Nicole Finch v Titles Strata Management Pty Ltd T/A Titles Strata Management

[2020] FWC 6565

[2020] FWC 6565

FAIR WORK COMMISSION

DECISION NO. 2

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

Nicole Finch
v
Titles Strata Management Pty Ltd T/A Titles Strata Management
(U2019/13842)

COMMISSIONER CAMBRIDGE SYDNEY, 9 DECEMBER 2020

Unfair dismissal - no valid reason for dismissal - significant procedural deficiencies - harsh, unjust and unreasonable dismissal - compensation Ordered.

[1] This matter involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009 (the Act). The application was lodged at Sydney on 10 December 2019. The application was made by Nicole Finch (the applicant), and the respondent employer has been identified to be Titles Strata Management Pty Ltd T/A Titles Strata Management ABN: 32 001 111 931 (the employer).

[2] The application indicated that the date that the applicant’s dismissal took effect was 29 November 2019. Consequently, the application was made within the 21 day time limit prescribed by subsection 394 (2) of the Act.

[3] The employer’s Form F3 response document raised jurisdictional objections to the application asserting inter alia, that the applicant’s period of employment did not meet the minimum employment period necessary for a person to be protected from unfair dismissal. Following unsuccessful conciliation of the claim, on 5 March 2020, Catanzariti VP of the Fair Work Commission (the Commission) sent a letter to the applicant which inter alia, required the applicant to provide a statement together with documents or evidence to support her claim that she had served the minimum employment period. Subsequently, the jurisdictional objection raised by the employer required determination by the Commission.

[4] In a Decision issued on 14 July 2020, [2020] FWC 3675, the Commission determined that the applicant had completed the minimum employment period as the employer was not a small business. The matter was then listed for further proceedings by way of Mention and Directions fixed for 10 am on 24 July 2020. Directions were issued for the Parties to file and serve evidence and other material in accordance with a timetable that listed the matter for arbitration proceedings on 12 October 2020.

[5] At the Hearing that was held on 12 October 2020, each of the Parties were unrepresented. The applicant gave evidence as the only witness called in support of her unfair dismissal claim. The employer’s Managing Director, Mr John Ivica Koprivnjak, conducted the case on behalf of the employer, and he was one of three witnesses who provided evidence for the employer.

Factual Background

[6] The applicant commenced employment on 15 January 2019, and she was dismissed on 22 November 2019. The applicant was advised of her dismissal by way of a text message sent to her by Mr J I Koprivnjak, the employer’s Managing Director.

[7] The applicant was engaged in a position that was described as the Business Development Manager (BDM). The primary role performed by the applicant in the BDM position involved attracting new business so as to expand the employer’s business operations. The applicant was provided with a contract of employment document which indicated that her ordinary hours of work would be between 8:30 am to 5 pm Monday to Friday.

[8] The employer operates a business which provides a range of Strata Management services including the facilitation to its clients of engineering, building maintenance, legal services, gardening/landscaping, painting, and homeowners warranty claims. The employer operates from business premises located in the Sydney suburbs of Drummoyne and Blacktown. The applicant was engaged to work at and from the employer’s Drummoyne office. However, the applicant’s role as a BDM involved her meeting with clients or prospective clients, at various locations and attending after-hours work events and networking functions such as industry dinners.

[9] The applicant worked under the general day to day direction of the employer’s National Operations Manager, Mr B Koprivnjak, who is the son of the employer’s Managing Director Mr J I Koprivnjak. The applicant also frequently engaged with and was directed in her work by Mr J I Koprivnjak. In September 2019, the employer engaged Mr D Varvian as Branch Manager at the Drummoyne office.

[10] In early November 2019, difficulties began to emerge in respect of the interpersonal workplace relationship between the applicant and Mr Varvian. Mr Varvian had, since his appointment to the position of Branch Manager in September 2019, introduced a number of changes to the business operation of the Drummoyne office. The changes that had been introduced by Mr Varvian included requirements for the applicant to provide an increased level of electronic diary information about her business meeting details. The applicant resisted some of these changes, and difficulties in the working relationship between the applicant and Mr Varvian extended to include Mr B Koprivnjak and escalated between 13 and 19 November 2019.

[11] On Tuesday, 19 November 2019, the applicant sent a text message to Mr J I Koprivnjak requesting that he meet with her to have coffee to discuss “what’s happening in the office”. Initially Mr J I Koprivnjak agreed to the applicant’s request for a “coffee discussion”. However, later that day Mr J I Koprivnjak sent the applicant a text message indicating that he was delayed “in the city” and he subsequently arrived at the Drummoyne office in the late afternoon. Instead of having a “coffee discussion” with the applicant, Mr J I Koprivnjak directed the applicant into a boardroom for a meeting that was also attended by Mr B Koprivnjak.

[12] During the meeting that was held on 19 November, the applicant raised her concerns about the difficulties that she had experienced since Mr Varvian had introduced various changes to a number of operational procedures at the Drummoyne office. Mr B Koprivnjak responded to the applicant’s concerns by producing a list of the new business activity that had been attracted during the year, and he indicated that the applicant was not meeting the employer’s expectations regarding securing new business. The meeting involved considerable discussion and contest about whether the applicant was meeting her key performance indicators. The employer was clearly indicating its concern regarding the work performance of the applicant, and the applicant rebutted various issues of alleged inadequate work performance.

[13] On the following day Wednesday, 20 November 2019, Mr Varvian sent the applicant an email inquiring why she had not arrived at work until 12:04 pm that day. The applicant responded by indicating that she had previously obtained approval from Mr J I Koprivnjak to attend a school orientation session with her son that morning, and that was the reason for her late arrival at the Drummoyne office.

[14] Following the exchange of emails between the applicant and Mr Varvian, Mr J I Koprivnjak sent the applicant an email asking the applicant about her claim for leave for the orientation hours. The applicant responded to this email indicating that she had not yet made a claim for leave for the periods of absence for the school orientation sessions with her son, and she further advised of details regarding other work that she was performing which included her attendance at an out of hours event on the forthcoming Friday evening. The applicant asked Mr J I Koprivnjak whether her attendance at this out of hours event would cover her for the hours involved in the school orientation sessions or whether she should claim annual leave.

[15] On the following day, Thursday, 21 November 2019, the applicant sent a text message to Mr J I Koprivnjak advising that she had a migraine and would not be attending work on that day. On the following day, Friday, 22 November 2019, the applicant sent another text message to Mr J I Koprivnjak advising that she still had a migraine and would not be attending on that day. Further, the applicant advised Mr J I Koprivnjak that she had a medical certificate to support her absence.

[16] Later on Friday, 22 November 2019, in response to the applicant’s text message advising of her absence, Mr J I Koprivnjak sent a text message to the applicant which inter alia, provided the applicant with one weeks’ notice of the termination of her employment. The text message advice of dismissal concluded by stating: “Thanks for your efforts, but I think you would be more suited in another industry. Regards, John Koprivnjak.”

[17] On Monday, 25 November 2019, the applicant attended the Drummoyne office of the employer and discovered that her office had been cleared of her personal belongings. The applicant had agreed to conduct a handover with Mr B Koprivnjak. However certain difficulties arose, and the applicant left the office without conducting the anticipated handover.

[18] The applicant subsequently returned her employer provided mobile telephone and laptop computer. The employer maintained that the mobile telephone and laptop had been damaged or that relevant material had been deleted from the devices. The applicant asserted that the devices were returned in good order.

[19] On Wednesday, 27 November 2019, Mr J I Koprivnjak sent an email to the applicant which attached a copy of a termination of employment letter dated 22 November 2019. Mr J I Koprivnjak stated that the termination of employment letter dated 22 November 2019, had been posted to the applicant on 22 November 2019.

[20] The applicant was paid wages up until Friday, 29 November 2019. However, the applicant was not paid her accrued annual leave entitlements of some 82 hours, and this amount remained unpaid at the time of the Hearing, 12 October 2020.

[21] Approximately 9 ½ weeks after the dismissal, the applicant obtained other employment. The applicant has not sought reinstatement as a remedy for her alleged unfair dismissal but has instead sought payment of monetary compensation.

The Case for the Applicant

[22] The applicant made oral submissions during the Hearing, and she provided documentary material on 21 August 2020, which included a mixture of assertions of fact and submissions. The applicant submitted that her dismissal was unfair.

[23] The submission material provided by the applicant asserted inter alia, that in the 11 ½ months of her employment she had not been given any warnings prior to the termination of her employment. The applicant submitted that in the last few weeks of her employment she had been subjected to aggressive behaviour, ostracised, and ganged up on by, in particular, Mr Varian and Mr B Koprivnjak.

[24] The submissions made by the applicant also mentioned that the employer had withheld her 82 hours annual leave payment. The applicant submitted that the termination of her employment was not work related and it had been done in a very nasty manner.

[25] The applicant made further submissions which asserted that her employment had been okay until Mr Varian was employed at the Drummoyne office. The applicant said that once Mr Varian came on board everything became very toxic in the workplace. The applicant stressed that she had not been given any warnings, letters or emails saying anything about her work performance. Further, the applicant said that if any warnings had been issued to her during the period of her employment they would have been produced by the employer as evidence in the proceedings.

[26] The applicant also submitted that her dismissal was unfair because she had not been paid her annual leave on the way out the door, and further, the dismissal was not professional and very unfair.

[27] In summary, the applicant submitted that her dismissal was unfair. The applicant made submissions which clarified that she was not seeking reinstatement with the employer as remedy for her unfair dismissal, but instead, financial compensation for the remuneration lost during the period of 9 ½ weeks after her dismissal and before she found alternative employment.

The Case for the Employer

[28] Mr J I Koprivnjak presented the case for the employer and he submitted that the dismissal of the applicant was not unfair. Mr J I Koprivnjak filed a written outline of submissions document dated 8 October 2020, and he supplemented this material with verbal submissions during the Hearing.

[29] The written submissions made by the employer acknowledged that the applicant was dismissed, and she was a person protected from unfair dismissal. However, the employer submitted that the termination of employment of the applicant was not harsh, unjust or unreasonable, and, in the alternative, the termination was a genuine redundancy.

[30] The employer’s written submissions were constructed by reference to s. 387 of the Act. The employer submitted that there was a valid reason for the dismissal of the applicant, and that the valid reason related to the applicant’s failure to attend work during the stipulated working hours of 8:30 am to 5 pm. Further, the valid reason for the dismissal of the applicant involved her failure to properly record her work activities in the employer’s electronic diary, together with her failure to achieve her key performance indicators, and her failure to obtain a Strata Certificate of Registration. The employer submitted that these matters established multiple valid reasons for the dismissal of the applicant.

[31] The submissions made by the employer asserted that the applicant was notified of the reasons for her dismissal on Friday, 22 November 2019, and that she had been given an opportunity to respond to the reasons for her dismissal at the meeting held on Tuesday, 19 November 2019. Further, the employer’s submissions stated that it was a relatively small employer with no human resource specialists to assist it. Therefore, according to the employer’s submissions, the procedures that it followed in respect of the termination of the applicant’s employment were appropriate having regard to the size of the employer and its lack of human resource expertise.

[32] The submissions made by the employer also included an alternative position whereby it was asserted that the applicant had been made genuinely redundant. The employer referred to the meaning of genuine redundancy as set out in s. 389 of the Act. The employer submitted that the position that was held by the applicant was not replaced, and it was not reasonable to redeploy her within the business operations of the employer.

[33] The supplementary oral submissions that were made by Mr J I Koprivnjak rejected the applicant’s assertion that she had been bullied in the workplace. Mr J I Koprivnjak said that the employer had assisted the applicant on numerous occasions, but she was unwilling to comply with her employment contract. Mr J I Koprivnjak said that as far as he was aware the applicant had not been harshly or unreasonably dismissed. Further, Mr J I Koprivnjak stated that the employer had invested a lot of money into the applicant to get her up to speed, and the employer would not want to sack the applicant.

[34] Mr J I Koprivnjak further submitted that the employer had given the applicant multiple warnings and that she was not harshly or unreasonably dismissed. Mr J I Koprivnjak said that the employer had tried multiple times to get around to talk to the applicant, and that the employer had given her warnings but that after 11 months it was untenable to keep on going because the applicant was not very responsive to following company procedures.

Consideration

[35] Following from the earlier determination of the jurisdictional objection raised by the employer whereby the Commission found that the applicant had completed the minimum employment period as the employer was not a small business, this matter has subsequently required determination of another jurisdictional objection which was advanced by the employer as an alternative position to its primary assertion that the dismissal of the applicant was not unfair. This alternative position asserted that the dismissal of the applicant was a case of genuine redundancy. However, there was a manifest absence of enthusiasm adopted by the employer in support of its alternative position regarding the alleged genuine redundancy of the applicant. Although it appeared that the alternative position regarding the genuine redundancy of the applicant was not strenuously pursued by the employer, it is a matter that the Commission must deal with in accordance with the Act.

[36] Relevantly, s. 396 of the Act requires that the Commission must decide a number of specified matters before any consideration is undertaken of the merits of any application made under s. 394. In this instance, the jurisdictional objection arises from the provisions of subsection 396 (d) of the Act. Section 396 of the Act is in the following terms:

“396 Initial matters to be considered before merits

The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

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

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

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

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

The Genuine Redundancy Question

[37] It would seem that a person cannot be unfairly dismissed if inter alia, the dismissal was a case of genuine redundancy. This appears to be the clear corollary of subsection 385 (d) of the Act. Section 385 of the Act is in the following terms:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

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

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

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

[38] Section 389 of the Act provides for a meaning of genuine redundancy:

“389 Meaning of genuine redundancy

(1) A person’s dismissal was a case of genuine redundancy if:

(a) the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and

(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

(2) A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:

(a) the employer’s enterprise; or

(b) the enterprise of an associated entity of the employer.”

[39] An examination of the provisions of s. 389 of the Act identifies three specific elements which, if satisfied in combination, determine whether or not a dismissal was a case of genuine redundancy. Subsection 389 (1) contains two affirmative elements, both of which must be established, in order to allow for a finding that a dismissal was a case of genuine redundancy, and subsection 389 (2) contains one negatory element which, if established, renders the dismissal not to be a case of genuine redundancy.

[40] For convenience, the three elements identified within s. 389 can be abbreviated and given appropriate headings. The first affirmative element which is extracted from subsection 389 (1) (a) has been described as “job lost due to operational requirements”, the second affirmative element extracted from subsection 389 (1) (b) has been called “consultation obligations”, and the third negatory element found in subsection 389 (2) is abbreviated as “reasonable redeployment”.

[41] Consequently, the consideration of the question of whether the dismissal of the applicant was a case of genuine redundancy has involved examination of the three separate elements contained in s. 389 of the Act, such that, each of these three separate elements must, in combination, be satisfied in order to make any finding of genuine redundancy. This means that the two affirmative elements contained in subsection (1) must be established, and the negatory element found in subsection (2) must not be present in order to make a finding that a particular dismissal was a case of genuine redundancy.

Job Lost Due to Operational Requirements

[42] In this case, the evidence has established that the BDM position that the applicant occupied was not filled by way of any recruitment of a replacement following the dismissal of the applicant. It appeared that the employer essentially reconsidered its decision to engage any person in a BDM position. However, given the timing of the engagement of Mr Varvian and the redistribution of work undertaken by Mr B Koprivnjak to Mr Varvian which allowed Mr B Koprivnjak to undertake more BDM work, the dismissal of the applicant may not have satisfied the notion that the BDM position was actually lost due to operational requirements.

[43] However, even if the first element of s. 389 of the Act had been established, that is, the employer no longer required the job of the applicant as a BDM to be performed by anyone because of changes in the operational requirements of the employer's enterprise, there was a total absence of any evidence that the employer engaged in any consultation about any asserted redundancy. Further, there was no mention of redundancy in either the text message advice of dismissal or the subsequent letter of termination of employment.

Consultation Obligations

[44] The second element contained in s. 389 of the Act requires a positive finding that the employer had complied with any Award or Agreement obligations to consult about the redundancy. In this instance, there was no evidence or submission made that the employer had complied with any Award or Agreement obligations in respect of the asserted redundancy of the applicant.

[45] Consequently, there was a manifest absence of compliance with the second element identified in s. 389 of the Act, and therefore the dismissal of the applicant could not satisfy the meaning of genuine redundancy. In such circumstances it is unnecessary to consider the reasonable redeployment element contained in subsection 389 (2) of the Act. The dismissal of the applicant was not a case of genuine redundancy, and the Commission must therefore turn to consideration of whether the dismissal of the applicant was harsh, unjust or unreasonable.

Harsh, Unjust or Unreasonable

[46] Section 387 of the Act contains criteria that the Commission must take into account in any determination of whether a dismissal is harsh, unjust or unreasonable. Section 387 of the Act is in the following terms:

“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.

S. 387 (a) - Valid Reason for the Dismissal Related to Capacity or Conduct

[47] The reasons for the dismissal of the applicant were stated by the employer in the termination of employment letter dated 22 November 2019. The termination of employment letter mentioned, inter alia, that the applicant had failed to adhere to the following obligations to the employer:

- Adhering to company policies and procedures

- Maintain your Strata agents’ licence or certificate of registration

- Meet Key Performance Indicators

- Failed to turn up to work at 8:30 am and left work at 3:30 pm on a regular basis without proper reason or client meetings scheduled in your calendar. Therefore, you attended personal events on company time.

[48] Notwithstanding the lack of specificity in respect of the first and third reasons for dismissal that were mentioned in the termination of employment letter, any reason(s) for dismissal of the nature relied upon by the employer could only represent valid reason for dismissal if there was evidence that the applicant had been adequately warned that the conduct or performance in question may lead to dismissal if not rectified. The evidence has established that the matters that were relied upon as valid reasons for the dismissal of the applicant were not the subject of any clear warning and therefore could not represent sound, well-founded and defensible reasons for the dismissal of the applicant.

[49] Conduct such as that which involved the applicant’s consistent late arrival at work could establish a valid reason for her dismissal only if there was evidence to establish that the applicant had been warned that if she continued to arrive late for work her employment may be terminated. The applicant asserted that the employer was aware of her need to start later than the stipulated commencement time of 8:30 am in order to take her son to school, and that she understood that the nature of her work would require a degree of flexibility such that the start and finish times that were stipulated in her employment contract would not be strictly observed. Importantly, there was no evidence that the applicant was given any indication that her timeliness in attending for work was a matter of concern to the employer. The following evidence provided by the applicant during her cross-examination relevantly summarised the circumstances:

“Would you say that the employer gave you plenty of opportunity to improve during the period and to turn up to work on time, and assisted you?--- There was no discussions. There was no meetings to say that there was anything wrong with my work performance; there was nothing.” 1

[50] Similarly, to be a valid reason for dismissal, any failure on the part of the applicant to meet reasonable key performance indicators would require evidence of warning that such failure might lead to dismissal unless performance improved. In this case, the absence of any evidence of warning regarding the performance and conduct issues that the employer subsequently relied upon as reasons for dismissal, has established that those reasons could not be sound, well-founded and defensible.

[51] Consequently, the particular reasons relied upon by the employer for the applicant’s dismissal which involved her alleged inadequate performance and conduct matters such as her late arrival at work, could not represent valid reasons for her dismissal.

S. 387 (b) - Notification of Reason for Dismissal

[52] The employer provided notification of dismissal by way of a text message which was sent to the applicant on Friday, 22 November 2019. The notification of dismissal in this manner was extraordinarily callous and unnecessarily harsh.

[53] Communication of the advice of dismissal by electronic means such as email or text message, should generally be avoided. Unless there is some compelling reason like extensive distance or genuine safety concern, advice of dismissal from employment is a matter of such significance that it should be conveyed in person.

[54] Even in employment circumstances where text message, email or other electronic communications are ordinarily used, the advice of termination of employment is a matter of such significance that basic human dignity requires that dismissal be conveyed personally with arrangements for the presence of a support person and documentary confirmation. An employer who provides advice of dismissal by text message or email without reasonable justification, will often risk an outcome of a finding that the dismissal was unfair even though there was valid reason for dismissal which, together with other considerations, would have otherwise avoided any finding of unfairness.

S. 387 (c) - Opportunity to Respond to any Reason Related to Capacity or Conduct

[55] The applicant was not provided with any opportunity to respond to the reasons that the employer sought to rely upon as basis for her dismissal.

S. 387 (d) - Unreasonable Refusal to Allow a Support Person to Assist

[56] To the extent that the meeting that occurred on Tuesday, 19 November 2019, represented discussions in connection with the subsequent dismissal of the applicant, there was no opportunity for the applicant to be provided with assistance from a support person at that meeting.

S. 387 (e) - Warning about Unsatisfactory Performance

[57] There was no evidence that the applicant was given warning that any unsatisfactory aspects of her performance were being considered as potential basis for her dismissal.

S. 387 (f) - Size of Enterprise Likely to Impact on Procedures

[58] The employer is not a business operation of significant size, and appropriate recognition for a degree of informality and flexibility in respect to employment related procedures has been provided.

S. 387 (g) - Absence of Management Specialists or Expertise Likely to Impact on Procedures

[59] There was no evidence that the employer had dedicated human resource management specialists. The absence of human resource management specialists and the level of informality that would understandably exist in a medium size business enterprise, could not justify the adoption of the unnecessarily abrupt and perfunctory manner in which the applicant was advised of the termination of her employment. The dismissal of the applicant by way of text message in response to the applicant’s advice that she was absent from work because of ill health for which she would provide medical certification, demonstrated that Mr J I Koprivnjak adopted an entirely inappropriate procedure when dealing with the dismissal of the applicant.

S. 387 (h) - Other Relevant Matters

[60] The failure to pay all due entitlements arising in respect to the termination of employment at the time of termination or shortly thereafter, would likely render the dismissal to have been unlawful. Almost a year after the dismissal these entitlements have not been paid, and it was quite disturbing to hear Mr J I Koprivnjak casually state; “I still need to give her her annual leave payments.” 2 The delay with these payments reflects very poorly upon the character of Mr J I Koprivnjak, and has established an unlawful element of the dismissal, which has further provided that the dismissal of the applicant was unjust and unreasonable.

Conclusion

[61] The determination of this unfair dismissal claim has involved consideration of firstly, whether the dismissal of the applicant was a case of genuine redundancy and secondly, whether the dismissal of the applicant was harsh, unjust or unreasonable.

[62] Upon careful examination of all of the evidence and submissions, the dismissal of the applicant on Friday, 22 November 2019, was not a case of genuine redundancy.

[63] Further, in this case, the reasons for the dismissal of the applicant related to conduct and performance issues for which no warning was provided, and given the nature of these performance and conduct issues, clear warning was necessary before these reasons could represent valid reasons for dismissal. Therefore, the reasons for the dismissal of the applicant were not sound, defensible, or well-founded. There was not a valid reason for the dismissal of the applicant that related to her capacity or conduct.

[64] The employer adopted an unnecessarily abrupt and perfunctory procedure to notify and implement the dismissal of the applicant. The dismissal of the applicant was without valid reason and implemented improperly. The applicant was entitled to some level of consultation prior to the employer implementing the decision to dismiss. The dismissal of the applicant was a callous act, implemented with undue haste and further exacerbated by the failure of the employer to pay all due entitlements to the applicant at the time of dismissal or shortly thereafter. The dismissal of the applicant was unjust, unreasonable, and unnecessarily harsh.

[65] In summary, the dismissal of the applicant was without valid reason involving established misconduct or capacity inadequacy. Further, the dismissal involved an entirely unjust and unreasonable process including the complete absence of any opportunity for the applicant to be heard before the decision to dismiss was made. Consequently, upon analysis of the various factors that are identified in s. 387 of the Act, an objective and balanced evaluation of all of the relevant circumstances has provided compelling basis to establish that the dismissal of the applicant was harsh, unjust and unreasonable. Therefore, the applicant’s claim for unfair dismissal remedy has been established.

Remedy

[66] The applicant has not sought reinstatement as a remedy for her unfair dismissal. In the circumstances, particularly as the employment was irreparably damaged by the conduct of the employer surrounding the dismissal, reinstatement would not be an appropriate remedy.

[67] I have decided that compensation would be an appropriate remedy for the applicant’s unfair dismissal, and I turn to the factors which involve the quantification of any amount of compensation.

[68] Section 392 of the Act prescribes certain matters that deal with compensation as a remedy for unfair dismissal. I have approached the question of compensation having regard for the guidance that can be identified in the Full Bench Decisions of, inter alia; Sprigg v Paul’s Licensed Festival Supermarket 3 (Sprigg); Smith and Ors v Moore Paragon Australia Ltd 4 and more recently, the cases of; McCulloch v Calvary Health Care Adelaide5; Balaclava Pastoral Co Pty Ltd v Nurcombe;6 and Hanson Construction Materials v Pericich7(Pericich).

[69] Firstly, I confirm that an Order for payment of compensation to the applicant will be made against the respondent employer in lieu of the reinstatement of the applicant.

[70] Secondly, in determining the amount of compensation that I Order, I have taken into account all of the circumstances of the matter including the factors set out in paragraphs (a) to (g) of subsection 392 (2) of the Act.

[71] There was no evidence provided which established that an Order of compensation would impact on the viability of the employer’s enterprise.

[72] The applicant had been employed for a period of 11 ½ months. The applicant would have been likely to have received remuneration of approximately $2,300.00 per week if she had not been dismissed.

[73] There was evidence which suggested that the employment of the applicant may have finalised as a result of performance inadequacies that may not have been rectified after proper processes were adopted which included clear warning and consultation. Alternatively, if proper procedure and consultation had been adopted by the employer, the applicant may have been able to rectify any concerns and/or otherwise persuade the employer to adopt some alternative course of action which did not involve her dismissal from employment.

[74] In considering all of these issues, I have determined that the employment of the applicant if it had been the subject of a reasonable and properly implemented performance improvement program, would have been likely to have continued for a further 12 weeks after her unfair dismissal.

[75] For the purposes of calculation of remuneration that the applicant would have received or would have been likely to receive if she had not been dismissed, I have considered that the employment of the applicant would have continued for a further 12 weeks. Therefore, the total remuneration that the applicant would have received in the notional period of 12 weeks following dismissal amounted to a figure of $27,600.00.

[76] The total amount of remuneration received in alternative employment, as identified, and that which may be reasonably likely to be earned between dismissal and the making of the Order for compensation, has been calculated so as to confine any compensation to the period of 9 ½ weeks after dismissal and before the applicant found alternative employment.

[77] Thirdly, in this instance there was no established misconduct of the applicant, and consequently I have decided to make no reduction to the amount of compensation to be provided to the applicant on account of any established misconduct.

[78] Fourthly, I confirm that any amount Ordered does not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt caused to the applicant by the manner of the dismissal.

[79] Fifthly, the amount Ordered does not exceed the compensation cap as prescribed by s. 392 (5) of the Act.

[80] Consequently, for the reasons outlined above, taking into account all of the circumstances of the case, and having cognisance so as not to apply the approach taken in the Decision in Sprigg in a rigid, determinative manner, as was cautioned in the Decision in Pericich, I have decided that the amount of compensation to be provided to the applicant should be a gross figure of $21,850.00.

[81] Accordingly, separate Orders [PR725200] providing for unfair dismissal remedy in these terms will be issued.

COMMISSIONER

Appearances:

Ms N Finch appeared unrepresented.

Mr J I Koprivnjak, Managing Director appeared for the employer.

Hearing details:

2020.
Sydney:
October, 12.

Printed by authority of the Commonwealth Government Printer

<PR725199>

 1   Transcript @ PN267.

 2   Transcript @ PN878.

 3 Sprigg v Paul’s Licensed Festival Supermarket, (Munro J, Duncan DP and Jones C), (1998) 88IR 21.

 4   Smith and Ors v Moore Paragon Australia Ltd, (Lawler VP, Kaufman SDP and Mansfield C), (2004) PR942856.

 5   John McCulloch v Calvary Health Care Adelaide, (Ross P, Hatcher VP and Gostencnik DP), [2015] FWCFB 873.

 6   Balaclava Pastoral Co Pty Ltd t/a Australian Hotel Cowra v Darren Nurcombe, (Hatcher VP, Gostencnik DP and Cribb C) [2017] FWCFB 429.

 7   Hanson Construction Materials Pty Ltd v Darren Pericich, (Ross P, Masson DP and Lee C), [2018] FWCFB 5960.