Ms Virginia Doig v Colin Joss & Co Pty Ltd T/A Joss Facility Management

[2015] FWC 231

[2015] FWC 231

FAIR WORK COMMISSION

DECISION

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

Ms Virginia Doig
v
Colin Joss & Co Pty Ltd T/A Joss Facility Management
(U2014/1515)

Ms Patricia Smith
v
Colin Joss & Co Pty Ltd T/A Joss Facility Management
(U2014/1517)

Ms Diane Hockings
v
Colin Joss & Co Pty Ltd T/A Joss Facility Management
(U2014/1519)

COMMISSIONER CARGILL SYDNEY, 13 JANUARY 2015

Applications for relief from unfair dismissal

[1] This decision arises from applications by Ms Doig, Ms Smith and Ms Hockings (collectively the applicants) pursuant to section 394 of the Fair Work Act 2009 (the Act) for relief in respect of the termination of their employment by Colin Joss & Co Pty Ltd trading as Joss Facility Management (the respondent or Joss). The dismissal of each of the applicants occurred on 11 April 2014. Each application for relief was lodged on 30 April 2014.

[2] The matters were dealt with by a Conciliator on 27 June 2014 but did not settle. They were heard by me in Orange on 21 and 22 October and in Sydney on 25 and 26 November 2014. The matters were heard together at the request of the parties during or following the conciliation conference. The matters proceeded before me by way of a hearing as I considered that it was appropriate to do so having taken account of the factors set out in section 399.

[3] The applicants were represented by Ms Starr, Industrial Officer with United Voice (UV), an organisation of which each of them is a member. The respondent was represented by Mr Joseph of counsel who appeared with permission.

[4] The following witnesses gave evidence in the applicants’ cases:

Ms V Doig Applicant. Her witness statement dated 1 October 2014 was marked Exhibit Applicant 1 and her oral testimony is at PN 30-504 of Transcript;

Ms P Smith Applicant. Her witness statement dated 22 September 2014 was marked Exhibit Applicant 2 and her oral testimony is at PN 531-876 of Transcript;

Ms D Hockings Applicant. Her witness statement dated 1 October 2014 was marked Exhibit Applicant 4 and her oral testimony is at PN 879-1093 of Transcript.

[5] The following witnesses gave evidence in the respondent’s case:

Mr M Loy General Manager of the respondent’s Cleaning Division. His witness statement was marked Exhibit Respondent 1 and his oral testimony is at PN 1224-1868 of Transcript;

Ms C Corcoran Human Resources Coordinator with the respondent. Her witness statement was marked Exhibit Respondent 3 and her oral testimony is at PN 1885-2229 of Transcript;

Ms M Carey Principal of the Henry Lawson High School (HLHS). Her witness statement dated 22 October 2014 was marked Exhibit Respondent 4 and her oral testimony is at PN 2256-2319 of Transcript;

Ms E Davis Cleaning Supervisor with the respondent. Her undated witness statement of 41 paragraphs was marked Exhibit Respondent 5 and her witness statement dated 20 October 2014 became Exhibit Respondent 6. Her oral testimony is at PN 2321-2696 of Transcript;

Mr T Wilson Operations Manager, Riverina Contract, with the respondent. Mr Wilson provided two undated witness statements. The first, a statement of 59 paragraphs, was marked Exhibit Respondent 7. The second, a statement of 159 paragraphs became Exhibit Respondent 8. His oral testimony is at PN 2722-3462 of Transcript;

Ms V Lawson Cleaning Supervisor with the respondent. Her witness statement was marked Exhibit Respondent 9. Her oral testimony is at PN 3471-3542 of Transcript;

Ms D Maher Cleaning Supervisor with the respondent. Her witness statement was marked Exhibit Respondent 10 and her oral testimony is at PN3545-3660 of Transcript.

[6] There was extensive evidence and much material provided in these proceedings. Although I may not specifically refer to each and every issue raised, in reaching my conclusions I have had regard to all relevant materials and evidence before me.

FACTS AND EVIDENCE

[7] Each of the applicants was employed by the respondent as a permanent part-time cleaner at HLHS which is located at Grenfell in the central west of New South Wales. The respondent became the employer of the applicants on 1 July 2011 when it took over the cleaning contract at HLHS.

[8] That arrangement came about by means of the “Whole of Government Facilities Management Services (Asset Maintenance and Cleaning) Contract” (the Contract) with the New South Wales Government, through NSW Public Works. Joss was the successful tenderer for the provision of cleaning services at a number of sites, such as public schools, within certain defined areas of the state including at HLHS.

[9] Prior to 1 July 2011 those services were provided for various periods of time by other contract cleaning companies. Each of the applicants had previously been engaged by some or all of those organisations. In the case of both Ms Doig and Ms Hockings, they had initially been employed directly by the New South Wales Government before the cleaning services were outsourced. Details of these earlier arrangements are set out at paragraph 13 of the applicants’ written outline of submissions.

[10] Ms Hockings commenced at HLHS in 1976. At the time of her dismissal she was working for 31¼ hours per week. According to the respondent’s Form F3 she was earning $642.86 per week. Ms Doig started at HLHS in 1986. She was engaged to work 32½ hours per week and at the time of her dismissal was earning $667.96 per week. Ms Smith began in 1998 as a casual and was made permanent part-time in 2002. She worked for 23 hours per week and received $482.01 per week. Each of the applicants was responsible for discrete parts of the school except that both Ms Hockings and Ms Doig shared the duties in relation to Room 20 and the outside cemented areas.

[11] Under the terms of the Contract Joss is required to meet certain Key Performance Indicators (KPIs). An extract from the Contract setting out these KPIs is at Tab 1 of Exhibit Respondent 2. It is also Annexure A to the respondent’s outline of submissions. Only some of the KPIs relate to cleaning quality. During cross-examination Mr Loy agreed that only 3% of the total possible KPI score was directly referable to the quality of cleaning. The respondent can be financially penalised if it does not meet its KPIs. No penalty has been imposed on Joss as a result of the cleaning standards at HLHS.

[12] As part of its obligations under the Contract Joss is required to undertake monthly inspections at each site and to produce a Quality Monitoring Report (QMR) after each such inspection. Joss is required to enter the results of each QMR into a computer based system, WebClean, where they can be monitored by the client. There is also an obligation to conduct inspections and provide reports in relation to OH&S compliance.

[13] Public Works Inspectors undertake random inspections. These appear to occur annually though not necessarily at the same time each year. The relevant reports for HLHS for 2012, 2013 and 2014 are at Exhibit Respondent 11.

[14] The QMRs are completed by Cleaning Supervisors employed by the respondent. The reports are based on visual inspections. The Supervisor rates each area as acceptable or unacceptable. The numbers of “acceptable” and “unacceptable” are totalled and a percentage score is calculated. It is the evidence of Ms Davis that, if she found one room with a dirty floor, she would rate the floors as “acceptable”. However, if two or three floors were in the same state, she would rate them as “unacceptable” In addition to the acceptable/unacceptable ratings the QMRs list items for rectification.

[15] The respondent provided a document which is said to summarise the items for rectification in the QMRs which predate the dismissal. It attributes each item to the particular areas for which each of the applicants was responsible.

[16] It is the evidence of both Mr Loy and Mr Wilson that a QMR score of less than 90% is considered to be unacceptable and one of 85% or less is rated as a fail.

[17] The QMRs for HLHS for the period 10 April 2013 to 9 September 2014 are at Tab 9 of Exhibit Respondent 2. All but one of those that predate the applicants’ dismissal are also Attachments UV 1-20 to the applicants’ written outline of submissions and are Annexure G to the respondent’s written outline of submissions. Those QMRs that postdate the dismissals are also at Annexure C to Exhibit Respondent 6.

[18] All but three of the inspections, those of 24 January, 28 March and 10 April 2014, were conducted by Ms Davis alone. The inspection of 24 January was carried out by Mr Wilson and another Supervisor, Ms Mann. The inspections of 28 March and 10 April were jointly conducted by Ms Davis and Ms Maher.

[19] The results of the QMRs are as follows:

● 10 April 2013 - 89%
● 10 May 2013 - No score
● 22 May 2013 - 93%
● 6 June 2013 - 89%
● 26 June 2013 - No score
● 16 July 2013 - 95%
● 23 August 2013 - 91%
● 11 September 2013 - 86%
● 23 October 2013 - 92%
● 29 November 2013 - 81%
● 12 December 2013 - 80%
● 24 January 2014 - QMR shows 60% but agreed in evidence that the actual score was 27%
● 21 February 2014 - 77%
● 28 February 2014 - 70%
● 7 March 2014 - 85%
● 14 March 2014 - 74%
● 21 March 2014 - 77%
● 28 March 2014 - 61%
● 10 April 2014 - 54%

Applicants dismissed

● 7 May 2014 - 93%
● 18 June 2014 - 93%
● 30 July 2014 - 91%
● 15 August 2014 - 93%
● 9 September 2014 - 93%

[20] Each of the applicants provides evidence about the duties which they undertook. Ms Doig provides details about the way in which she carried out her tasks during a typical week. She also describes what is done during the “vacation cleans” which take place in school holidays. Each of the applicants had a work schedule. These indicate the particular jobs that are to be done and the frequency with which this is to occur. It seems that the schedules which applied until 4 March 2014 were the same for each of the applicants. Ms Doig’s schedule is Annexure A to Exhibit Applicant 1.

[21] Each of the applicants gives evidence about ongoing difficulties at HLHS which hindered them in carrying out their duties. These included the number of stairs, repeated infestations of spiders with consequent large amounts of cobwebs and the risk of bites, brittle glass louvres and the poor state of the cemented areas outside.

[22] Ms Doig’s evidence is that, in 2011, she and Ms Hockings sought the assistance of the union as they felt Ms Cary was making invalid complaints about their cleaning. Ms Doig’s evidence is that she understood Ms Carey “backed right off” after that. Ms Doig also gave evidence that she believes the problems with Ms Carey related to a disagreement about Ms Doig’s son who was a student at the school.

[23] Each of the applicants makes various allegations about Mr Wilson’s interactions with them. Mr Wilson generally denies these allegations.

[24] The applicants had access to the QMRs and indeed several include annotations from one or more of them as they completed the items listed for rectification. It is the evidence of all of the applicants that they were never informed about how the QMR process worked or how the scores were calculated.

[25] It is the evidence of Ms Davis that she maintained the same approach to the inspections and QMRs for the period from April 2013 to when she gave her evidence. Her evidence is that from October 2013 she noticed that the cleaning standard at HLHS had declined. The score on 29 November was only 81% which was considered a fail. Ms Davis says she spoke to the applicants about the issues which needed rectification.

[26] The applicant’s evidence is that no specific performance issues had been raised with them prior to the QMR of 29 November. They say that they believe the report was unfair as they had been doing their duties as they always had and they considered that the school was clean. Ms Smith’s evidence is that she thought Ms Davis was “nitpicking”. All three applicants say that they didn’t understand why this inspection had failed.

[27] It is the respondent’s practice that, when a site fails a QMR, more frequent inspections are undertaken. Ms Davis’s evidence is that the inspection on 12 December revealed many of the same items for rectification as she had identified in the 29 November QMR.

[28] On 16 December 2013 Mr Wilson and Ms Davis attended the school and conducted a walk-through together with the applicants. A meeting was then held to discuss the upcoming vacation clean. The applicants raised a particular issue with the polisher.

[29] On 20 December Ms Davis made a note in the Communications Book to inform the applicants that the next inspection would be undertaken by Mr Wilson and another supervisor. Mr Wilson’s evidence is that this was in response to a suggestion from UV and to obtain a different perspective regarding the cleaning standards. In any event Ms Davis was to be on leave during January 2014. The school year ended on 20 December 2013.

[30] The Communications Book is used for the purposes of communications between the staff of the school, the applicants and Joss representatives. A copy of that portion of the book which extends from 2 May 2013 to 10 April 2014 is at Exhibit Applicant 7.

[31] Mr Wilson and Ms Lawson attended HLHS on 21 January 2014. That was at the start of the four day vacation clean. As a result of a leak in one of the rooms the water had been turned off at the mains. Plumbers had to dig up concrete to find the source of the leak which created a lot of dust.

[32] Ms Lawson’s evidence is that the floors of the Needlework and Art Rooms were not up to standard. She and Mr Wilson cleaned half of the Art Room floor to demonstrate to Ms Doig the standard which was required. Ms Lawson also gives evidence that Ms Smith was verbally and visually instructed on how to clean particular windows, tracks and ledges. Ms Lawson says that there were issues with the state of the Woodwork, Cleaners and Storage Rooms. It is her opinion that the quality of cleaning at HLHS was of a very poor standard.

[33] Mr Wilson and Ms Lawson met with the applicants to discuss ways in which the cleaning standard could be improved. It is Ms Smith’s evidence that this meeting took from 10:30am to 1:00pm. This delayed her work which put her behind schedule and caused her stress.

[34] Ms Lawson’s evidence is that, during the discussions, it was identified that the work schedules and team cleaning approach could be causing problems. The applicants also identified issues with particular pieces of equipment such as the blower. Ms Lawson’s evidence is that it was made clear to the applicants that part of the reason for the visit was to encourage and assist them to improve the standards.

[35] On 23 January 2014 Mr Wilson sent an email to Mr Loy informing him that the cleaning standard at HLHS was the worst he had seen in his time with Joss. The email was forwarded to the respondent’s Human Resources department for information.

[36] Also on 23 January Mr Wilson left telephone messages for Ms Smith and Ms Hockings informing them that he would be conducting a QMR inspection the following day and that he wished to talk to them about the work schedules. He spoke to Ms Doig and conveyed the same message.

[37] The inspection on 24 January was conducted by Mr Wilson and Ms Mann. Ms Doig’s evidence is that she informed them that some of the rooms were not yet completed as there were still two full days and one morning shift remaining for the vacation clean. The inspection went ahead including the uncompleted rooms.

[38] This is the QMR which indicates a 60% score but which was actually 27%. The report which was completed by Ms Mann also contains eight pages of items for rectification. Mr Wilson held a meeting with the applicants. Ms Smith’s evidence is that this went for almost two hours. There was some discussion about whether the work schedules should be changed and Ms Smith put forward a suggested alteration to her schedule. Her evidence is that her proposal was not adopted.

[39] After being made aware of the results of the 24 January QMR Mr Loy decided to issue each of the applicants with a written warning. The respective warnings which are signed by Ms Corcoran are at Annexure D to Exhibit Applicant 1, Annexure A to Exhibit Applicant 2, and Annexure A to Exhibit Applicant 4. The warning for Ms Doig is also at Tab 5 of Exhibit Respondent 2 and that for Ms Smith is at Annexure B to the respondent’s outline of submissions. Aside from differences in the items for rectification which reflect the areas of responsibility of each of the applicants, the warnings are in the same terms.

[40] The warnings state that the cleaning standard reflected in the QMR of 24 January would not be tolerated and indicate that further disciplinary action will take place if the applicants did not undertake duties in accordance with their work schedules and rosters. The letters inform the applicants to contact their supervisor for clarification of their duties, if required, or for further training or mentoring.

[41] The evidence of each of the applicants is that they were shocked when they received the written warnings. Ms Doig’s evidence is that she did not deserve the warning as she was carrying out her duties and took pride in her work.

[42] The three applicants wrote a joint letter to Joss dated 2 February, Annexure E to Exhibit Applicant 1 and Annexure C to the respondent’s outline of submissions, informing the respondent that they strongly disagreed with the results of the January QMR and the warning letters. The applicants also highlighted issues which, they believed, had affected the inspection and the QMR as well as their broader concerns such as the spiders and difficulties with particular pieces of equipment.

[43] On 13 February Mr Loy sent an email to a contact in Public Works informing him that there were serious performance issues at HLHS, Tab 10 of Exhibit Respondent 2. In the email Mr Loy states that Joss was just about at the end of the process and was “about to terminate” when it received a letter from UV accusing the company of bullying the staff. Under cross-examination Mr Loy agreed that, at that point, he had formed a view that the applicants should be dismissed. However in re-examination Mr Loy testified that he had not made any such decision then but hoped that the cleaning standard would improve so that there was no requirement for any further disciplinary process.

[44] On 18 February a meeting was held at HLHS. In addition to the three applicants and the various Joss representatives the relevant UV Organiser was also present. The issues discussed at the meeting included the cleaning standards, work schedules, refresher training, the replacement of a particular piece of equipment with one which would be easier to use and the provision of a specialist to repair the Hall floor. The evidence of Ms Doig is that no proper clarification of necessary changes was provided by the Joss representatives. Ms Smith says no clear outcome was given.

[45] The UV Organiser, on behalf of the applicants, asked that the warnings be retracted. Joss refused.

[46] On 19 February Mr Loy sent an email to Mr Wilson and Ms Davis asking for the updated work schedules for the applicants, Exhibit Applicant 5. His evidence is that his statement in the email, “(i)f we get this right the rest should be easy”, reflected his hope that the cleaning standard at HLHS would improve. Mr Loy denied that he had made a decision to dismiss the applicants at that time.

[47] On 20 February Ms Corcoran sent a letter to each of the applicants confirming the issues discussed and agreed on at the meeting of 18 February. The letter to Ms Hockings is at Tab 6 of Exhibit Respondent 2 and Annexure D to the respondent’s outline of submissions. Among other things the letter notes that all parties agreed that cleaning was to return to an acceptable standard within four weeks of the start of the new work schedules.

[48] Inspections were undertaken on 21 and 28 February with scores of 77% and 70% respectively. On 4 March the applicants undertook refresher training on several different types of equipment. Ms Hockings’ evidence is that the training was disorganised and not helpful. Ms Doig describes it as “basic”.

[49] Also on 4 March each of the applicants was provided with a new work schedule. These were little changed from the previous schedules. Ms Lawson’s evidence is that the applicants did not wish to alter the allocation of the work. The new schedules are at Annexure B to Exhibit Respondent 6. Ms Doig’s is also Annexure B to Exhibit Applicant 1.

[50] The inspections of 7, 14, 21 and 28 March resulted in QMR scores of 85%, 74%, 77% and 61% respectively. The evidence of Ms Hockings and Ms Smith is that they did not receive any feedback on the first three of these reports. The evidence of Ms Davis is that there were improvements in the quality of the cleaning in some areas but not in others. She believed that the applicants had adopted a “don’t care” attitude but did not raise this with any of them. It is also the evidence of Ms Davis that, during the period of the weekly inspections, she discussed the results of each QMR with the applicants and showed them where they needed to direct their attention. The applicants told her they would try harder but there was no significant improvement.

[51] The inspection of 28 March was carried out by Ms Davis and Ms Maher. Mr Loy was also in attendance. It is the evidence of Ms Maher that the level of cleaning at HLHS was very poor and well below standard. The evidence of Ms Hockings and Ms Doig is that the assessment was not fair. Ms Smith says that the issues raised were the result of nitpicking. Ms Hockings’ evidence is that the applicants believed that they were being given poor marks because Joss wanted to dismiss them. The applicants requested an assessment by a Public Works inspector but the respondent refused.

[52] On 28 March Mr Loy sent an email to Ms Corcoran requesting her to prepare warning letters for the applicants, Exhibit Applicant 6. In that email Mr Loy states that the warnings are not to prompt the applicants into rectification but are “deliberately and intentionally the final steps before termination”. He also states that he believes the applicants could not possibly “catch up”. Mr Loy also requests that UV be notified of the warnings.

[53] Each of the applicants was issued with a second warning dated 1 April 2014. The warnings, which are at Annexure F to Exhibit Applicant 1 and Annexure B to both Exhibits Applicant 2 and Applicant 4 respectively, are relevantly in the same terms. Ms Doig’s warning is also at Tab 7 in Exhibit Respondent 2 and Annexure E to the respondent’s outline of submissions. The letters inform the applicants that they are final warnings in relation to their performance, note that the standards at the site are below expectations and further note Joss’s expectation of a favourable report at the next inspection. There is no mention of any possible consequence if such a result was not achieved. It is Mr Loy’s evidence that another failed QMR would lead to the dismissal of the applicants.

[54] The evidence of the applicants is that they were shocked and devastated to receive the warnings. Ms Smith’s evidence is that she was especially shocked because the Joss Employee Handbook provides for a disciplinary process of a verbal warning then three written warnings. The applicants disputed the 1 April warnings but Joss did not agree to retract them.

[55] On 3 April Mr Loy sent an email to his contact in Public Works informing him that the cleaning standard at HLHS was still not acceptable, Tab 11 of Exhibit Respondent 2. In the email Mr Loy states that warning letters had been issued which indicated that, if the site did not achieve an acceptable rating at the next inspection, the applicants would be dismissed. He also states that there were new staff on standby. Mr Loy’s evidence is that Joss always had casuals on standby to fill in as necessary.

[56] The next inspection was carried out by Ms Davis and Ms Maher on 10 April 2014 which was a school day. It was done at 1pm. Ms Davis says that, in undertaking her assessment, she took account of the time of day, the presence of students since earlier in the morning and the fact that it had been raining. The result of the inspection was a QMR score of 54%. Ms Davis’s evidence is that the site was in a terrible state. Ms Smith’s evidence is that it was a foregone conclusion that the school would fail this inspection.

[57] Ms Corcoran contacted Ms Doig and Ms Smith to inform them that they were being stood down and were to attend a meeting the following day. Ms Doig offered to inform Ms Hockings as the latter did not have a mobile phone. Ms Doig and Ms Hockings are sisters. At the request of UV the meeting was rescheduled to a later time on 11 April to allow the relevant Organiser to attend.

[58] The evidence of the applicants is that, prior to the meeting, their representative told them that he would speak on their behalf. It is Ms Corcoran’s evidence that, during the meeting, the Organiser made suggestions such as changing the work schedules and allowing a different supervisor to conduct the inspections. He was informed that these options had already been explored. Ms Corcoran’s evidence is that she confirmed that Joss was not looking for perfection just that the applicants meet the required cleaning standards.

[59] Ms Doig’s evidence is that Ms Corcoran opened the meeting by informing the applicants that their employment was being terminated effective immediately. Ms Corcoran denies this and says that she went into the meeting with an open mind. She agreed that, in view of the ongoing failed QMRs and the steps that had been taken to try and improve the standards, it would have taken something extraordinary to have changed the ultimate outcome. Ms Corcoran agreed that she had not considered moving the applicants to another site as Joss had done in some other situations. Ms Corcoran said that this was not really an option in this case as the cleaning standards were so poor.

[60] Ms Corcoran’s evidence is that she decided to dismiss the applicants on 11 April rather than issue a further warning letter as she felt Joss had done all that it could and the issues being put forward on behalf of the applicants had already been addressed.

[61] Ms Smith’s evidence is that during the meeting she raised the issue that Joss had not followed its own disciplinary policy as set out in the Joss Cleaning Handbook, Annexure D to Exhibit Applicant 2. Ms Corcoran told the applicants that the Handbook was just a guideline.

[62] Letters of termination dated 14 April were sent to the applicants. They are relevantly in the same terms and are at Annexure G to Exhibit Applicant 1, Annexure D to Exhibit Applicant 2 and Annexure C to Exhibit Applicant 4 respectively. Ms Doig’s letter is also Annexure F to the respondent’s outline of submissions. Each of the applicants received three weeks’ pay in lieu of notice.

[63] All of the applicants seek reinstatement. Each of them provides evidence about the severe negative impact of the dismissal upon their health, self esteem and financial situation. Ms Doig’s evidence is that she had not been in any paid employment since her dismissal. She has applied for numerous and a wide variety of jobs as far afield as Rockhampton but had not been successful in obtaining any of them.

[64] Ms Hockings’ evidence is that her only source of income since her dismissal has been a Jobstart allowance. Despite applying for two or three jobs a week she hadn’t obtained an interview. Ms Smith has continued to work in her second job but has not been able to obtain any additional hours.

[65] The respondent opposes reinstatement. It relies upon the results of the QMRs since the applicants were dismissed as well as Ms Carey’s evidence. Her evidence is that the school now looks and feels clean and there have been no issues with the cleaning standards of the current cleaners. Ms Carey also says that she has no confidence that the cleaning of any of the applicants would improve to an acceptable standard should they be reinstated. It is the evidence of Ms Davis that, following the dismissals, it took Joss an additional 150 hours of cleaning to get the school back to an acceptable standard.

SUBMISSIONS ON BEHALF OF THE APPLICANTS

[66] A joint outline of written submissions was provided prior to the hearing. Ms Starr also provided final written submissions which she supplemented with oral submissions.

[67] The applicants submit that their dismissals were harsh. They advance several factors in support of this proposition. First, they say that their performance was not so poor as to amount to a valid reason for the termination of their employment. The applicants submit that the respondent bears the onus of establishing that dismissal was warranted. Reference is made to a number of decisions concerning the meaning of “valid reason”. These include: Byrne & Frew v Australian Airlines Ltd (1995) 61 IR 32 (Byrne & Frew); Parmalat Food Products Pty Ltd v Wililo (2011) 207 IR 243; Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 (Selvachandran); Rode v Burwood Mitsubishi [Print R4471]; and Qantas Airways v Cornwall [1998] FCA 865.

[68] The applicants submit that there is no objective basis upon which I could be satisfied that their performance warranted dismissal. They say that their situation is in strong contrast to that identified in Re Crozier [2001] FCA 1031. The applicants note that, prior to November 2013, they had never been spoken to or warned about the standard of their cleaning.

[69] The applicants submit that the evidence of Ms Maher and Ms Lawson should be given little weight because of inconsistencies between their statements and the QMRs. The applicants also submit that the objectivity of the QMR inspections is seriously questionable. They note that, for the period April to December 2013, the average score was 89%. The applicants question Ms Mann’s experience in carrying out the 24 January inspection and note that the respondent’s witnesses accepted that the issues raised by the applicants in their letter of 2 February would have had a negative impact on at least some of the areas inspected.

[70] The applicants note the improvement in the results in February and March 2014 demonstrating that the cleaning had returned to an acceptable level. The applicants suggest that the low score on 28 March could be due to Mr Loy’s presence at the inspection and the influence this may have had on Ms Davis. The low score on 10 April is explained by the time of the day at which the inspection was performed and the fact that the dismissals were already a foregone conclusion.

[71] The applicants submit that the respondent’s evidence is inconsistent as to when the cleaning standards began to deteriorate and question why, if it was so bad, remedial steps had not been taken earlier. Further, there is nothing to explain how or why the standards could have fallen so dramatically after such long periods of unblemished performance. The applicants submit this is especially inexplicable in circumstances where the evidence is that they were trying their hardest.

[72] The applicants submit that there was in fact no deterioration in the standard of their cleaning and that the inconsistency and subjective views of those conducting the inspections is partly to blame for the low scores. The applicants submit that they have passed every inspection by the Public Works Inspectors which provides significant support for their submission that their performance did not warrant dismissal.

[73] The applicants submit that the way in which the QMR inspections were undertaken gave rise to other problems. The times when they were conducted did not take into account how the applicants performed their work, whether tasks had been completed or not and whether there were students present. Further, the issue of the spiders had not been properly addressed.

[74] The applicants note that the QMR scores fail to give them credit for their 100% ratings for all aspects of safety and OH&S compliance. The applicants submit that it is unfair that the QMR scores do not differentiate between them but apportion blame to all three. Mr Wilson’s manner towards and treatment of the applicants did nothing to assist.

[75] The applicants reject the suggestion of some of the respondent’s witnesses that they had a “poor attitude”. They submit that, on the contrary, they engaged with the respondent in the performance management process. Any issues which the applicants raised were reasonable and legitimate concerns and explanations for shortcomings in the cleaning. The applicants note that, if the respondent did have a genuine concern about their attitude, this was never raised with them.

[76] The second factor advanced by the applicants is that the respondent was never at risk of losing its contract because of the QMR results at HLHS nor did the results affect the KPIs in any significant way. Further, Joss has not suffered any financial penalty because of the applicants’ performance.

[77] The third factor relied upon by the applicants is that there were ongoing communication difficulties between Ms Carey and themselves. It is noted that neither Ms Carey nor the other school staff made any comments in the Communications Book about the standard of the cleaning. The applicants submit that a “Jones v Dunkel” inference should be drawn about the respondent’s failure to lead evidence about discussions between Joss representatives and Ms Carey. In any event, the applicants were never told about Ms Carey’s concerns or the possible consequences for their continued employment.

[78] The applicants submit that the performance management process suffered from several failings and was second-rate. This contributed to the unfairness of the dismissals. The applicants submit that Joss did not follow the disciplinary process set out in its own handbook.

[79] The applicants submit that any assistance provided to them was only superficial and of marginal relevance and did not address the ongoing concerns such as the spider infestations. They were not provided with any time frames in which improvements were to be made nor were they ever told the consequences of not achieving particular targets. Despite concerns about the work schedules Joss failed to make any meaningful adjustments to them.

[80] The applicants submit that the emails sent by Mr Loy on 13 February, 28 March and 6 April, raise serious issues about the credibility of the performance management process. The applicants submit that the decision to dismiss them had clearly been taken before any assistance had been provided and even before Joss undertook the more frequent inspections.

[81] The applicants also submit that there was effectively nothing they could have advanced at the meeting of 11 April which would have prevented their dismissal. Joss had ignored all of their previous responses. Further, Joss failed to put any weight on the impact which the dismissals would have upon the personal and financial circumstances of the applicants.

[82] The applicants refer to the principles of procedural fairness as summarised in De Silva v Exxon Mobil Chemical Australia Pty Ltd [PR910623] and cases referred to therein as well as the comments at pages 72 and 73 of Byrne & Frew. The applicants accept that they were notified of the reason for their dismissal and, in a general sense, were provided with an opportunity to respond. They submit however that their responses were not genuinely considered and that Joss had already decided to dismiss them prior to the commencement of the performance management process.

[83] The applicants agree that they received warnings about their performance. They submit however that those warnings were deficient in several respects: they were not in accordance with the respondent’s own disciplinary process; and, they were in the nature of a “mere exhortation” to improve rather than identifying with particularity the precise deficiencies to be corrected. In this regard reference is made to Crozier v Palazzo Corporation Pty Limited [2000] AIRC 1182; Fastidia Pty Ltd v Goodwin [2000] AIRC 223 (Fastidia); and McCarron v Commercial Facilities Management Pty Ltd[2013] FWC 3034.

[84] The applicants submit that, as a large employer with dedicated human resources specialists, Joss should have been expected to have genuinely engaged with all procedural fairness requirements.

[85] The applicants submit that, even if there is a valid reason for the termination of their employment, the dismissals are nevertheless harsh. The action was a disproportionate response to any performance issues: Potter v WorkCover Corporation (2003) 133 IR 458 and Annetta v Ansett Australia Ltd (2000) 98 IR 233. Further, the dismissals have severely impacted on the applicants. The age of the applicants means that finding alternative work is more difficult and opportunities for retraining are limited: B, C and D v Australian Postal Corporation[2013] FWCFB 6191 and Trimatic Management Services Pty Limited v Bowley[2013] FWCFB 5160.

[86] The applicants submit that the entirety of their service at HLHS should be taken into account not just the period in which they were employed by Joss. The applicants should not be disadvantaged because the cleaning services at government schools were privatised: Toms v Harbour City Ferries Pty Ltd [2014] FWC 2327. Further, the terms of the Contract require the contractor to offer continuity of employment to existing staff: Clause 4.3.1. I note that this submission is somewhat at odds with paragraph 14 of the applicants’ outline of submissions.

[87] The applicants submit that additional harshness flows from the fact that, notwithstanding their long and loyal service to HLHS, the dismissal letters contain no expression of regret.

[88] The applicants seek reinstatement with full compensation for lost remuneration and continuity of employment. They note that reinstatement is the primary remedy and submit that Joss has a substantial onus in establishing that reinstatement is not appropriate: Perkins v Grace Worldwide (Australia) Pty Ltd (1997) 72 IR 186.

[89] The applicants submit that, even if it is accepted that Ms Carey could request that they be removed from the school, Joss would still be obliged to take all reasonable steps to redeploy them elsewhere. The applicants accept that the location of HLHS means there are limited alternative options. They submit however that the unavailability of a job vacancy is only one factor to consider in deciding whether reinstatement is appropriate: Smith v Moore Paragon Australia Ltd [PR942856] and Rio Tinto Coal Australia Pty Ltd v Smith [PR957290].

[90] The applicants submit that principles drawn from matters concerning section 389 are also relevant: King v Catholic Education Office Diocese of Parramatta[2014] FWC 6413 and decisions referred to therein.

[91] The applicants note that Joss holds the Contract for an area around Grenfell which includes several locations within driving distance of HLHS. The applicants submit that Mr Wilson’s evidence that there are no vacancies at those sites should not be considered a barrier to reinstatement.

[92] The applicants note that different conclusions may be reached and different remedies awarded in each of the applications.

SUBMISSIONS ON BEHALF OF THE RESPONDENT

[93] The respondent provided a written outline of submissions prior to proceedings. Mr Joseph provided a further written outline which he supplemented with oral submissions.

[94] The respondent submits that the evidence showed that, prior to late 2013, the applicants had each demonstrated a capacity to carry out their duties to an acceptable standard. It submits that, from November 2013, the individual and collective performance of the applicants deteriorated in an alarming manner.

[95] The respondent notes that the applicants received verbal feedback from Ms Davis after each of the relevant inspections. Further, the applicants could see from the QMRs and the list of items for rectification what was required of them by way of improvement.

[96] The respondent submits that its concerns were further reinforced to the applicants during the site visits by Mr Wilson on 16 December 2013 and 21 January 2014. In addition, the 24 January QMR contained a very detailed list of unsatisfactory and incomplete work. The respondent submits that the applicants could not seriously suggest that they did not understand what was required of them especially given their level of experience.

[97] The respondent submits that the applicants had also been clearly informed that their performance was unacceptable and needed to improve. In the circumstances, the written warning of 29 January was a very reasonable response from Joss. The respondent notes that the warnings individually and separately set out the areas for rectification within each applicant’s areas of responsibility.

[98] Joss submits that it demonstrated its commitment to assisting the applicants to improve their performance by meeting with them and their representative on 18 February. It notes that it didn’t undertake any further QMRs until after that meeting. The respondent submits that the outcome of the meeting was agreement to the provision of further training, replacement of certain equipment, reconsideration of work schedules and an understanding that work performance had to improve.

[99] The respondent submits that, despite its concerns about the work allocation, it was the applicants who rebuffed attempts to change. Joss does not accept that the previous schedules were unclear but submits that it developed the new schedules to provide the applicants with every chance to improve their performance.

[100] Joss notes that it provided the agreed training on 4 March. It submits that, despite some initial improvement in the QMR scores, the cleaning standards were still well below an acceptable level. Joss notes that there is no challenge to the appropriateness of the inspections or the efficacy of the QMRs.

[101] The respondent notes that, despite the training, the verbal feedback and the written warning, there was a marked drop in the performance standards of the applicants at the end of March. It submits that there were continued failings in the same areas of work as were identified in previous QMRs.

[102] Joss submits that the applicants’ evidence that they were shocked to receive the written warnings of 1 April was just not believable. The applicants knew what was expected of them and all had accepted that Joss had a contractual obligation to maintain acceptable standards of cleaning at the school. Furthermore, the applicants knew their performance was being closely scrutinised and that substantial improvement was required.

[103] Joss submits that the final written warning was clear. The applicants were informed that their employment was in jeopardy if they did not improve. Joss rejects the applicants’ suggestion that the timing of the 10 April inspection was unfair. It also relies on Ms Maher’s evidence that, on that day, HLHS was in a poorer condition than any other school she had seen. Joss says that the very low QMR score at that inspection required its immediate action.

[104] The respondent submits that the applicants were provided with every opportunity to put anything on their behalf during the meeting of 11 April. It submits that nothing was advanced to show any acknowledgement by the applicants that they accepted that their performance was below standard or that it would improve. Joss submits that in the circumstances it had no real choice but to dismiss each of the applicants.

[105] Joss submits that there was a valid reason for each of the dismissals and that reason was sound and defensible. The Contract requires Joss to maintain a consistent and acceptable level of performance at each site. The QMRs are the fairest method by which this performance level could be judged. The respondent submits that it should be accepted that the system is unbiased and reasonable and that the relevant supervisors carried out their inspections in an appropriate manner.

[106] The respondent submits that, after providing warnings, training and new equipment, it was entitled to act as it did. It would not have been reasonable to have allowed the situation to continue on where there was no likelihood of improvement.

[107] The respondent submits that the applicants were each notified of the reasons for their dismissal and provided with an opportunity to respond. Joss rejects the suggestion that the dismissal were pre-planned. If the performance of the applicants had improved after the first warning there would have been no further disciplinary action.

[108] Joss notes that the applicants were represented by UV throughout the process. It submits that the applicants received warnings about their unsatisfactory performance. In addition to the written warnings of 29 January and 1 April, the lists of items for rectification which were attached to the QMRs were a practical means of alerting the applicants to the deficiencies in their performance. Joss rejects the submission that it did not provide procedural fairness to the applicants because it did not give them three written warnings. It submits that it complied with any such requirements as outlined in Fastidia and also that it had adopted procedures appropriate for an employer of its size.

[109] Joss accepts that the loss of a job can be harsh. It submits however that each of the applicants received a “fair go all round”. Joss submits that the fact that the site was a school was a relevant consideration as was the fact that the evidence demonstrated that cleaning standards at HLHS had substantially improved since the dismissal of the applicants. The respondent rejects the suggestion that it should have arranged for an inspection by a government inspector. It was obliged to manage its own employees.

[110] The respondent submits that if, contrary to its submissions, any of the dismissals is found to be unfair, reinstatement should not be ordered. It would be highly impracticable. There is no indication that any of the applicants acknowledged any deficiency in their performance or showed a willingness to improve. The respondent submits that the evidence disclosed that the client is much happier with the cleaning standards achieved by the new employees.

[111] Joss also notes that the evidence is that there are no vacancies within a 75 km radius of Grenfell even if the applicants could be placed elsewhere. The respondent submits that if compensation was to be awarded it should be at the lower end of the scale. The applicants had been employed by Joss for less than three years and had received appropriate warnings and opportunities to improve over a period of five months.

CONCLUSIONS

[112] Section 396 of the Act sets out four matters which must be decided in applications of this type before the merits of a claim are considered. Those matters are:

“(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy.”

[113] As will have been apparent from paragraph 1 of this decision each of the applications was made within the period required in subsection 394(2). There is no dispute that each of the applicants is a person protected from unfair dismissal. Paragraphs (c) and (d) of section 396 have no relevance in the present matters.

[114] Section 385 provides that a person has been unfairly dismissed if FWC is satisfied that:

“(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.”

[115] Paragraph (a) is clearly met in relation to each of the applicants. Paragraphs (c) and (d) have no relevance. Consequently it is to paragraph (b) that my attention must be directed. In considering whether the dismissal of any of the applicants was harsh, unjust or unreasonable it is relevant to refer to the comments of McHugh and Gummow JJ in Byrne & Frew:

“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.” (at page 72)

[116] It is necessary to turn to section 387 which sets out the factors which must be taken into account by FWC in deciding whether a dismissal is harsh, unjust or unreasonable. Those factors are as follows:

“(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 FWC considers relevant.”

[117] The first matter which must be taken into account is whether there was a valid reason for each or any of the dismissals. The meaning of valid reason has been the subject of much consideration by the Courts as well as by this Commission and its predecessors. There seems to be general acceptance of the often quoted words of Northrop J in Selvachandran:

“In its context in s 170DE(1), the adjective “valid” should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s170DE(1). At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘be applied in a practical, commonsense way to ensure that’ the employer and employee are each treated fairly, ...”. (page 373)

[118] It is clear that determining whether or not any, or all, of the applicants was carrying out their duties to an acceptable level involves an element of subjectivity. I accept that individuals may very well have different standards of what they consider to be an acceptable or unacceptable level of cleanliness. In this regard Mr Wilson and Ms Mann may have higher expectations than Ms Davis which may have led to the very low QMR score for the inspection on 24 January. It may also be that an inspection conducted part way through a vacation clean may result in a poor outcome for those areas which had not been cleaned since the end of the previous school year.

[119] However, even if the QMR of 24 January is set aside, there are still many inspections the results of which are below an acceptable level. Ms Davis did all of the other inspections. My observation of Ms Davis is that she took a fair and balanced approach to her role and I accept her evidence that she approached all of her inspections on the same basis. There is nothing to suggest that Ms Davis had an ulterior motive in “failing” the applicants in the November 2013 QMR or those that she conducted afterwards. I accept Ms Davis’s evidence that the cleaning standards of each of the applicants deteriorated from that time onwards to a level that was unacceptable.

[120] The applicants complain that Ms Davis was nitpicking. However it is pertinent to remember that, from at least April to October 2013, she assessed the cleaning standards at HLHS as acceptable. The applicants requested another person carry out the inspections however they did not like the results. I do not accept that it was necessary to call in a Public Works Inspector. In my view it is up to Joss to set its own standards and to ensure that they are met. Further, regardless of how the KPIs in the Contract are scored, an employer does not have to suffer a financial penalty or be in danger of losing a major contract before it is permitted to address concerns it has about the performance of its employees.

[121] The evidence of both Mr Loy and Mr Wilson is that a QMR score of 85% or less is rated as a fail. It is clear from the evidence of Ms Davis that the cleaning standards were unacceptable from November 2013 onwards with the highest QMR score being 85% and the lowest, disregarding that of 24 January, 54%. An examination of the items for rectification shows that the failings are distributed across the areas of responsibility of each of the applicants. I am satisfied that this evidence discloses performance issues which give rise to a valid reason for the dismissal of each of the applicants.

[122] I now turn to consider what might be termed “procedural fairness” factors in section 387, paragraphs (b), (c) and (d). The applicants were each informed of the reason for the termination of their employment. It is clear that, despite what he said in re-examination, Mr Loy was intending to dismiss the applicants at some point proximate to his email of 13 February. If the dismissals had occurred then, it is probable that I would have found that the applicants had not been provided with a proper or sufficient opportunity to respond.

[123] However, several things occurred after that time. Joss met with the applicants and their representative on 18 February to discuss various issues such as the cleaning standards, work schedules, refresher training, equipment and the provision of a hard floor specialist for the Hall. I note that the letters of 20 February which confirmed the outcome of this meeting refer to an agreed four week time frame for improvement.

[124] New work schedules were issued, albeit with minimal changes. In the circumstances where there was resistance from the applicants to alterations to their work allocation this was understandable.

[125] Training was also provided on several different pieces of equipment. I note that at least two of the applicants did not consider this training to be useful however Joss made the effort of having four of its supervisors attend HLHS for this purpose.

[126] I accept that by 28 March Mr Loy had made up his mind that the applicants were going to be dismissed. From that time on there was probably nothing that the applicants could have said which would have changed the ultimate outcome although I accept Ms Corcoran’s evidence that she went into the meeting of 11 April with an open mind. Of course an improvement in the cleaning standards would have halted the process in its tracks.

[127] I consider that the applicants were each provided with an opportunity to respond although the final period of the process was flawed by Mr Loy’s mindset. Each of the applicants was represented by a support person of their choice at the relevant meetings.

[128] Each of the applicants was warned about their performance both verbally and in writing however I do note that the warnings of 1 April do not specifically mention that dismissal was a possibility if there was no improvement in their performance.

[129] I have had regard to paragraphs (f) and (g) of section 387. The respondent’s form F3 notes that Joss had 700 full time employees at the time the form was completed. It has dedicated human resource management specialists. Although the performance management process was not perfect I am satisfied that these factors were reflected in the procedures which were followed in effecting the dismissals.

[130] Other matters which I consider to be relevant concern the particular personal and economic circumstances of each of the applicants. Although they had only been employed by Joss since July 2011 each of the applicants had provided very long periods of service to HLHS apparently without any blemish. Further, the age of the applicants and their country location means that finding alternate work is very difficult. The opportunities for retraining for work in other fields is also restricted.

[131] I accept the evidence of each of the applicants as to the impact which the dismissals have had upon their self esteem, health and financial circumstances.

[132] In all of the circumstances in each of these respective cases and having taken into account the factors in section 387 and my findings thereon, again in each respective case, I have determined, on balance as follows:

● The dismissal of Ms Doig was harsh;
● The dismissal of Ms Smith was harsh;
● The dismissal of Ms Hockings was harsh.

[133] It follows these determinations and the other matters addressed in paragraphs 114 and 115 above, that each of the dismissals was unfair.

[134] Sections 390, 391 and 392 of the Act deal with remedies for unfair dismissals. I am satisfied that the provisions of section 390(1) and (2) have been met in each of these cases. Subsection (3) provides that an order for compensation must not be made unless FWC is satisfied that reinstatement is inappropriate.

[135] I have carefully considered all of the material which was put on the question of remedy and, in particular, whether reinstatement is appropriate. I have decided, on balance, that reinstatement is inappropriate in each case.

[136] In arriving at this conclusion I have paid particular attention to the age of each of the applicants and the difficulties which each has had, and will presumably continue to have, in finding alternative employment. However I have found that there was a valid reason for each of the dismissals based on the performance of each applicant. None of the applicants accepted that there was any problem with their performance. Each said that they were cleaning as they always had and that the school was clean. Each sought to explain the results of the low QMR scores as being due to the supervisor being unfair or nitpicking.

[137] I have no confidence that reinstatement of any of the applicants to their former position at HLHS or to a similar position at another site or sites would do anything other than continue the performance issues which led to the dismissals. In these circumstances I do not consider reinstatement to be appropriate.

[138] Pursuant to section 390(3)(b) I consider that, in all circumstances of each of these matters, it is appropriate to make an order for the payment of compensation. Section 392(2) requires that, in determining an amount for the purposes of such an order, FWC must take into account all the circumstances of the case including:

“(a) the effect of the order on the viability of the employer’s enterprise; and

(b) the length of the person’s service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that FWC considers relevant.”

[139] The question of the calculation of compensation has been dealt with in a number of Full Bench decisions such as Tabro Meat Pty Ltd v Heffernan[2011] FWAFB 1080 and, more recently, Haigh v Bradken Resources Pty Ltd[2014] FWCFB 236 (Haigh). These decisions confirm the approach in Sprigg v Paul’s Licensed Festival Supermarket (1998) 88 IR 21 which is summarised as:

“1. Estimate the amount the employee would have received or would have been likely to receive if the employment had not been terminated,
2. Deduct monies earned since termination,
3. Deductions for contingencies,
4. Calculate any impact of taxation,
5. Apply the legislative cap.” (Haigh @ para 10)

[140] There was nothing before me as to the effect of any order for compensation on the viability of the respondent’s business. I am satisfied that the orders which I propose to make would not have an adverse effect on such viability.

[141] The length of employment of each of the applicants with Joss was a little under three years. That is a period which supports the making of an order. I note of course that the applicants had each been employed at HLHS for very lengthy periods of time.

[142] There is always a speculative element involved in assessing the remuneration that a person would have or would have been likely to have received had it not been for their dismissal. I consider that it is reasonable to assume that, but for their dismissal, each of the applicants would have remained in the employment of the respondent for nine weeks. This is based on my assessment of the period over which further opportunities for improvement could have been provided and the results reasonably considered. My observation however is that such improvement would ultimately have not been achieved and dismissal would have inevitably followed.

[143] The only material before me on which I am able to calculate the actual amount of remuneration for each applicant is that which was contained in the respondent’s Form F3 in respect of each application. That material is set out at paragraph 10 above. On that basis I calculate that for the period of nine weeks Ms Doig would have received $6,011.64, Ms Smith $4,338.09 and Ms Hockings $5,785.74.

[144] I am satisfied that each of the applicants has made appropriate efforts to mitigate her loss. Ms Doig and Ms Hockings have applied for many positions and Ms Smith has sought more hours in her other part-time job.

[145] Neither Ms Doig nor Ms Hockings had earned any remuneration between the date of their dismissal and the date on which they gave their evidence which was more than nine weeks after the dismissals. Consequently there is nothing to be deducted from the relevant amounts set out in paragraph 143 above. The only remuneration which Ms Smith earned in that period related to her other part-time job in which she was also engaged whilst employed by Joss. It is not appropriate that any of those earnings be deducted from the relevant amount in paragraph 143.

[146] The anticipated period of employment has passed and there is nothing before me which persuades me that there is any sound basis for making any deduction for contingencies.

[147] The amounts of $6,011.64 in respect of Ms Doig, $4,338.09 in respect of Ms Smith and $5,785.74 in respect of Ms Hockings are each less than the compensation cap in section 392(5). I leave the question of taxation to the parties to determine as required by law. Orders reflective of this decision are issued today in Prints PR559924, PR559925 and PR559926.

[148] It should be noted that, in deciding each of these matters, I have given consideration to the need to ensure that a “fair go all round” has been accorded to each of the parties as provided in section 381(2) of the Act..

COMMISSIONER

Appearances:

G Starr with H Pararajasingham from United Voice on behalf of each of the applicants.

A Joseph of Counsel with M Kennedy solicitor, for Colin Joss & Co Pty Ltd trading as Joss Facility Management

Hearing details:

2014.

Orange.

October, 21 and 22.

Sydney.

November, 25 and 26.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR559919>