant’s father, Mr Jim Noutsis. 2
- The Applicant’s sister in law, Ms Lucy Anne Noutsis. 3
[6] I also considered:
- The submissions of the Applicant including the written submissions. 4
- An employee performance appraisal of the Applicant conducted by the centre coordinator or director Ms Jodi Wetzel in February 2010. 5
- A list of employers where the Applicant had sought employment after the termination of employment. 6
- Pay slips from work with a child care relief work agency since the termination. 7
- Pay slips from work with the Respondent from 15 June to 26 July 2011. 8
- A separation certificate provided by the Respondent to the Applicant following the termination of employment. 9
[7] Evidence for the Respondent was given by:
- Ms Jodi Wetzel who has been the Director of the Respondent for the last five years and who was present at the meeting when the termination took place. 10
- Ms Sue Leidler who was Vice President of the Committee of Management for the Respondent for three years prior to the termination. Ms Leidler was present at the meeting when the termination took place and signed the letter of termination which was attached to her statement. 11
[8] I also considered:
- The submissions of the Respondent including the written submissions. 12
- A spreadsheet of the 14 employees including the Applicant paid by the Respondent for the week beginning 27 July 2011. 13
- A letter concerning employment conditions sent by Ms Wetzel to the Applicant dated 29 April 2010. 14
- An application for annual leave signed by the Applicant for the period 21 July to 1 August 2011 inclusive. 15
- A copy of the “annual and unpaid leave” policy extracted from the policy and procedures handbook of the Respondent. 16
- The relevant part of the Children’s Services Regulations 2009 which set out the child staff ratios and related qualification requirements under which the Respondent operates. 17
- Material concerning dismissal of employees provided to the Respondent by their employer organisation VECCI. 18
- An email sent by Ms Jodi Wetzel to the Applicant on 1 August 2011. 19
- An email sent by the Applicant thirty minutes later in response to the email of Ms Jodi Wetzel. That email was addressed to Jodi and the Committee. 20
- An email sent by Ms Jodi Wetzel on 3 August 2011 to the Applicant. 21
- A letter of termination signed by Ms Susan Leidler dated 5 August 2011. 22
The Evidence
[9] I am satisfied from the evidence that the sequence of events was as follows.
[10] On Friday 29 July 2011 the Applicant was enjoying her holiday in Bali. It was planned that the Applicant’s brother, sister in law (Lucy Noutsis) and their three year old son would leave Melbourne late afternoon on Friday 29 July and join her in Bali on Saturday 30 July 2011. The Applicant’s parents drove them to the airport and then left.
[11] The Applicant’s brother was not allowed to depart due to insufficient validity on his passport. The three year old was upset. The family faced the prospect of significant additional costs of flights and accommodation and some uncertainty about when the three might be able to travel together to Bali.
[12] There was some discussion by phone between the brother and the Applicant’s parents and a decision was made under time pressure that the sister in law and the child would travel as booked to Bali and that the brother would join them as soon as possible when the passport problem was resolved. The brother eventually was able to reach Bali late on Tuesday 2 August 2011.
[13] I was satisfied from the evidence that Lucy Noutsis and the Applicant’s father were particularly anxious about Lucy Noutsis and the young child being in Bali by themselves. They were also concerned about the costs and associated inconvenience if all parties decided not to fly. The Applicant’s parents felt that this was a serious situation and they changed the flights of the Applicant on the internet some time during the evening of Friday 29 July so that the Applicant could support Lucy Noutsis and her young child in Bali until the Applicant’s brother was able to join them.
[14] The Applicant was rebooked to return to Melbourne on the morning of Thursday 4 August.
[15] In her statement 23 the Applicant says that her brother rang to advise her of the situation but she clarified this during proceedings to confirm that it was her father that rang and that her brother was present and also participated in the conversation. The Applicant’s father confirmed this evidence. I am satisfied after considering all the evidence that this was what occurred.
[16] Mr Noutsis and the Applicant gave evidence that the conversation occurred sometime between 11pm Friday 29 July Bali time and 2am Saturday 30 July Bali time. Lucy Noutsis gave evidence that she was present early afternoon on Saturday 30 July when the Applicant was speaking to her father on the phone advising him to contact Ms Wetzel. It is possible that this was a separate or additional conversation. If this is not the case I prefer the evidence of the Applicant and Mr Noutsis.
[17] The Applicant accepted that it would have been possible for her to tell her father and brother that she did not want to stay in Bali but wanted to return to Melbourne as planned and then take action to try to change her flights again. The Applicant said that this may have involved some additional costs. However, the Applicant decided to support her family. I accept that she was under strong pressure from the actions of her brother and her parents to do so.
[18] The Applicant requested her father to contact Ms Wetzel to advise her of the situation and of her late return from leave. Mr Jim Noutsis gave evidence, which I accept, that given that the child care centre was not open on the weekends he decided that he should ring Ms Wetzel on Sunday afternoon. Ms Wetzel gave evidence that in response to Mr Noutsis’ advice that he had changed the Applicant’s return date from Bali in order to support her sister in law and child Ms Wetzel had said “If she is returning on Thursday, I expect her to attend work on Friday.” 24 Ms Wetzel does not suggest that she expressed any disapproval or gave any indication that the three days late return from leave was unauthorised. Mr Noutsis gave evidence that Ms Wetzel had said “that is fine, we will see her on Friday.”25 Regardless of which account is accepted, I am satisfied that it was reasonable for Mr Noutsis to get the impression from the conversation that the employer had accepted and approved that the Applicant would be returning to work on Friday 5 August 2011 and that he then communicated this to the Applicant.
[19] I am satisfied that the Applicant had difficulties communicating by mobile phone whilst in Bali. Her phone only worked intermittently. In the circumstances, given the costs and difficulties of communication, it is understandable that she asked her father to communicate with Ms Wetzel rather than doing so directly.
[20] The evidence of Ms Wetzel and Ms Leidler is that when a member of staff is absent due to illness or other reason the centre first attempts to reorganise the duties of the remaining employees who are rostered for duties on that day or on those days. This is done to maximise continuity for the children and also to minimise the costs of replacement employees. Where this is not possible the centre has an arrangement with an agency that provide temporary relief employees. Ms Wetzel gave evidence that there were no problems with the reliability of this arrangement and that the agency always provided employees when required. Replacement employees with the appropriate qualifications are required in order to meet the Children’s Services Regulations 2009. The evidence of Ms Wetzel and Ms Leidler is that the delayed return of the Applicant caused no more inconvenience or cost to the centre than would normally occur in the case where an employee is ill or on carers leave. I am satisfied that the notice given to the centre in this case was greater than would commonly occur in the case of an absence due to illness. Ms Wetzel gave evidence that there was no difficulty in arranging to cover the three days of unanticipated absence of the Applicant.
[21] On Monday 1 August 2011 Ms Wetzel emailed the Applicant to advise:
“Dear Stacie, I am writing on behalf of the Committee of Management as I was contacted by your father yesterday informing me that you would not be returning to work on Tuesday as expected. As per your previously approved leave you are required to be back at work on Tuesday August 2nd at 9am. If you choose not to return as expected this will be an unauthorised absence and will lead to disciplinary action. Please contact me immediately.” 26
I am satisfied that this came as a shock to the Applicant. The Applicant responded without delay by email. Given the communication difficulties referred to earlier I am satisfied that this was an appropriate way for the Applicant to contact Ms Wetzel and was action which fully complied with the request in her email. It should be noted that this email was the first indication from the Respondent to the Applicant that the extension of leave was not authorised. It should also be noted that given that the Applicant was in Bali the Respondent must have known that it was impossible for her to comply with a direction given on Monday afternoon to return to work in Melbourne on Tuesday morning.
[22] The email response of the Applicant thirty minutes later was addressed to Jodi and the Committee and said:
“Thank you for your email. Unfortunately I cannot contact you by phone as my roaming is not working. I am aware that this is an unauthorised absence but this is purely a family involved incident and was beyond my control. I will be available from Friday 9am and I hope you and the Committee can trust that this was an honest mistake and that I am here in support of my family.” 27
I am satisfied that this email provided a clear explanation of the Applicant’s actions and was a clear apology for her actions and any inconvenience.
[23] The Applicant followed up her email with a telephone call to Ms Wetzel on Tuesday 2 August. The Applicant says that Ms Wetzel’s tone in this conversation was condescending. Ms Wetzel denies that this was the case.
[24] An email was sent by Jodi Wetzel on 3 August 2011 to the Applicant stating that:
“As briefly mentioned during our phone call yesterday I am writing to confirm that Sue Leidler, Vice President Committee of Management, will be meeting with you at the centre on Friday at 9.00 am to discuss your unauthorised absence.” 28
[25] On 5 August 2011 sometime between 8am and 8.45am the Applicant was advised that she could bring a support person to the meeting and she arranged for her father to attend.
[26] Ms Wetzel had obtained advice from VECCI prior to the termination meeting. The email of 1 August to the Applicant was also informed by advice received from VECCI.
[27] The meeting at 9am on Friday 5 August 2011 was attended by Ms Wetzel, Ms Leidler, Mr Noutsis and the Applicant. The Applicant did not say a great deal at the meeting. Mr Noutsis did much of the speaking on behalf of the Applicant and took responsibility for changing the flights and the late return from leave of the Applicant. I am satisfied after considering all the evidence that Ms Leidler made it clear that it was important that other employees understood that policies were adhered to and that breaches would not be tolerated. Ms Wetzel and Ms Leidler say, and I am satisfied that, two letters had been prepared one for a warning and one for a termination. They say that they had not decided which course of action to take prior to the meeting.
[28] The meeting lasted about 40 minutes. At the end of the meeting Mr Noutsis and the Applicant were asked to leave and Ms Wetzel and Ms Leidler considered the matter for between 5 and 15 minutes. The Applicant was then handed a termination letter. The letter states that termination is without notice and is for serious misconduct. The letter states that the Applicant was given the opportunity in the meeting to offer her account of the situation and that this has been considered. The serious misconduct is described as follows:
“You were approved leave until August 1 and expected to return to work on August 2. You decided not to return to work until August 5 for a reason other than medical or emergency. You did not follow the correct approval procedure for taking additional leave and this is a direct breach of your employment contract and company policies and procedures. You also did not personally notify the centre or committee until we contacted you.” 29
[29] The Applicant was then able to say farewell to other employees but not the children.
[30] On 29 October 2011 the Applicant received a very abusive text message from another employee of the Respondent. That text message made reference to the action, presumably the unfair dismissal action, that the Applicant was taking against the centre and abused the Applicant for taking this action. 30 Ms Wetzel gave evidence that she had spoken to the employee who had sent the text message and told her that it was inappropriate and that the behaviour should not be repeated. No further action has been taken by the Respondent although Ms Wetzel said that it was possible the matter could be considered further by the Committee of Management.
[31] The Applicant does not seek reinstatement. The Respondent strongly opposes reinstatement.
[32] There were not very many points of conflict in the evidence about the events that led to the dismissal. The main points of conflict were:
- The extent to which Ms Wetzel approved the deferral of the Applicant’s return from annual leave in the initial telephone call with her father on Sunday 31 July 2011 discussed earlier.
- Whether or not Ms Wetzel was “condescending” in her conversation with the Applicant on the telephone on August 2. It is common for the tone of a conversation to be perceived differently by the participants so I do not regard this conflict to be of importance.
- The extent to which the Respondent dismissed the Applicant in order to demonstrate to other employees that policies must be adhered to. I am satisfied that the evidence supports a conclusion that this was a factor in the reason to terminate. Mr Noutsis gave evidence that Ms Wetzel and Ms Leidler had said that they needed to make an example of the Applicant. This is strongly denied by Ms Wetzel and Ms Leidler. It is not necessary to determine this matter; I regard the difference on this matter as largely an understandable difference of perceptions.
- The circumstances and timing of the initial telephone conversation between the Applicant and her father and brother in which the Applicant was informed that her flights had been changed and that she was now booked to return from Bali on 4 August 2011. I am satisfied that there is no serious conflict in the evidence about the circumstances of the initial conversation which involved the Applicant, her brother and her father. There is some conflict about the timing of the call because Ms Lucy Noutsis says that she heard the Applicant advise her father to notify the employer about the situation. 31 This could only be possible if the telephone call was later than suggested by the Applicant and Mr Noutsis. I prefer the evidence of the Applicant and Mr Noutsis in this regard. I doubt that Lucy Noutsis did overhear the conversation. I also do not regard the timing of the call as being of any great consequence. This issue does not significantly affect the credibility of the evidence of Mr Noutsis or the Applicant.
- The extent to which the Applicant apologised and demonstrated remorse in the termination interview on August 5.Ms Wetzel says that the Applicant:
“did not respond to the issues raised but seemed very casual and quite indifferent to the discussion”. She says that the Applicant said “well I’ve already apologised what more can I say.” Ms Wetzel had the view that “at no stage had the Applicant apologised for her conduct.” 32
The Applicant gave evidence that she was concerned about the impact of her absence on her employment when she was in Bali. The evidence of Ms Lucy Noutsis and Mr Noutsis supports this. The Applicant gave evidence that she was shocked and upset during the termination meeting and this affected her level of participation in the meeting. The Applicant was advised that disciplinary action might occur from the meeting on 5 August 2011 but I am satisfied that she was not advised that termination was a possible consequence and she was certainly not expecting that outcome. I am satisfied that the Applicant was concerned about the impact of her absence on her employment when she was in Bali. I am satisfied that the Applicant did apologise in her email of 1 August 2011. This was the first direct communication between the Applicant and the Respondent about the issue. I am satisfied that she reaffirmed that apology at the meeting on 5 August. I am satisfied that the Applicant was not casual and indifferent.
[33] Generally I found the witnesses to be forthright and sincere. The points of conflict in the evidence are not significant and are what one might expect given the differences in perception and the frailty of memories in stressful situations.
[34] Ms Wetzel and Ms Leidler both confirmed that there had been no issues with the performance of the Applicant during the four years of her employment with the Respondent. The evidence was that the Applicant was good at her job and well liked by parents, children and the other employees. The performance assessment which was in evidence 33 showed that the Respondent had a high opinion of the Applicant’s performance. Ms Wetzel had commented that “Stacie works as an effective team member and is willing to help out others when needed. She is always positive and works well with others.” In respect to the centre’s philosophy, policies and procedures Ms Wetzel commented “Stacie already has a good understanding in this area but will spend time working on extending her skills and knowledge.”34
Small business code.
[35] This is a case of dismissal without notice. The only provision in the small business code which is relevant is the section headed “summary dismissal”. Under this section I must be satisfied that “the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal”. The dismissal does not come within the examples of serious misconduct given in the code as there is no suggestion of theft, fraud, violence or serious breaches of occupational health and safety.
[36] I am satisfied that in these circumstances I must consider whether or not the employer had other reasonable grounds to believe that there was serious misconduct. If I am satisfied that there were reasonable grounds to believe that there was serious misconduct then the Small Business Code has been complied with.
[37] The Fair Work Regulations 2009 define serious misconduct for the purposes of the Act (the Regulations).
“1.07 Meaning of serious misconduct
(1) For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.
(2) For subregulation (1), conduct that is serious misconduct includes both of the following:
(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;
(b) conduct that causes serious and imminent risk to:
(i) the health or safety of a person; or
(ii) the reputation, viability or profitability of the employer’s business.
(3) For subregulation (1), conduct that is serious misconduct includes each of the following:
(a) the employee, in the course of the employee’s employment, engaging in:
(i) theft; or
(ii) fraud; or
(iii) assault;
(b) the employee being intoxicated at work;
(c) the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.
(4) Subregulation (3) does not apply if the employee is able to show that, in the circumstances, the conduct engaged in by the employee was not conduct that made employment in the period of notice unreasonable.”
[38] It is accepted that Ms Wetzel and Ms Leidler had the above definition of serious misconduct available to them at the time they made their decision.
[39] It is not suggested that there is anything in the circumstances of this case which falls within Section (2)(b) or Section (3)(a) or 3(b) of the Regulations.
[40] Te only instruction that was given to the Applicant was the email of the afternoon of 1 August 2011 from Ms Wetzel stating that: “If you choose not to return as expected this will be an unauthorised absence and will lead to disciplinary action. Please contact me immediately.” This cannot be regarded as a lawful and reasonable instruction to return for work on the morning of Tuesday 2 August since Ms Wetzel knew that the Applicant was in Bali, was booked on a later plane and that it was physically impossible for her to return by that time. No such instruction was given when the Applicant contacted Ms Wetzel through her father on 31 July 2011. In any case the failure to follow such an instruction could not reasonably be described as conduct which made employment in the notice period unreasonable. The conditions of Section (3)(c) cannot be met.
[41] There is no basis on which the behaviour of the Applicant could be reasonably described as “wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment.” On occasion unauthorised absence by an employee can constitute such behaviour. An employer could have a reasonable belief that an unauthorised absence met this test where for example an employee who had a poor attendance record failed to notify of a significant period of absence from work and that employee was unable to provide adequate reason for this behaviour.
[42] In this case there is no evidentiary basis upon which Ms Wetzel and Ms Leidler could reasonably have concluded that the Applicant was wilfully acting inconsistently with the continuation of her contract of employment. The Applicant took steps to ensure that the appropriate person, Ms Wetzel, was notified in advance of her absence and the reasons for it. The reasons for her absence were not fanciful. The reasons for her absence were ones where an employee could reasonably expect that an employer would be likely to grant leave of absence. The reasons for absence were not completely within the Applicant’s control. Her parents changed her travel arrangements and although it would have been possible for the Applicant to have sought to undo these actions this would have been potentially expensive and difficult. Ms Wetzel must have known that the Applicant’s father communicated to the Applicant that Ms Wetzel did not object to her returning three days late following the initial phone advice of the absence. The Applicant responded by email and then by phone to Ms Wetzel’s email of 1 August. The Applicant apologised for her actions and the inconvenience. Ms Wetzel agreed during the proceedings that the Applicant did not deliberately breach policy, procedures or her contract of employment. At its highest the actions of the Applicant may have been negligent.
[43] Ms Wetzel and Ms Leidler conceded that there was no difficulty in ensuring that the work of the Applicant was covered such that there was no breach of the childcare regulations. They agreed that the process was identical to that which is followed in the case of employee illness. The Respondent had more notice than is usual in the case of employee illness. Ms Wetzel gave evidence that the arrangements with the child care labour agency are reliable. I am satisfied that the actions of the Applicant posed no significant risk to the ability of the centre to meet is obligations under the childcare regulations.
[44] It may be suggested that the failure to carry out the policies and procedures of the Respondent which were known to the Applicant constitutes a failure to carry out lawful instruction or wilful behaviour inconsistent with the contract of employment. The Respondent refers to a letter concerning employment conditions sent by Ms Wetzel to the Applicant dated 29 April 2010. 35 That letter states that:
“all leave entitlements are in accordance with the provisions of the Children’s Services (Victorian) Award 2010. The Centre generally closes for approximately two - three weeks over the Christmas period at which time leave entitlements are utilized. The remainder is to be taken during the years subject to discussion with the Committee of Management provided that you have accrued a full entitlement at the time...”
[45] A copy of the “annual and unpaid leave” policy extracted from the policy and procedures handbook of the Respondent was in evidence. This was the only policy relied upon by the Respondent. The Applicant had sought copies of any other policies or procedures on a number of occasions prior to the proceedings. The annual and unpaid leave policy in addition to the statement about the Christmas close down which is in the letter quoted earlier, provides that:
“staff are entitled to annual leave as stated in their relevant award” and that “applications for 2 or more consecutive days of annual or unpaid leave, need to be made in writing a month prior to wanting the time off” and that “approval of applications is at the Committee’s discretion.” 36
[46] I can see nothing in this letter or policy which could form the basis for a reasonable belief that the Applicant was acting in breach of this letter or the policy. The Applicant did apply for her leave in accordance with this letter and her leave was approved. This policy does not deal with the situation where an employee seeks to take additional leave or to vary the return date from their leave due to unforeseen circumstances. A reasonable policy could not exclude such a possibility. The sensible and appropriate thing to do in these circumstances is to contact the appropriate person as soon as possible and advise them of the circumstances. This is exactly what the Applicant ensured occurred.
[47] Ms Leidler could not identify how the Applicant had breached the policy. Ms Leidler made the decision to terminate the Applicant’s employment on the basis that she did not
“follow the correct approval procedure for taking additional leave and this is a direct breach of your employment contract and company policies and procedures. You also did not personally notify the centre or committee until we contacted you” (underlining added).
Ms Leidler could not explain how there had been a “direct breach of your employment contract and company policies and procedures” when giving evidence to the Tribunal. There is also no evidence of any policy or procedure or explicit or implied term of any employment contract or any provision of the relevant Award which says that an employee in the situation of the Applicant must contact the employer directly and cannot do so through their parent.
[48] There is no evidence before me which remotely suggests that the behaviour of the Applicant falls within the definition of serious misconduct in the Regulations. Furthermore, there is nothing in the evidence which suggests that Ms Wetzel and/or Ms Leidler had reasonable grounds to believe that there was serious misconduct
[49] Having determined that the actions of the Applicant did not constitute serious misconduct and that the Respondent did not have reasonable grounds to believe that it did, I conclude that the Small Business Code has not been followed. I must now consider whether or not the termination was harsh, unjust or unreasonable.
Was there a valid reason for dismissal.
[50] The reasons given for the termination were:
“You were approved leave until August 1 and expected to return to work on August 2. You decided not to return to work until August 5 for a reason other than medical or emergency. You did not follow the correct approval procedure for taking additional leave and this is a direct breach of your employment contract and company policies and procedures. You also did not personally notify the centre or committee until we contacted you.” 37
[51] Ms Wetzel and Ms Leidler say that they were influenced by what they say was:
“the Applicant’s casual attitude, her lack of care and appreciation for her duties and responsibilities as an employee, and the importance of the Respondent’s policies and procedures. We were also concerned that she had neither apologised for her conduct, nor had she demonstrated any remorse or regret.” 38
[52] Given the problems with mobile phone reception, the costs and the stressful situation in which the Applicant found herself, there was nothing inappropriate in the Applicant arranging for her father to ring Ms Wetzel to advise her of her inability to return on Tuesday 2 August.
[53] It is not fanciful to suggest that the Applicant had grounds to be granted carers leave for the three days from Tuesday 2 August. The Applicant and her family regarded the situation as “an unexpected emergency” affecting a member of her household. This meets the terms of Section 97(b)(ii) of the Act. Of course it was open to the Respondent to question whether or not the situation was “an unexpected emergency.” I accept that whether or not these circumstances constituted an unexpected emergency is a matter about which reasonable minds might differ. However, it was not unreasonable for the Applicant to hold the belief that this was a situation where she should be entitled to three additional days’ absence from work. In light of the Applicant’s good record, if the Respondent had a different view this might lead to a conversation between the Applicant and the Respondent where expectations for the future were clarified. It could not form a valid reason for termination of employment.
[54] I am not satisfied for the reasons outlined earlier that the Applicant breached the correct approval procedure for the taking of additional leave. I am not satisfied that there is any policy for dealing with a situation where at short notice an employee is unable to return from annual leave and seeks a short extension to that leave. I am not satisfied that there was any direct breach of employment contract or company policies and procedures. The Applicant did not abandon her employment or leave her employer in the lurch. The Applicant ensured the Respondent had proper notice. The Applicant was honest and open about the reasons for her absence. If the Applicant or a family member had become ill whilst she was in Bali or if her plane had been cancelled it is unlikely that there would have been any consequences.
[55] There was no reasonable basis for Ms Wetzel and Ms Leidler to conclude that the Applicant had a “casual attitude” or,a “lack of care and appreciation for her duties and responsibilities as an employee, and the importance of the Respondent’s policies and procedures” on the basis of this single incident and the single interview of 5 August. Ms Wetzel and Ms Leidler were aware of the Applicant’s excellent employment record over the previous four years. Ms Wetzel had assessed that the Applicant had a “good understanding” of the policies and procedures and had a serious attitude to her work.
[56] I am satisfied that the Applicant had satisfactorily apologised to the Respondent. Her first direct communication about the issue stated:
“I am aware that this is an unauthorised absence but this is purely a family involved incident and was beyond my control. I will be available from Friday 9am and I hope you and the Committee can trust that this was an honest mistake and that I am here in support of my family.” 39
[57] There was no valid reason for the termination.
Notification of reasons for dismissal and opportunity to respond.
[58] The Applicant was notified of the reasons for dismissal and was given an opportunity to respond.
Was the Applicant refused a support person?
[59] The Applicant was given the opportunity to have a support person.
Unsatisfactory performance?
[60] There was no unsatisfactory performance.
Was the size of the employer’s undertaking and or the lack of human resource management specialists likely to impact on the procedures followed?
[61] The Respondent is a small business. The Respondent did consult with their employer organisation; however, it does not directly employ human resource management specialists. There was no significant problem with the procedures followed by the Respondent in this case. The problem lies with the lack of a valid reason.
Other relevant matters.
[62] Following the termination of the Applicant it is not contested that the Applicant received a very abusive text message from another employee of the Respondent. That text message made reference to the action, presumably the unfair dismissal action, that the Applicant was taking against the centre and abused the Applicant for taking this action. 40 The Respondent was able to take action to investigate and summarily dismiss the Applicant immediately upon her return. However, the Respondent has taken no action to discipline the employee who sent the text message. Of course I am not making any judgment about the appropriate action in that case as all the relevant material is not before me. However, the inconsistency in the approach taken is a relevant consideration.
Was the dismissal harsh, unjust or unreasonable?
[63] I am satisfied that there was no valid reason for the termination of the Applicant and in all the circumstances the termination was harsh, unjust and unreasonable.
Remedy
[64] The Applicant does not seek reinstatement and the Respondent strongly opposes it. In all of the circumstances I do not consider reinstatement would be appropriate or practical. The relationship of trust is not able to be restored. I particularly take into account the abusive contact with the Applicant by another employee since the termination. 41 In all of the circumstances I find that an order for compensation is appropriate.
[65] The Applicant was not paid the three weeks of notice to which she was entitled under the National Employment Standards and the Award. The Applicant was paid one week’s ex gratia payment.
[66] The Applicant has made extensive efforts to find employment and mitigate her loss. She has obtained some work as an Agency worker. This work is on a casual basis and the hours available are considerably less than full time. The hourly rate of pay is comparable when the casual loading is excluded. The Applicant has been actively looking for full time employment since 14 November 2011. The Applicant was absent overseas with her parents for ten days during October. The Applicant gave evidence that her earnings had been approximately $500 per fortnight since the termination as compared to $1700 per fortnight when employed by the Applicant.
[67] There is no evidence that any order I make will affect the viability of the Respondent.
[68] I have regard for the more than four years of service with the Respondent which is a reasonably long period given the nature of the industry. It provides no basis for reducing any award of compensation.
[69] I judge that the Applicant would have continued in employment with the Respondent for two further years given the high regard in which the Applicant was held by the Respondent, the high level of commitment of the Applicant to the job, and the length of previous service with the Respondent. The Applicant was paid $22.37 per hour. The Applicant’s earnings during that period would be approximately $88,400 not including superannuation.
[70] In all of the circumstances I am satisfied that the Applicant has undertaken reasonable efforts to mitigate her losses due to the termination.
[71] I do not consider that there has been any misconduct which would require me to reduce the amount of any compensation.
[72] I do not include any component by way of compensation for shock, distress or humiliation caused by the manner of the dismissal.
[73] I deduct an amount of $500 per fortnight for the amounts earned for the period between the dismissal and the making of this decision. That amount is $9000.
[74] I deduct an amount of $1000 for amounts likely to be earned during the period between the making of this decision and the payment of any compensation.
[75] I consider that the amount of compensation should be reduced by 30% to allow for contingencies or errors and uncertainty in the estimates of future employment and earnings and for the reason set out below.
[76] It was submitted by the Respondent that it may have been possible for the Applicant to have earned additional income during the period since her termination if she had not taken ten days holiday and if she had commenced looking for full time work as opposed to agency work earlier. The Applicant submitted that the stress caused by the termination affected her ability and also justified the taking of the holiday. I have taken these matters into account in choosing the higher than normal figure for contingencies and in applying the deduction for contingencies to the total period and not just to the past-compensation period.
[77] There are no other relevant factors.
[78] The resultant compensation of $54,880 plus superannuation exceeds the 26 weeks limit on compensation. Taking these factors into consideration and the principle of a fair go all round I order a payment of 26 weeks compensation or $22,100 plus 9% superannuation, less appropriate taxation as required by law. This amount is inclusive of the three weeks’ notice to which the Applicant was entitled less the one week’s ex gratia payment made.
[79] I take into account that the child care centre is not likely to have extensive reserves or to have budgeted for an order of compensation in these circumstances. I therefore deem it appropriate that the compensation be paid in six equal monthly instalments starting two weeks from the date of this decision. The Respondent is at liberty to apply for a variation to this time period.
COMMISSIONER
Appearances:
Ms E Tueno appeared for the Applicant.
Mr J Forbes appeared for the Respondent.
Hearing details:
2011
Melbourne
December 9
1 Exhibits N2 and N6.
2 Exhibit N4.
3 Exhibit N3.
4 Exhibits N1 and N5.
5 Exhibit N7.
6 Exhibit N8.
7 Exhibit N9.
8 Exhibit N10.
9 Exhibit N11.
10 Exhibit T2.
11 Exhibit T3.
12 Exhibit T1.
13 Exhibit T4.
14 Exhibit T2, Attachment JW1.
15 Ibid, Attachment JW2.
16 Ibid, Attachment JW3.
17 Ibid, Attachment JW4.
18 Ibid, Attachment JW5.
19 Ibid, Attachment JW6.
20 Ibid, Attachment JW7.
21 Ibid, Attachment JW8.
22 Ibid, Attachment JW9.
23 Exhibit N2.
24 Exhibit T2, para 13.
25 Exhibit N4, para 6.
26 Exhibit T2, Attachment JW6.
27 Ibid, Attachment JW7.
28 Ibid, Attachment JW8.
29 Ibid, Attachment JW9.
30 Exhibit N6.
31 Exhibit N3, para 6.
32 Exhibit T2, para 25 and Exhibit T3, para 19,
33 Exhibit N7.
34 Ibid, Key Area and Objective 4.
35 Exhibit T2, Attachment JW1.
36 Ibid, Attachment JW3.
37 Ibid, Attachment JW9.
38 Exhibit T2, paras 25 and 26 and Exhibit T3, para 20.
39 Exhibit T2, Attachment JW7.
40 Exhibit N6.
41 Ibid.
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