Ms Tania Saranov v KJ & J Romano No 2 Pty Ltd T/A Romano Property Management

[2015] FWC 3842

[2015] FWC 3842

FAIR WORK COMMISSION

DECISION

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

Ms Tania Saranov
v
KJ & J Romano No 2 Pty Ltd T/A Romano Property Management
(U2015/2075)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 12 JUNE 2015

Summary: application for unfair dismissal remedy - objection on basis that dismissal not at initiative of employer - repudiation of contract of employment - acceptance - determination of merits in substantive matter - application dismissed for reasons of misconduct - failure to comply with a reasonable and lawful direction - loss of confidence and trust.

[1] This decision concerns an application by Ms Tania Saranov under s.394 of the Fair Work Act 2009 (“the Act”) in relation to her alleged dismissal from Romano No 2 Ltd T/A Romano Property Management Trust (“the Company”) on 15 December 2014.

[2] The Company contends that Ms Saranov was not dismissed at its initiative but instead, Ms Saranov resigned her employment at her own volition (and was not forced to do so because of its conduct).

[3] It is therefore necessary for me to firstly turn to the determination of this jurisdictional objection before such time as I can turn to consider the substantive matter (though the facts pertaining to both the jurisdictional objection and the merits application will substantially overlap).

Legislative provisions

[4] Section 385 of the Act provides as follows:

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
...

[5] Section 386 of the Act provides the definition of a dismissal in following terms:

386 Meaning of dismissed

(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; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

[6] Ms Saranov contended that she did not resign her position and rejects claims made to this end by the Company. She says that she was dismissed by Ms Joanne Romano without notice at approximately 9:30 AM on 15 December 2014.

[7] Ms Saranov argues that since late October 2014 she had been seeking to agitate a wage review and to obtain a list of her relevant duties from the Company - through Ms Romano.

[8] The background to this was explained in the following terms by Ms Saranov.

[9] She was employed, Ms Saranov contended, “at the end of January 2013” to perform HR tasks under “the Clerical Award”, which appeared to have included preparing letters of appointment and establishing rates of pay for employees. Ms Saranov had at a point in her written statement stated her role was as “office administrator.”

[10] Ms Saranov claims that she was required to do tasks other than those which she had been employed to perform, including undertaking tasks normally completed by licensed property managers and completing online registration questionnaires on behalf of Ms Romano. Generally, Ms Saranov complained that Ms Romano “regularly changed my duties; this was very unsettling and counter-productive.”

[11] Because of this, Ms Saranov “requested a pay review and that [her] duties be formalised.”

[12] Ms Saranov claims that there was an attempt by Ms Romano to have her meet with Mr Tom Calcagno (Salesperson and Office Manager), but that she did not agree to this meeting as Mr Calcagno “did not have an understanding of the award.” She claimed that she had already had a meeting with Ms Romano and the Company’s bookkeeper, Ms Suzanne Hodgson, but this had been unproductive as Ms Saranov argued Ms Hodgson did not have an understanding of the award either.

[13] Ms Saranov claims that she attempted to persuade Ms Romano to invite a new employee or a “neutral party from the office of fair work” to assist in “the mediation process.” Ms Romano was said not to have acceded to these requests.

[14] A few days prior to 15 December 2014 Ms Saranov indicated to Ms Romano, so Ms Saranov claims, that she believed the wage review was being drawn out and that it would be necessary for her to raise the matter with the Fair Work Commission.

[15] Ms Saranov stated that during a conversation with Ms Romano on the morning of 15 December she (Ms Romano) raised her hand “as if to gesture to silence me and then raised her voice argumentatively raising matters with no relevance to our discussion at hand.”

[16] Given Ms Romano’s apparent conduct, Ms Saranov explained that she said that she “was not going to engage any further in that argument and that [she] was going upstairs to sort out some matters.”

[17] Ms Saranov went on to explain that Ms Romano then followed her and “in a loud and intimidating manner” asked her, “well are you resigning[?]” Ms Saranov explained that she replied, “No”. Ms Romano was then said to have stated that, “Well, I am terminating you.”

[18] Ms Saranov claimed she was then in a state of disbelief and before leaving the workplace indicated to her colleagues that Ms Romano had “just sacked me.” Ms Saranov claims that thereafter she sent one or more SMS texts to her friends regarding her situation.

[19] Ms Saranov claims that she returned to the workplace shortly thereafter to collect her diary and personal notes. However, she did not take her personal effects such as her family photographs because she claimed she was of the belief that she would be returning to work.

[20] Ms Saranov claims that one of her work colleagues (who she said had obtained work elsewhere) was subsequently dismissed.

[21] Ms Saranov stated that she made various attempts to contact Ms Romano by email that day but she did not receive a reply.

[22] Ms Saranov stated further that “the only time I have come to the realisation that [Ms Romano] had actually terminated me was when I received an email and final pay slip on Wednesday 17/12/14.”

[23] It was argued by Ms Saranov that she was predisposed not to resign her position because she had family responsibilities, the financial situation was stressful and she was aware that finding alternative work in Cairns was difficult.

[24] Ms Saranov claims that at that time she was not given any reason for her dismissal or given an opportunity to respond to any reason the employer may have had to dismiss her. Ms Saranov also claimed that she was not counselled or warned by her employer of any deficiencies in her performance or conduct before such time as she was dismissed.

[25] Ms Saranov also provided a number of observations about the employment culture at the Company. Amongst these observations were the following:

• The work ethics and atmosphere was “very insecure and unhappy”;



• In her last year of employment, Ms Saranov was actively searching for alternative full-time work;



• She was directed not to provide information to her work colleagues about their workplace entitlements in relation to leave or otherwise provide information about applicable awards as she was “not paid” to perform that role;



• Ms Romano “severely reprimanded” her for giving out information on leave to colleagues; and



• The workplace was “an environment of absolute control”.

[26] The consultation notes provided by Ms Saranov’s medical practitioner - and which formed part of Ms Saranov’s evidentiary case - state that she had informed him that she “feels the workplace is a circus.”

[27] Ms Toni Phillips gave evidence in the proceedings - in support of Ms Saranov’s case - and stated that during her time with the Company “she witnessed and was subjected to unacceptable behaviour by Joanne Romano.” She also claimed that she had observed “behaviour towards [Ms Saranov] that was of a bullying nature.”

[28] Ms Phillips had not been employed with the Company since 24 October 2014, and was not a witness to the events of 15 December 2014.

[29] Ms Michele Rogers also provided evidence on behalf of Ms Saranov. Ms Rogers was not employed at the company on 15 December 2014. Nonetheless, she gave evidence that in the course of her employment with the Company she observed that Ms Saranov was given a wide range of duties which “overloaded her” and placed “extra pressure on her.”

[30] Mr Dean Stolpmann also provided evidence in support of Ms Saranov. Mr Stolpmann did not observe the interactions between Ms Saranov and Ms Romano on 15 December 2014 as he had been out of the office conducting a routine inspection. Nonetheless he gave general evidence that he had “witnessed and heard the aggressive behaviour towards Tania” by “Ms Romano and Mr Calcagno in early December 2014” and had extended sympathy to Ms Saranov in respect of what he believed was “extremely inappropriate behaviour and unnecessary.”

[31] Mr Stolpmann gave evidence that on 15 December 2014 upon returning to the workplace he was informed by another property manager (Mr Stewart Veall) that, “you just missed it all [Ms Romano] was having a go at Tania (Ms Saranov) and she left.” Mr Veall’s evidence was that he in actuality had said to Mr Stolpmann words to the effect that, “you missed a big argument in the office and Tania’s walked out.” That is, he had not claimed to Mr Stolpmann that Ms Romano “was having a go at” Ms Saranov.

[32] Ms Romano gave evidence that Ms Saranov was employed on 29 January 2013 in a position of office administrator. The letter of appointment, which was attached to Ms Romano’s statement, set out the various terms and conditions of her employment. These terms, which were signed off on by Ms Saranov, included the requirement to “perform the duties described;” “perform the duties from time to time assigned to you by the company and in all respects comply with directions and regulations given or made by the company [...]” and otherwise to “well and faithfully served the company in a conscientious and professional manner.”

[33] Ms Saranov’s salary was $40,000 per annum based on a 38 hour week, Monday to Friday.

[34] Ms Romano claimed that Ms Saranov had agitated for a wage increase since late in 2014, and that they had met and discussed this issue. In an email dated 8 December 2014, Ms Saranov had corresponded with Ms Romano in the following terms:

“Thank you for your reply of today's date.

I believe that we have had a meeting in relation to the award rate of pay. Further to that meeting, you asked me to specifically address the areas which I feel warrant a review of the award level at which I was employed/am being paid; that was provided to you on 24/11/14.

On 4/12/14 you advised that you were prepared to review my pay rate.

On 5/12/14 I asked you to clarify what level of the award and what pay rate you had decided. Would you please put this in writing.

As stated during our meeting on 11/11/14 with Suzanne, I would prefer that if any further meetings were to be held, that a neutral party be involved and that party being from the office of fair work. That representation would ensure the most appropriate outcome for both of us.”

[35] In reply to Ms Saranov’s e-mail, Ms Romano stated on 9 December 2014:

“Hi Tania;

As per your previous email, we request that you make an appointment with us to discuss these matters further. If you do choose not to, we will consider this matter at an end.”

[36] The following day Ms Saranov wrote to Ms Romano in the following terms by email:

“At your previous requests, I had met with you and discussed this matter. I have also provided examples, in writing, to support my claim.

I have asked that a number of things be clarified:

• The level and rate of pay which you said you may wish to consider



• a clear list of my duties.

To date, this information has not been provided.”

[37] On 11 December 2014 Ms Saranov wrote to Ms Romano in the following terms:

“I would really appreciate resolving this matter at the earliest opportunity. I therefore ask for your written reply by tomorrow, as per previous emails.”

[38] The following day, Ms Romano replied to Ms Saranov, requesting that she make an appointment to see her:

“Hi Tania

As per our previous email we are waiting for you to make an appointment with us. You have not given us an opportunity to discuss these matters.”

[39] Ms Romano claims that at approximately 9:15 AM on Monday, 15 December 2014, she was meeting in the staff room with Mr Calcagno and Mr Veall when Ms Saranov interrupted the meeting by stating that:

“Joanne, I need to speak with you right now.”

[40] Mr Calcagno and Mr Veall both gave evidence as to the nature of Ms Saranov’s entrance into the meeting. That evidence supported Ms Romano’s recollections.

[41] Ms Saranov claimed that the matter was of a personal nature and requested that Mr Calcagno leave the room. Mr Calcagno did so. Mr Veall also left the meeting at that stage as well (according to Mr Veall’s evidence).

[42] Ms Romano claims that Ms Saranov then made an allegation that Ms Romano had sent her an email after 5 PM on Friday because “you just wanted me to stew over the weekend.”

[43] Ms Romano denied the claim and indicated that she knew that Ms Saranov was still at work and that was the reason for the email, and nothing else.

[44] Ms Saranov was then said to have interrupted and stated that:

“You have been setting me up. You’ve been advertising my job.”

[45] Ms Romano claimed that she said words to the effect of:

“No, that’s not correct. We have definitely not advertised your job. You’ve not allowed us to go through the process for your pay review. We have tried very hard to firstly give you the opportunity to talk with myself and with [Mr Calcagno]. You refused. I then set up a meeting with Suzanne [Hodgson - the Bookkeeper] and myself and that wasn't good enough. You were very rude to Suzanne. I’ve done everything I can to arrange a meeting time. We offered you the opportunity to speak with us. I asked you to put in writing your position, which you did. We don’t agree with your statement that you should be paid on a level 5 and back paid for 2 years. I’ve offered you the opportunity to arrange a meeting with Tom and myself to review your pay but you haven't done that.”

[46] The evidence of Ms Hodgson supported the evidence of Ms Romano as to the prior meetings and the content of those meetings (including the dispute as to the appropriate classification of Ms Saranov’s work). Ms Hodgson gave evidence that Ms Saranov refused to allow her to attend the meetings regarding discussions about Ms Saranov’s pay and conditions, and had indeed spoken rudely to her in the course of the meeting she did attend.

[47] Following what Ms Romano claimed were her comments (as set out above), Ms Saranov responded, according to Ms Romano, by stating words to the effect:

“I’ve had enough. I’m going.”

[48] Ms Romano then stated words to the effect, she claims, that:

“Will you do the roll-over today then? You know it needs to be done today.”

[49] The purpose of the mid month roll-over was to ensure that all incoming rents were disbursed to landlords and that payments were made to tradespersons who had carried out work on rental properties. Mr Calcagno gave evidence that Ms Saranov was exclusively responsible for performing that task and that at the time she was the only person who knew how to fully complete the necessary processes.

[50] Following on from the above exchange in relation to the mid month rollover, Ms Saranov, it was claimed, responded with words to the effect of:

“No, I’m not doing it. I’m going. I need to go and I’m going. I’m leaving.”

[51] Ms Romano claims that she insisted that Ms Saranov remain at work and perform the roll-over:

“I need you to stay to do the roll-over. You need to do this. It’s part of your job.”

[52] Ms Saranov was said to have replied:

“No I’m not. I’m going. I’m going.”

[53] When Ms Romano inquired as to whether Ms Saranov was resigning, Ms Romano said that Ms Saranov initially stated:

“No - I’m going. I’m out of here!”

[54] When Ms Romano stated that she needed to talk with Ms Saranov about this situation, Ms Romano says that Ms Saranov continually stated that she was leaving and walked upstairs to her desk.

[55] Ms Romano stated that she walked up behind Ms Saranov and continued to attempt to convince her to complete the roll-over.

[56] Upon reaching Ms Saranov’s desk, Ms Romano stated that she again indicated to Ms Saranov that:

“We need to do this roll-over Tania.”

[57] But again, according to Ms Romano, Ms Saranov merely insisted that she was leaving.

[58] Ms Romano then claimed that she stated words to the effect of:

“Okay Tania, if that’s how you feel, I’ll draw up an acceptance of your resignation.”

[59] Mr Calcagno gave evidence which essentially corroborated that of Ms Romano. Mr Calcagno had claimed that he had overheard exchanges between Ms Romano and Ms Saranov on the relevant day and recalled Ms Romano repeatedly asking Ms Saranov to complete the roll-over whilst Ms Saranov responded with the same words, “No, I am leaving.”

[60] Mr Calcagno also claimed that Ms Romano had never terminated Ms Saranov’s employment though she had indicated that she was accepting Ms Saranov’s resignation. Mr Calcagno was pressed on the distinction in this regard under cross examination and held, in effect, that accepting a person’s resignation was distinguishable from dismissing them as such (perhaps a point of reference to s.385 and s.386 of the Act).

[61] Ms Seccombe, the Clerical Assistant for the Company, gave evidence that owing to her seating position she overheard the latter exchanges between Ms Saranov and Ms Romano. Ms Seccombe claimed that she heard Ms Romano requesting Ms Saranov to complete the mid-month roll-over but Ms Saranov, in an “overpowering tone” had only replied repeatedly that she was leaving. Ms Seccombe also overheard Ms Romano state that she “would write (Ms Saranov) a letter of resignation” or words to that effect.

[62] Mr Veall, another property manager (to whose evidence I have referred earlier) also claimed that he overheard Ms Romano requesting Ms Saranov to carry out the roll-over on at least two occasions. He also claimed that the tenor of the exchange was such that Ms Romano was asking Ms Saranov to do a specific job but that Ms Saranov was refusing to do the task. Mr Veall also indicated he had never heard Ms Romano use any words that conveyed a sense that Ms Saranov had been “terminated” or “put off” or “sacked”.

[63] Mr Calcagno also claimed that he was “very surprised” by the turn of events and in particular that Ms Saranov did not do the mid month roll-over.

[64] Ms Romano says that Ms Saranov then left the building but returned a short time later to collect the office diary and the backup USBs, which were the property of the Company.

[65] Ms Romano claims that Ms Saranov gave no reasons why she was leaving the premises and abandoning her duties, particularly when she was expressly directed to complete an important business task.

[66] Ms Romano further claims that Ms Saranov never sought to contact her despite the fact that she held all the office information including her [Ms Romano’s] personal email address (which she had previously utilised).

[67] Ms Romano claims that the mere fact that Ms Saranov indicated that she was unaware of her termination until she received a pay advice to that effect is a strong indication that Ms Romano never terminated or used words to that effect in respect of Ms Saranov on 15 December 2014.

[68] Other staff members who were witness to the exchange at the time when Ms Saranov and Ms Romano were at Ms Saranov’s desk do not recall having heard Ms Romano utilise language directed at terminating Ms Saranov.

[69] Ms Romano also rejected the claims about the bleak office environment as portrayed by Ms Saranov and her witnesses, Ms Georgia Sibley, Ms Margot Medek and Ms Jiordan Leonardi.

[70] Mr Calcagno and Ms Suzanne Hodgson also provided evidence to the effect that Ms Saranov’s characterisation of the office environment was inaccurate. Ms Seccombe (whose evidence I have referred to above), also rebutted the claims by Ms Saranov, and claimed that it was Ms Saranov herself who was responsible for “aggressive and belittling behaviour” in the workplace (and in particular towards Ms Romano and Mr Calcagno).

[71] Mr Veall and Ms Johnstone also gave evidence that contradicted or heavily qualified the claim by Ms Saranov and others that the workplace was negative or in some manner dysfunctional.

[72] Ms Romano also rejected (as did Ms Hodgson) the proposition advanced by Ms Saranov that she (Ms Saranov) was employed in a human resources role. It is for these reasons that she held that Ms Saranov was required to perform administrative related functions and her role was not advisory in nature in relation to terms and conditions of employment. These were matters for which Ms Romano and Mr Calcagno took responsibility (based on outsourced advice) and they were not matters delegated to the office administrator.

[73] Mr Calcagno gave evidence that he was aware that Ms Saranov had complained that she had an excessive workload and that he had been directed by Ms Romano to lighten her load by assuming some of her duties. However, Mr Calcagno claimed that when he did so, Ms Saranov believed that he was attempting to undermine her position.

[74] Mr Calcagno also contextualised Ms Saranov’s observation that Mr Stolpmann had been dismissed on 15 December 2014. Mr Calcagno explained that Mr Stolpmann was dismissed for reasons unrelated to those of Ms Saranov’s circumstances. Mr Stolpmann, Mr Calcagno explained, was said to have been subject to multiple warnings for performance and conduct issues and was in his probationary period at the time.

Evaluation of the evidence

[75] Having heard the witnesses in this matter, I have found the evidence led on behalf of the Company to be compelling.

[76] The claim by Ms Saranov that she was dismissed by verbal direction by Ms Romano is not made out. I prefer the evidence of the multiple witnesses who - each from their own perspective on the incident - deny any such language was utilised by Ms Romano in her exchange with Ms Saranov. The witness evidence showed none of the hallmarks of concoction and was not slavishly duplicated. Each of the witnesses was positioned to hear elements of the exchange between Ms Saranov and Ms Romano. Each of the witnesses for the Company was also candid and gave no impression that their evidence was construed for the purposes of securing or advancing their interests as employees.

[77] Ms Saranov raised issues about some of the witnesses and questioned their credibility. For example, she claims she had once seen Ms Seccombe look at another employee’s payslip. Ms Saranov also claims that Mr Veall had described the office culture to her after she had left as “unbearable.” As I have mentioned above, Ms Saranov also claimed Mr Calcagno had contradicted himself in his evidence by stating that Ms Romano had accepted her resignation but another time indicating that Ms Romano had never mentioned that Ms Saranov “no longer had a job” (though this later comment was in the context of Ms Romano taking positive steps to dismiss Ms Saranov as opposed to accepting her resignation).

[78] None of Ms Saranov’s evidence in these respects challenges the central evidence as to the nature of the exchanges that occurred on the relevant day, and the construction of Ms Saranov’s conduct that evidence illuminates.

[79] On the basis of the civil onus of proof, it appears to me on the evidence of Ms Romano and the other witnesses - whose corroborative evidence I have set out above - was that Ms Romano insisted that Ms Saranov fulfil a business critical function and that she [Ms Saranov] refused to comply with that reasonable direction and - despite having opportunities to reflect upon her intentions - preferred to vacate the workplace without authorisation, adequate explanation or reasonable justification.

[80] I have also found the narrative of events posed by Ms Saranov to lack authenticity. On the account of the events provided by Ms Saranov, Ms Romano brought a conversation to an abrupt end and in response to this Ms Saranov stated she did not wish to have an argument with Ms Romano and walked off, indicating she was going back to her place of work (to complete the roll-over that she indicated in her viva voce evidence). In this context Ms Saranov nonetheless contended that Ms Romano pursued her and “in a loud and intimidating manner” asked her, “well are you resigning [?]” Ms Saranov claimed that she replied, “No.” Ms Romano was then said to have stated, “Well, I am terminating you.”

[81] These circumstances, on the balance of probability, are contrived. The relevant conduct at that time does not appear to me to have sufficient significance to warrant the apparent response by Ms Romano as alleged by Ms Saranov. That is, in effect, upon Ms Saranov walking off and indicating she was returning to work and did not wish to enter into an argument, Ms Romano was said have queried whether Ms Saranov was resigning. There is no particularised evidence that illuminates why Ms Romano would have construed Ms Saranov’s conduct as giving rise to a resignation given the limited compass of the exchanges to that point, noting especially that Ms Saranov (herself) contended that she had not indicated that she was leaving the workplace at any point, or refusing to do the roll-over. That is, there is no prior conduct on Ms Saranov’s part that reasonably gives rise to an inference formed by Ms Romano (expressed by way of a question) that Ms Saranov was resigning her employment (when all she had said was that was returning to her duties).

[82] Even if the surrounding circumstances are taken into account (such as the tension created by Ms Saranov’s entry into the meeting) there does not appear to me to be sufficient context to provide a reasonable explanation for the conduct of Ms Romano as it is reconstructed by Ms Saranov. That is, the reconstruction of the events by Ms Saranov appears to me to lack authenticity.

[83] It appears to me that the more complex narrative provided by Ms Romano provides a more authentic context. That is, Ms Romano accepted the presumed resignation of Ms Saranov for the reasons that she (Ms Saranov) intended to leave the workplace without authorisation, explanation or reasonable justification, and without completing the business critical roll-over task she had commenced.

[84] I also add that Ms Romano did not seek to gild her conduct on the relevant day. She did not make any claim that Ms Saranov herself volunteered her resignation. Nor did Ms Romano claim Ms Saranov had simply left the workplace without explanation. Ms Romano claimed that she construed the conduct by Ms Saranov as a resignation (and no more) and stated words to that effect.

[85] Ms Saranov claimed that there was never any reference to the roll-over in her exchanges with Ms Romano. This is contradicted by the witness evidence I have set out above. It also appears to me to be an unlikely situation that the roll-over would not have been mentioned given its business critical status and that Ms Saranov had indicated that she was in the process of completing that task at the very time of the confrontation with Ms Romano. On the balance of probability, the exchanges did give rise to commentary on the roll-over, and only the evidence for the employer reflects this probability.

[86] The circumstances in this case do not constitute circumstances in which the conduct or course of conduct of the employer was such that Ms Saranov was left with no reasonable choice other than to leave the workplace or abandon her employment.

[87] The facts here as I have found them to be are that Ms Saranov sought to remove herself from the workplace without authorisation and failed to perform a business critical function for which she was responsible and in respect of which she was directed to carry out.

[88] Ms Saranov - by her own words - was aware of the importance of the roll-over:

“I was very aware of the importance of the roll-over and that the landlords and tradesmen are paid.”

[89] In conducting herself in the manner she did, Ms Saranov repudiated the contract of employment with her employer.

[90] Ms Romano considered that Ms Saranov’s conduct constituted repudiation of her (Ms Saranov’s) employment contract, and elected to accept the repudiation and to terminate the contract. That was the effect - in a practical sense - of her usage of the phrase (as she recalled it) “I accept your resignation.”

[91] Ms Saranov, therefore, must be taken to have been dismissed at the initiative of her employer. It was always open for Ms Romano not to accept the conduct as being in repudiation, and to assert control over Ms Saranov’s activities as an employee. She may have waived Ms Saranov’s conduct as mere aberrant behaviour, or for some other reason. But Ms Romano chose not to, and in a jurisdictional sense (under s.385 of the Act), the dismissal was at the initiative of the employer (Ms Romano) as a consequence.

[92] That is to say, the conduct in breach by Ms Saranov did not automatically bring the employment relationship to an end, as more was required, and in this instance it was characterisation by Ms Romano of Ms Saranov’s conduct as being a “resignation” that resulted in the cessation of the employment relationship.

[93] This, Ms Saranov’s employment came to an end for reason of a dismissal effected by Ms Romano and the employer cannot claim that the requirements of s.383(a) of the Act are not made out.

[94] Given my findings in this respect, I now turn to consider the substantive case (which largely relies on the same facts).

LEGISLATIVE REQUIREMENTS

[95] The relevant legislative provisions arise under s.387 of the Act, which reads as follows:

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.

CONSIDERATION

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)

[96] Ms Saranov, of her own volition, sought to vacate the workplace without authorisation from her employer and in so doing failed to fulfil a reasonable and lawful direction by her employer to fulfil a business critical function for which she was responsible that day.

[97] I have set out above the evidence in respect of the circumstances that have brought me to this conclusion. As I have also indicated above, I have found the evidence of Ms Romano and the various other witnesses for the Company to be compelling and persuasive in respect of the events of 15 December 2014.

[98] It is not in all circumstances that where an employee vacates the workplace without authorisation that a valid reason for a dismissal is in evidence. But in this particular case, Ms Saranov vacated the workplace without authorisation, and did so in the context of a refusal to fulfil a business critical function that she was expressly directed to perform by her employer.

[99] Ms Saranov’s circumstances demonstrate that she had other options than proceeding in this manner, but she chose the more defiant pathway which had implications for her employer’s business and her employer’s confidence in her (Ms Saranov) as an employee.

[100] The failure to carry out a reasonable and lawful direction by an employer in this particular setting warranted dismissal.

[101] In my view, the Company had a valid reason for dismissing Ms Saranov.

Whether the person was notified of that reason

[102] Ms Saranov was not notified of the reason for her dismissal because of the particular circumstances in which the dismissal may be said to have taken effect. Given this, I am of the view that the circumstances of this case indicate that the failure to provide notice of the reason for the dismissal bears in neutral terms upon my ultimate conclusions.

Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[103] Ms Saranov was not provided an opportunity to respond to the reasons related to the dismissal as they related to her conduct. This was because Ms Saranov had left the workplace without authorisation. No fault falls at the feet of the employer that Ms Saranov was not provided an opportunity to respond to the reason for the dismissal. In any event, Ms Saranov would have reasonably appreciated that her conduct as I have found it to be on 15 December 2014 was the cause of the dismissal, if a dismissal was effected at the initiative of the employer.

[104] In the particular circumstances of this case the failure to provide Ms Saranov with an opportunity to respond to the reason for her purported dismissal bears in neutral terms upon my ultimate conclusions.

Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal

[105] There was no unreasonable refusal by Ms Romano to allow Ms Saranov to have a support person present to assist at any discussions relating to her purported dismissal - this is because the purported dismissal occurred in circumstances where there was no relevant discussion. This is a matter therefore that bears is in neutral terms upon my ultimate conclusion.

If the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

[106] Though there was some evidence led by Ms Hodgson as to Ms Saranov’s performance as an office administrator, it was the conduct on 15 December 2014 that was instrumental in the cessation of the employment of Ms Saranov.

[107] The purported dismissal therefore did not relate to the performance of Ms Saranov as an employee.

The degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal

[108] The Company is small in size and employed no more than nine employees (on the most generous of calculations) at 15 December 2014. It appears to me that a reasonable presumption can be made that the small size of the employer’s enterprise contributed to the procedures followed in effecting the dismissal.

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

[109] The Company has no dedicated human resource management specialists and its advice in this respect is outsourced to its peak association. It appears to be a reasonable presumption that an absence of dedicated human resource management specialists in the employer’s enterprise contributed to the procedures followed in effecting the dismissal.

Any other matters that the FWC considers relevant

[110] Ms Saranov claims that she lacked a proper job description and was required to perform duties as a property manager, a role in which she was not trained or licensed. This was contested vigorously by her employer. Ms Saranov also claimed she was not provided sufficient training to perform her duties (though this was contradicted by Mr Calcagno in particularly strong terms in the course of his cross examination).

[111] Ms Saranov also claimed to have been underpaid for a period of time owing to her having performed roles beyond those for which she was remunerated.

[112] Ms Saranov also claimed that she would never have resigned her position voluntarily given the fragility of the employment market in Cairns. Impliedly, the loss of employment by Ms Saranov would have affected her adversely. Ms Saranov did not make much of this point in her viva voce evidence or closing submissions, perhaps because - as became evident over the course of the witness evidence - Ms Saranov had seemingly obtained employment with another real estate agent in Cairns (though I do not know under what terms and conditions).

Conclusion

[113] In my view, the circumstances of this matter led me to conclude that Ms Saranov was not dismissed on terms that could be said to have been harsh, unjust or unreasonable. The conduct of Ms Saranov - as I have set out above and characterised it - was contradictory to her responsibilities as an employee, and it was reasonable in the circumstances for Ms Romano to conclude that she could no longer invest any trust or confidence in Ms Saranov to perform her duties as reasonably and lawfully directed.

[114] The application by Ms Saranov under s. 394 of the Act is therefore dismissed.

SENIOR DEPUTY PRESIDENT

Appearances:

Ms T. Saranov, Applicant

Ms J. Romano, of the Respondent

Hearing details:

By video

2015

4 and 5 June

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