Nieves Calvo King v Scuderia Eastern Suburbs Pty Ltd
[2025] FWC 145
•15 JANUARY 2025
| [2025] FWC 145 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Nieves Calvo King
v
Scuderia Eastern Suburbs Pty Ltd
(U2024/7675)
| DEPUTY PRESIDENT WRIGHT | SYDNEY, 15 JANUARY 2025 |
Application for an unfair dismissal remedy – jurisdictional objection – whether applicant dismissed – applicant found to be dismissed – dismissal found to be unfair
Introduction and outcome
On 3 July 2024, Ms Nieves Calvo King lodged an application with the Fair Work Commission (the Commission) under s. 394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy, alleging that she had been unfairly dismissed from her employment with Scuderia Eastern Suburbs Pty Ltd, trading as Eastern Suburbs Automotive (Eastern Suburbs Automotive).
Ms Calvo King was employed by Eastern Suburbs Automotive from 6 June 2022 to 1 July 2024 on a part-time basis in reception. Ms Calvo King’s employment ended following an incident on the first day of operations at the new location in Woolloomooloo.
Ms Calvo King contended that her dismissal was sudden and unfair. She asserted that she was directed to leave and not return after raising concerns about Mr Soghomonian’s treatment of her during a dispute about her conduct during a break.
Eastern Suburbs Automotive denied that Ms Calvo King was dismissed, asserting that she voluntarily left the workplace following a minor disagreement. Eastern Suburbs Automotive objected to the application on jurisdictional grounds, claiming there was no formal termination of employment and that Ms Calvo King’s departure was voluntary.
I have found that Ms Calvo King was dismissed by Eastern Suburbs Automotive and that there was no valid reason for the dismissal. On the basis of this and other findings, I have determined that Ms Calvo King’s dismissal was harsh, unjust and unreasonable and that an order for compensation is appropriate.
The hearing
There being contested facts involved, the Commission is obliged by s.397 of the FW Act to conduct a conference or hold a hearing.
After taking into account the views of Ms Calvo King and Eastern Suburbs Automotive, and whether a hearing would be the most effective and efficient way to resolve the matter, I considered it appropriate to hold a hearing pursuant to s.399 of the FW Act.
At the hearing, Ms Calvo King represented herself. Eastern Suburbs Automotive was represented by Mr Atul Chadha, the in-house legal representative for Eastern Suburbs Automotive.
Ms Calvo King gave evidence on her own behalf.
The following witnesses gave evidence on behalf of Eastern Suburbs Automotive:
Mr Vic Soghomonian, Chief Executive Officer and Director
Mr Alex Stock, Service Manager
Ms Calvo King filed submissions in the Commission on 15 August 2024 and Eastern Suburbs Automotive filed submissions in the Commission on 30 August 2024. I have considered the submissions made by the parties and all of the evidence before me in my determination of this matter and the conclusions I have reached.
Background facts
Ms Calvo King commenced employment with Eastern Suburbs Automotive on 6 June 2022 working on a part-time basis, three days per week, primarily in the reception office.
Eastern Suburbs Automotive is a mechanical workshop providing services such as diagnostics, brake repairs, suspension work, and logbook servicing. The business operates in New South Wales, and employs a small team of six staff members. It recently relocated from Botany to Woolloomooloo, with operations beginning at the new premises on 1 July 2024. Mr Vic Soghomonian is the Chief Executive Officer and Director.
Mr Soghomonian owns several businesses with approximately 21 branches and is not involved in the day to day operations of Eastern Suburbs Automotive. Ms Calvo King is usually supervised by Mr Alex Stock, Service Manager. During the hearing Mr Soghomonian said that Mr Stock is responsible for the day to day management of Eastern Suburbs Automotive and if there are employment issues, he takes these up with Mr Stock to manage.
Evidence of Ms Calvo King
On Monday, 1 July 2024, the first day at the new Woolloomooloo location, Ms Calvo King arrived at 7:45am for an 8:00am start and set up the office and organised it like she did at the previous location.
At 12:30pm, Ms Calvo King went on her lunch break and was having a cigarette outside. Mr Soghomonian drove up in one of the workshop cars, beeped the horn, rolled down the window, imitated Ms Calvo King smoking, and yelled that she should not be smoking outside. At the hearing, Ms Calvo King explained that she felt frazzled by this interaction because for the last two years, she has smoked outside her workplace every morning and while on her lunchbreak and has never had anyone say anything to her about this. Ms Calvo King said she quickly put out the cigarette and went back inside. As Ms Calvo King walked back to the office, she said that Mr Soghomonian got out of his car, slammed the door angrily, and yelled,
I don't have to put up with this from my staff!
Ms Calvo King said she asked if there was somewhere else Mr Soghomonian would like her to smoke, and Mr Soghomonian said, ‘anywhere but the front’. Ms Calvo King she apologised and told Mr Soghomonian it would not happen again. Ms Calvo King said she walked back to her desk in the reception area, and was upset at the way Mr Soghomonian spoke to her.
Ms Calvo King said that Mr Soghomonian was angry when he came into the reception area and demanded she give back the VW Touareg, a company car she was driving. Ms Calvo King said she had sold her car and was driving the VW Touareg to see if she wanted to buy it off Mr Soghomonian. Ms Calvo King said that Mr Soghomonian was going to let her drive a few cars at Eastern Suburbs Automotive to see which one she wanted.
According to Ms Calvo King, the following conversation took place:
Mr Soghomonian: When do I get my Touareg back? You haven’t made up your mind
Ms Calvo King: I thought you wanted me to drive it to see if I wanted it? You said that you would have a few cars for me to look at.
Mr Soghomonian: Well, I’m not here to give staff cars to drive around. I don’t have time for that anymore, I’m too busy. I want the keys back.
Ms Calvo King: Okay, so I’ll look for my own car privately then.
Mr Soghomonian: Good, you do that.
Ms Calvo King: I’ll just make arrangements to be picked up after work then.
Ms Calvo King said that she was getting more anxious and upset, so she quickly called Eli, her husband, and asked if he could pick her up after work. Ms Calvo King produced a screenshot of the call log from her phone which showed that she called her husband at 12:44pm.
During the hearing Ms Calvo King said that Mr Soghomonian was stomping around and mumbling under his breath, and his behaviour was very intimidating.
Mr Soghomonian then walked away, and Ms Calvo King started crying at her desk. She said she started shaking and hyperventilating. Ms Calvo King was scared to be in the same area as Mr Soghomonian as it was only Mr Soghomonian and Ms Calvo King in the downstairs offices. All the mechanics and the workshop manager were upstairs.
Ms Calvo King said she didn’t know what to do and was scared, so she quickly went upstairs and looked for Mr Stock. Mr Stock asked Ms Calvo King what was wrong. Ms Calvo King said she could not talk as she was crying so much and could not breathe. Mr Stock told Ms Calvo King to sit in the workshop office. Mr Stock went with Ms Calvo King and asked again what happened. Ms Calvo King said she told Mr Stock everything. Mr Stock said he was sorry and told Ms Calvo King to breathe and calm down, then left the room.
Mr Stock came back to the office then Ms Calvo King saw Mr Soghomonian coming up to the workshop through the driveway entrance. She said she panicked and quickly turned her back to Mr Soghomonian as she did not want to be confronted. Mr Soghomonian walked in and asked,
Why are you crying? Is it because of what I said? This is just the way I am; I tell it how it is.
Ms Calvo King said that she said to Mr Soghomonian that he disrespected and intimidated her, and he didn’t need to talk to her that way, that he could have had a calm conversation and asked nicely.
Ms Calvo King said that the following conversation took place:
Mr Soghomonian: Well, this is who I am. If you don’t like it, you can leave.
Ms Calvo King: Are you really telling me to leave? You know, I have run my own business and have had staff, and I would never treat them this way.
Mr Soghomonian: Well, if you don’t like it, then leave. Actually, leave and don’t come back.
Ms Calvo King said during the hearing that Mr Stock was outside the workshop office when this conversation occurred. Ms Calvo King said she could not believe what just happened. She started walking out, and one of the mechanics asked what happened. She told him, ‘He told me to leave and don’t come back.’ Ms Calvo King was still crying and went to her desk to get her belongings. Ms Calvo King said she called her husband to see if he could pick her up. Ms Calvo King said that Mr Stock approached her and the following conversation took place:
Mr Stock: I’m so sorry this has happened.
Ms Calvo King: It’s not your fault, and I can’t believe Vic did this to me. I have been here two years and have never once disrespected anyone or did anything wrong. I work hard.
Mr Stock: I know.
Ms Calvo King said that Mr Stock said he would talk to her later and that they would try to sort the situation out.
Ms Calvo King said she went to the Touareg and got her things out of the car. She then went back to the office to collect the rest of her belongings, and Mr Soghomonian was just casually talking to a customer like nothing had happened. Ms Calvo King walked out, and did not wait out the front in case Mr Soghomonian said something about Ms Calvo King being near the building. Ms Calvo King called her husband and asked him to meet her at the end of the street. Ms Calvo King produced a screenshot of the call log from her phone which showed that she called her husband at 2:10pm.
The following text exchanges took place between Ms Calvo King and Mr Stock:
Mr Stock [7:43pm on 1 July]: Hi Nieves. I havnt had a chance to speak to Vic properly and just got home so apologies for not sending this sooner. Wanted to check if you’re ok?
Ms Calvo King [no time/date stamp]: Thank you so much for messaging me. I truly appreciate it. I’m so sad with what happened today, I have been working with you for 2 years and have enjoyed every part of it. You’re an amazing person Alex and it makes me so sad that I won’t be working with you. You have always been so supportive and a great boss. Which made me want to better support you. Never have I been treated the way that Vic did today. And when he did what he did I was in absolute shock. This is no reflection on you at all…please know that. But he told me to leave and not come back. What did I do to be treated like that. I know you can’t say anything because you have your family to look after. But I’m lost for words at his cruelty, disrespect and bullying tactics. I have never done anything in the last 2 years to warrant what happened today. I’m in disbelief. If you heard the way he was speaking to me downstairs when no one else was around you would not have believed it. This is why I came upstairs because I was worried about how he would keep reacting if he saw me cry.
Mr Stock [6:39pm on 2 July]: Hi Nieves. I’m really sorry that it all happened like that. If you need anything from me please let me know. If course I will give you a glowing reference if you apply for something else. I assume you done [sic] want me to pursue convincing Vic to have you back, I’m happy to fight in your corner if you do.
Ms Calvo King [9:31am on 3 July]: Hi Alex, thank you for your support. It shouldn’t be me convincing him to take me back. he should be coming to me and apologising to me for how he treated me & what he did to me. I’ve received no messages or request to resolve this. I am not the one in the wrong. If he makes no attempt to resolve this, he’s going to leave me with no choice but to go to the fair trading tribunal and put a case against him for unfair dismissal, bullying intimidation and harassment. I’ve seen him do this to other people and it's unethical and technically he's breaking workplace laws. The other thing is I don't know if I'll be comfortable working there and having him around after what he did. What saddens me is that I love working with you and the other guys in the two years that I've been there I've never had an issue and you know what I'm like Alex. I’m easy-going down to and don't take things seriously. I know how to take jokes and I don't take offence too much.
Mr Stock [no time/date stamp]: Yes I understand. It shocked me too, I honestly feel terrible about what happened. I have a meeting with Vic today and will see what he says.
Mr Stock [9:31am on 3 July]: Hi Nieves, Vic said he will reach out to you to schedule a call.
On 3 July 2024 at 5:00pm, Ms Calvo King received a text message from Mr Soghomonian which stated:
Hi, Call me if you like to talk over what occurred on Monday. Regards Vic
Ms Calvo King said that as Mr Soghomonian had already threatened and bullied her, she did not want to put herself in the position of having a phone call where there were no witnesses to the conversation. Ms Calvo King said that she was not in a mental state to talk to Mr Soghomonian as she was fearful of him. Ms Calvo King said that this is the only correspondence she received. There were no missed calls on her phone or any other attempts by Eastern Suburbs Automotive to contact Ms Calvo King such as sending an email to request a meeting. Ms Calvo King said another reason she did not reply was because of the wording of Mr Soghomonian’s text message. If Mr Soghomonian was regretful about what he had done, Ms Calvo King expected him to call her, apologise, and try to fix the situation. Instead, Ms Calvo King felt that Mr Soghomonian put the onus on her to go back to him to fix it which made her feel like she had made the mistake.
On 13 July 2024, Ms Calvo King sent an email in the following terms to Mr Stock:
Hi Alex,
I hope you had a good weekend. I miss working with you all. I hope it hasn’t been too hard dealing with the admin on your own. How are the boys and your little girl.
I just wanted to let you know that I have received my pay till the 7th July, but I’m still owed a notice period for dismissal under the National Employment Standards. Another 2 weeks are still owed. Could you please organise this with Maddie. I have the information in the link below.
Thank you Alex
On 15 July 2024, Ms Calvo King sent an email in the following terms to Mr Stock:
Also, I forgot to ask for the Separation Certificate as well.
Thank you
On 16 July 2024, Mr Stock sent the following email to Ms Calvo King:
Hi Nieves,
I am ok thanks – hope you are doing ok too.
Vic said he will deal with this directly. We will be in touch.
Best regards,
Alex Stock
Ms Calvo King filed a workers compensation claim in respect of a psychological injury sustained at work on 1 July 2024. At the time of the hearing Ms Calvo King was not working but was in receipt of weekly workers compensation payments.
Evidence of Mr Soghomonian
Mr Soghomonian’s version of the events of 1 July 2024 was that he arrived at the new premises at 10:55am and observed Ms Calvo King smoking outside the building front access area. Ms Calvo King was sitting on a council seat on the pavement, scrolling through her phone while wearing the company shirt. Mr Soghomonian watched Ms Calvo King for approximately five minutes from his car and considered her conduct unprofessional, especially since the business was new to the area.
Mr Soghomonian said that he drove his car into the reception area/customer drop off zone and rolled down his window and asked Ms Calvo King what she was doing out there. CCTV footage produced by Eastern Suburbs Automotive which appears to show this conversation was timestamped 12:27.
Mr Soghomonian said he told Ms Calvo King that it was not a good look to be smoking outside in front of the building access in her uniform as it did not project a professional image especially on the very first day of the new office. Mr Soghomonian said that in response, Ms Calvo King began attacking him verbally and questioned why he would not pull her aside and speak to her privately. Mr Soghomonian said that as Ms Calvo King’s employer, he believed that he had the right to request that she smoke elsewhere. He said he asked Ms Calvo King to put the cigarette out and come back inside and that she carried on about it.
Mr Soghomonian said that he parked the car inside and Ms Calvo King said,
Well I am leaving then.
Mr Soghomonian said that he was unsure at the time what Ms Calvo King meant, whether she meant that she was going home for the day or to cool off. Mr Soghomonian said that he did not want Ms Calvo King to leave for good, however if she was not coming back, Mr Soghomonian requested that she hand back the car that she had been borrowing.
Ms Calvo King questioned what Mr Soghomonian meant. Mr Soghomonian said that he clarified that he cannot hold her back if she chose to leave but if she is leaving, she cannot leave in the possession of company property.
Mr Soghomonian said that Ms Calvo King then went upstairs to speak with Mr Stock and other staff and that when she returned, she was in tears and proceeded to gather her personal belongings from the car. Mr Soghomonian said that he offered to talk and discuss the situation, but Ms Calvo King declined and left the premises.
Mr Soghomonian said that he expected that Ms Calvo King would call at some point and explain what was happening, her action plans and return to work or say she would come back but that she has not done so. Mr Soghomonian said that he has called and sent Ms Calvo King a test message, but she has not responded.
Mr Soghomonian said that he was uncertain why the incident escalated as it did. It was a minor incident about smoking which has grown into something bigger. Mr Soghomonian said that he believed that Ms Calvo King misinterpreted the conversation and took it out of context.
During the hearing, Mr Soghomonian gave the following evidence:
At the end of the night I reached out to her with a text message. We all make mistakes. It could have been that she was having a bad day. I was having a bad day. We get on with it. Because she was employed to help Alex in administration and in talking to customers. It had nothing to do with her employment, whether she was doing a good job or a bad job. I’ve been very fair, more than fair by saying and wanting to know what she was doing. She could have turned around and said that she was texting a customer, I need to be here, perhaps I’m waiting for someone. Certainly not in your work. I expect if you’re working for me or if I was working for you, you would be there, not outside work. It’s inside work, in your office area.[1]
During the hearing, Mr Soghomonian also said that he has 250 staff employed across his businesses and that he had spent no more than two days working with Ms Calvo King while she was employed by Eastern Suburbs Automotive.
In his witness statement, Mr Soghomonian raised a number of matters about Ms Calvo King which appear to be unrelated to the events of 1 July 204. These were also referred to in the F3 Response and are as follows:
Ms Calvo King was never in particularly good health. She often seemed tense, snappy and aggressive. The longest interaction Mr Soghomonian had with Miss Calvo King was approximately two hours one day as Mr Stock was away. During this time Ms Calvo King discussed her previous business going into receivership, her financial difficulties and the challenges she was facing. Ms Calvo King also seemed to take advantage of company assets.
Ms Calvo King had sold her personal car and was using one of the company’s loan vehicles without proper authorisation. This was not approved as the vehicles are intended for customer use. However, Mr Soghomonian allowed Ms Calvo King to borrow one of his personal cars, a blue Volkswagen Touareg, to commute to and from work.
Shortly after Mr Soghomonian loaned Ms Calvo King the car, she had an accident in it in which she was at fault. The car was repaired through insurance, but Mr Soghomonian incurred a $1500 excess fee.
Ms Calvo King’s performance was average. She often forgot tasks and had to be reminded multiple times before completing them.
Other staff have expressed that Ms Calvo King has an aggressive nature.
In response to these matters, Ms Calvo King denied that there were any issues with her performance, conduct or health and said that she had permission from Mr Stock to use the loan cars.
Evidence of Mr Stock
Mr Stock’s evidence was that he did not observe any altercation between Mr Soghomonian and Ms Calvo King on 1 July 2024 as he was upstairs in the workshop. Mr Stock said that Ms Calvo King came up to the workshop in tears and advised Mr Stock that Mr Soghomonian had reprimanded her for smoking. Mr Stock said that he calmed Ms Calvo King down, went downstairs, then Ms Calvo King came downstairs and he saw her speak to Mr Soghomonian downstairs but Mr Stock was on the other side of the showroom. Ms Calvo King collected her things, then sat out the front of the building. Mr Stock said that his conversation with Ms Calco King was not long as she was quite upset.
Mr Stock said that he did not remember Mr Soghomonian being upstairs and that he did not recall Mr Soghomonian saying anything to Ms Calvo King upstairs. In response to a question by Ms Calvo King as to whether he believed she had been dismissed, Mr Stock said:
I didn’t know as I was given two stories. You told me that Vic told you to leave and not return but when I spoke to him, his side was that he’d been angry but that he had not kind of fired you in any way. He’d reached out by text and asked you if you wanted to come in and have a chat so he could discuss it with you.[2]
During the hearing, Mr Stock initially said that Ms Calvo King told Mr Stock in person that Mr Soghomonian told her to leave and not come back when they were upstairs. He then said he could not remember if she said this in person or if whether this was conveyed by text only. He did, however, remember Ms Calvo King telling him that Mr Soghomonian had asked for the keys to the car.
Mr Stock said that he worked with Ms Calvo King for two years. During the hearing, I asked Mr Stock what Ms Calvo King was like to work with. Mr Stock said:
Very pleasant person, a kind person, I never had any issues on a personal level with her at all. She did the job pretty well. There were no issues on a professional level either. She always did what was asked of her. There were no big problems between us at all.[3]
In response to questions asked by Ms Calvo King, Mr Stock indicated there was no disciplinary action taken against Ms Calvo King or complaints made about her during her employment and agreed that Ms Calvo King received a payrise after her first year of work because she helped out in the workshop and Mr Stock was happy with her work.[4]
When can the Commission order a remedy for unfair dismissal?
Section 390 of the FW Act provides that the Commission may order a remedy if:
(a) the Commission is satisfied that the person was protected from unfair dismissal at the time of being dismissed; and
(b) the person has been unfairly dismissed.
Both limbs must be satisfied. I am therefore required to consider whether Ms Calvo King was protected from unfair dismissal at the time of being dismissed and, if I am satisfied that Ms Calvo King was so protected, whether Ms Calvo King has been unfairly dismissed.
When has a person been unfairly dismissed?
Section 385 of the FW Act provides that a person has been unfairly dismissed if the Commission 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.
Initial matters
Was Ms Calco King dismissed?
A threshold issue to determine is whether Ms Calvo King has been dismissed from her employment.
Section 386 of the FW Act provides:
386 Meaning of dismissed
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
(2) However, a person has not been dismissed if:
(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or
(b) the person was an employee:
(i) to whom a training arrangement applied; and
(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;
and the employment has terminated at the end of the training arrangement; or
(c) the person was demoted in employment but:
(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and
(ii) he or she remains employed with the employer that effected the demotion.
(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.
Ms Calvo King contends that she was dismissed by Eastern Suburbs Automotive when Mr Soghomonian said to her, ‘Well, if you don’t like it, then leave. Actually, leave and don’t come back.’ Mr Soghomonian denies making this statement to Ms Calvo King and contends that she left the workplace voluntarily and did not return.
The events leading up to the alleged dismissal are relevant to my consideration as to whether Ms Calvo King was dismissed. Although both Ms Calvo King and Mr Soghomonian filed written material about the events of 1 July 2024, I asked both of them to recount these events by way of oral testimony during the hearing. The oral testimony provided by both Ms Calvo King and Mr Soghomonian largely concurred with their written evidence.
There was no dispute between Ms Calvo King and Mr Soghomonian about the following matters:
a conversation took place between Ms Calvo King and Mr Soghomonian in relation to Ms Calvo King smoking outside (the smoking incident).
Mr Soghomonian asked Ms Calvo King to return the VW Touareg.
Ms Calvo King went upstairs after Mr Soghomonian requested the car.
Ms Calvo King came downstairs and then left the workplace after gathering her belongings.
There is a dispute about the context of Mr Soghomonian asking Ms Calvo King to return the VW Touareg although they appear to agree about the timing of this conversation. Mr Soghomonian’s version of events is that immediately after the smoking incident, Ms Calvo King said she was leaving. Mr Soghomonian said that he did not want Ms Calvo King to leave for good, however if she was not coming back, Mr Soghomonian requested that she hand back the car that she had been borrowing. Ms Calvo King’s evidence is that Mr Soghomonian requested she return the car while he was angry following the smoking incident.
Mr Stoke’s evidence was that when Ms Calvo King went upstairs, she was upset and told him that Mr Soghomonian had reprimanded her for smoking outside and that she was required to return the car. Although this conversation occurred immediately after Ms Calvo King allegedly said to Mr Soghomonian ‘I’m leaving’, there is no suggestion on Mr Stoke’s evidence that Ms Calvo King conveyed this to Mr Stoke. In my view, it would be unusual for a person who had decided to leave their employment voluntarily to be upset and complaining about their employer asking for a car to be returned, if it was the employer’s property and therefore a reasonable request. This is a matter which weighs in favour of me accepting Ms Calvo King’s version of events about the car.
Although Ms Calvo King claims that Mr Stoke was outside the workshop office when Mr Soghomonian told her to leave and not come back, Mr Stoke has no memory of Mr Soghomonian being upstairs. Mr Stoke said that he saw Ms Calvo King and Mr Soghomonian talking downstairs (although he was too far away to hear the conversation) so it is possible that either Ms Calvo King or Mr Stoke are mistaken about the location of the conversation. The fact that both Ms Calvo King and Mr Stoke have provided evidence that a conversation took place between Ms Calvo King and Mr Soghomonian after Ms Calvo King talked to Mr Stoke upstairs (albeit in different locations) establishes that there was the opportunity for the termination conversation alleged by Ms Calvo King to occur.
However, there are no witnesses to the alleged termination conversation. Similarly, there were no witnesses to the earlier conversation where Mr Soghomonian alleged that Ms Calvo King said she was leaving.
In considering which version of events I should accept, I have had regard to the oral testimony of Mr Soghomonian and Ms Calvo King and all of the evidence before me. I have taken into account that there is an almost contemporaneous record of Ms Calvo King’s version of events in the text message that she sent to Mr Stoke during the evening of 1 July 2024. There is a detailed record in the Form F2 which Ms Calvo King submitted to the Commission two days later. Eastern Suburbs Automotive did not provide a written account of Mr Soghomonian’s version of events until the F3 was filed on 14 August 2024.
I have also taken into account the fact that Eastern Suburbs Automotive took no steps to confirm the alleged resignation in writing. Although there is no legal requirement for an employer to provide such a confirmation, it is reasonably common practice for an organisation with a dedicated human resource department and in house counsel, especially when an employment relationship ceases unexpectedly. Further, I would expect Eastern Suburbs Automotive to tell Ms Calvo King that it regarded her as having resigned given that it was on notice soon after Ms Calvo King ceased employment that Ms Calvo King was alleging that she was dismissed and that she intended to commence unfair dismissal proceedings.
Ms Calvo King presented as a genuine, credible and compelling witness. In assessing her credibility, I have taken into account that Mr Stoke had a high regard for her and that there was no history of Ms Calvo King engaging in dishonesty or wrongdoing in the workplace. I have no reason to believe that Ms Calvo King’s recollection about what Mr Soghomonian said during their conversations on 1 July 2024 is incorrect or that Ms Calvo was dishonest or exaggerated while giving evidence. On the other hand, there were matters which Mr Soghomonian gave inaccurate evidence about. For example, Mr Soghomonian said the smoking incident occurred at 10:55am whereas the CCTV footage supported Ms Calvo King’s version that it occurred at around 12:30pm. Mr Soghomonian said during the hearing that he sent Ms Calvo King a text message the night of 1 July 2024 whereas the evidence showed it was sent two days later. Mr Soghomonian gave evidence about matters unrelated to the events of 1 July 2024 which were contradicted by Mr Stoke. These included statements about Ms Calvo King’s conduct towards other staff and her performance although Mr Soghomonian said he had only spent two days in the workplace with Ms Calvo King. Mr Stoke, on the other hand, who was Ms Calvo King’s direct manager and worked with her for two years said that she was a very pleasant and kind person and did her job well.
In the circumstances, I prefer Ms Calvo King’s evidence over Mr Soghomonian’s evidence with respect to the events of 1 July 2024 and accept that Mr Soghomonian said to Ms Calvo King, ‘Well, if you don’t like it, then leave. Actually, leave and don’t come back.’ I find that a reasonable person in Ms Calvo King’s position would have, on the basis of Mr Soghomonian saying these words and the surrounding circumstances, regarded her employment as having been terminated by Mr Soghomonian on behalf of Eastern Suburbs Automotive.
It is possible that Mr Soghomonian told Ms Calvo King not to come back in anger and did not intend to terminate her employment. If this was the case, Mr Soghomonian should have taken steps to communicate with Ms Calvo King that she was still employed and expected to attend work. In my view, it was not sufficient for Mr Soghomonian to send Ms Calvo King a text message on 3 July 2024 which put the onus on her to contact him and to take no further steps beyond this. I accept Ms Calvo King’s evidence that Mr Soghomonian made no attempt apart from sending this text message to contact her or discuss the matter with her. I do not accept Mr Soghomonian’s evidence that he attempted to call Ms Calvo King to discuss the matter or that he attempted to discuss the matter with Ms Calvo King before she left the workplace on 1 July 2024.
Other matters
Under s.396 of the FW Act, the Commission is obliged to decide the following matters 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.
I have decided these matters below.
Section 394(2) requires an application to be made within 21 days after the dismissal took effect.
There is no dispute between the parties that the employment ceased on 1 July 2024. Two days later, on 3 July 2024, Ms Calvo King filed an Unfair Dismissal application with the Commission. I am therefore satisfied that the application was made within the period required in s.394(2).
Section 382 of the FW Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:
(a) the person is an employee who has completed a period of employment with his or
(b) one or more of the following apply:
(i)a modern award covers the person;
(ii)an enterprise agreement applies to the person in relation to the employment;
(iii)the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.
It was not in dispute, and I find, that at the time of dismissal, Ms Calvo King completed at least the minimum period of employment with Eastern Suburbs Automotive, and that her annual remuneration was less than the high income threshold.
I am therefore satisfied that, at the time of dismissal, Ms Calvo King was a person protected from unfair dismissal.
It was not in dispute, and I find, that Ms Calvo King’s dismissal was not a case of genuine redundancy.
The Small Business Fair Dismissal Code applies to Ms Calvo King. Eastern Suburbs Automotive has not submitted that the dismissal was consistent with the Small Business Fair Dismissal Code. There is no evidence that Eastern Suburbs Automotive complied with the Small Business Fair Dismissal Code in relation to Ms Calvo King. In the circumstances, I find that the dismissal was not consistent with the Small Business Fair Dismissal Code.
Having considered each of the initial matters, I am required to consider the merits of the application.
Was the dismissal harsh, unjust or unreasonable?
Section 387 of the FW Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission 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.
I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me.[5]
I set out my consideration of each of these criteria below.
Was there a valid reason for the dismissal related to Ms Calvo King’s capacity or conduct?
In order to be a valid reason, the reason for the dismissal should be ‘sound, defensible or well founded’[6] and should not be ‘capricious, fanciful, spiteful or prejudiced.’[7] However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.[8]
Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination.[9] The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.[10]
The dismissal followed an altercation between Ms Calvo King and Mr Soghomonian about Ms Calvo King smoking outside. Ms Calvo King had smoked outside during the two years that she had been employed by Eastern Suburbs Automotive and no issues were ever raised about this by her employer.
Although Mr Soghomonian’s witness statement indicates that he was concerned that Ms Calvo King’s conduct was presenting an unprofessional image, it is clear from the evidence that he gave during the hearing that he believed that Ms Calvo King was smoking when she should have been doing work. Ms Calvo King was not required to be at work at this time because she was taking her lunchbreak. Mr Soghomonian did not understand that Ms Calvo King was taking her lunch break at the time and continued this misunderstanding right up until the hearing when he gave evidence that the time of the incident was 10:55am rather than 12:27pm as indicated in the CCTV footage. During the smoking incident, Mr Soghomonian was angry towards Ms Calvo King and Mr Soghomonian’s behaviour towards Ms Calvo King caused her to become upset. During a subsequent conversation between Ms Calvo King and Mr Soghomonian, Ms Calvo King said to Mr Soghomonian that he disrespected and intimidated her. Mr Soghomonian then told Ms Calvo King to leave and not come back.
I accept Ms Calvo King’s evidence over Mr Soghomonian’s for the reasons already stated in this decision and find that the reason for the dismissal is because Ms Calvo King said to Mr Soghomonian that he disrespected and intimidated her. In my view, it was reasonable for Ms Calvo King to say these words to Mr Soghomonian given the preceding events and that Ms Calvo King’s actions in this regard did not constitute any form of misconduct. I do not accept, as alleged by Mr Soghomonian, that Ms Calvo King attacked him verbally at any time on 1 July 2024. I therefore find that there was not a valid reason for the dismissal related to Ms Calvo King’s capacity or conduct.
Was Ms Calvo King notified of the valid reason?
Proper consideration of s.387(b) requires a finding to be made as to whether Ms Calvo King ‘was notified of that reason’. Contextually, the reference to ‘that reason’ is the valid reason found to exist under s.387(a).[11]
As I am not satisfied that there was a valid reason related to dismissal, this factor is not relevant to the present circumstances.[12]
Was Ms Calvo King given an opportunity to respond to any reason related to her capacity or conduct?
As I have not found that there was a valid reason related to dismissal, this factor is not relevant to the present circumstances.[13]
Did Eastern Suburbs Automotive unreasonably refuse to allow Ms Calvo King to have a support person present to assist at discussions relating to the dismissal?
There were no discussions relating to the dismissal before it occurred so there was no opportunity for Ms Calvo King to have a support person in relation to the dismissal. This is a matter which weighs in favour of a finding that the dismissal was unfair.
Was Ms Calvo King warned about unsatisfactory performance before the dismissal?
As the dismissal did not relate to unsatisfactory performance, this factor is not relevant to the present circumstances.
To what degree would the size of Eastern Suburbs Automotive’s enterprise be likely to impact on the procedures followed in effecting the dismissal?
I note that Eastern Suburbs Automotive is a small enterprise with only six employees, however it is one of a number of businesses owned by with approximately 21 branches so I would expect it to have some knowledge of workplace relations matters.
To what degree would the absence of dedicated human resource management specialists or expertise in Eastern Suburbs Automotive’s enterprise be likely to impact on the procedures followed in effecting the dismissal?
Eastern Suburbs Automotive has submitted that it has a dedicated human resources department so I would expect it to have some knowledge of workplace relations matters.
What other matters are relevant?
Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant.
It has long been established that the effects of dismissal on the personal or economic situation of the dismissed employee may be taken into consideration under s.387(h) of the FW Act.[14]
An employee’s long and satisfactory work performance or history may be taken into consideration under s.387(h) of the FW Act and, depending on all the circumstances, may weigh in favour of a conclusion that the dismissal of the employee was harsh, unjust or unreasonable.[15]
The other matters which I have taken into account and which weigh in favour of a finding that the dismissal was unfair are Ms Calvo King’s good work history and performance, the distress caused by the dismissal and the surrounding circumstances, the financial impact of the dismissal given that Ms Calvo King is not working and in receipt of workers compensation payments and that Ms Calvo King was dismissed after reasonably raising concerns about Mr Soghomonian’s unacceptable conduct towards her.
Is the Commission satisfied that the dismissal of Ms Calvo King was harsh, unjust or unreasonable?
I have made findings in relation to each matter specified in s.387 as relevant.
I must consider and give due weight to each of these matters as a fundamental element in determining whether the termination was harsh, unjust or unreasonable.[16]
Having considered each of the matters specified in s.387 of the FW Act, I am satisfied that the dismissal of Ms Calvo King was harsh, unjust and unreasonable because:
there was no valid reason related to Ms Calvo King’s conduct,
Ms Calvo King was highly regarded by her manager and there were no previous conduct or performance concerns,
Ms Calvo King was dismissed after reasonably raising concerns about Mr Soghomonian’s conduct towards her,
of the harsh consequences of the dismissal due to the financial impact of the dismissal on Ms Calvo King and the distress experienced by her.
I am therefore satisfied that Ms Calvo King was unfairly dismissed within the meaning of s.385 of the FW Act.
Remedy
Being satisfied that Ms Calvo King made an application for an order granting a remedy under s.394, was a person protected from unfair dismissal, and was unfairly dismissed within the meaning of s.385 of the FW Act, I may, subject to the FW Act, order Ms Calvo King’s reinstatement, or the payment of compensation to Ms Calvo King.
Under s.390(3) of the FW Act, I must not order the payment of compensation to Ms Calvo King unless:
(a) I am satisfied that reinstatement of Ms Calvo King is inappropriate; and
(b) I consider an order for payment of compensation is appropriate in all the circumstances of the case.
Is reinstatement of Ms Calvo King inappropriate?
Ms Calvo King has not sought reinstatement and does not wish to return to work for Eastern Suburbs Automotive. Eastern Suburbs Automotive has indicated that it would be open to considering reinstatement. However, I find that the position of Eastern Suburbs Automotive in this regard is inconsistent with some of the unnecessary and disparaging evidence which Mr Soghomonian gave about Ms Calvo King’s performance and conduct which was inconsistent with Mr Stoke’s favourable evidence about Ms Calvo King. The negative attitude of Mr Soghomonian towards Ms Calvo King combined with Ms Calvo King’s reluctance to return to the workplace leads me to conclude that reinstatement is inappropriate.
Is an order for payment of compensation appropriate in all the circumstances of the case?
Having found that reinstatement is inappropriate, it does not automatically follow that a payment for compensation is appropriate. As noted by the Full Bench, ‘[t]he question whether to order a remedy in a case where a dismissal has been found to be unfair remains a discretionary one…’[17]
Where an applicant has suffered financial loss as a result of the dismissal, this may be a relevant consideration in the exercise of this discretion.[18]
The evidence established that Ms Calvo King has suffered financial loss as a result of the dismissal. Ms Calvo King received no notice payment and no income for three weeks following the dismissal. She then started receiving weekly workers compensation payments but at a reduced rate compared to the pay she received while working for Eastern Suburbs Automotive. If the workers compensation payments cease or decrease before Ms Calvo King is able to obtain alternative employment, the financial loss that Ms Calvo King has suffered as a result of the dismissal will increase. Having regard to all of these circumstances, I consider that an order for payment of compensation is appropriate.
Compensation – what must be taken into account in determining an amount?
Section 392(2) of the FW Act requires all of the circumstances of the case to be taken into account when determining an amount to be paid as compensation to Ms Calvo King in lieu of reinstatement including:
(a) the effect of the order on the viability of Eastern Suburbs Automotive’s enterprise;
(b) the length of Ms Calvo King’s service;
(c) the remuneration that Ms Calvo King would have received, or would have been likely to receive, if s had not been dismissed;
(d) the efforts of Ms Calvo King (if any) to mitigate the loss suffered by Ms Calvo King because of the dismissal;
(e) the amount of any remuneration earned by Ms Calvo King from employment or other work during the period between the dismissal and the making of the order for compensation;
(f) the amount of any income reasonably likely to be so earned by Ms Calvo King during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that the Commission considers relevant.
At the time of the hearing, Ms Calvo King was not fit to resume all of her pre-injury duties and was in receipt of workers compensation payments. These payments are less than the weekly pay that Ms Calvo King received while working at Eastern Suburbs Automotive. In assessing compensation, I am required to take into account numerous matters including workers' compensation payments received by Ms Calvo King and attempts made by Ms Calvo King to seek employment. Although I issued directions at the conclusion of the hearing requiring Ms Calvo King to provide information in relation to the quantum of workers' compensation payments received by her, the information that has been provided appears to be incomplete.
In the circumstances, I will be issuing directions requiring the parties to file further evidence and submissions in relation to the Commission’s determination of an amount to be paid as compensation to Ms Calvo King.
Conclusion
I have found that Ms Calvo King was dismissed after reasonably raising concerns about Mr Soghomonian’s conduct towards her and that this was not a valid reason for the dismissal. I have accepted that the dismissal has had adverse consequences for Ms Calvo King including distress and financial hardship. Based upon these findings, I have concluded that the dismissal was harsh, unjust and unreasonable.
I consider that an order for payment of compensation is appropriate and will determine that amount after receiving further evidence and submissions from the parties.
DEPUTY PRESIDENT
Appearances:
Ms N. Calvo King, the Applicant
Mr A. Chadha, Scuderia Eastern Suburbs Pty Ltd In House Counsel, for the Respondent
Hearing details:
2024
10 October
In person, Sydney
Final written submissions:
Applicant: 23 October 2024
[1] Recording, 10:49:43
[2] Recording, 11:24:38
[3] Recording, 11:20:45
[4] Recording, 11:27:10
[5] Sayer v Melsteel Pty Ltd[2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].
[6] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
[7] Ibid.
[8] Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681, 685.
[9] Edwards v Justice Giudice [1999] FCA 1836, [7].
[10] King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24].
[11] Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429, [19]; Reseigh v Stegbar Pty Ltd [2020] FWCFB 533, [55].
[12] Chubb Security Australia Pty Ltd v Thomas Print S2679 (AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 2000), [41]; Read v Cordon Square Child Care Centre [2013] FWCFB 762, [46]-[49].
[13] Chubb Security Australia Pty Ltd v Thomas Print S2679 (AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 2000), [41]; Read v Cordon Square Child Care Centre [2013] FWCFB 762, [46]-[49].
[14] Ricegrowers Co-operative v Schliebs PR908351 (AIRCFB, Duncan SDP, Cartwright SDP, Larkin C, 31 August 2001), [26].
[15] Telstra Corporation v Streeter [2008] AIRCFB 15, [27].
[16] ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]–[7].
[17] Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter[2014] FWCFB 7198, [9].
[18] Vennix v Mayfield Childcare Ltd [2020] FWCFB 550, [20]; Jeffrey v IBM Australia Ltd [2015] FWCFB 4171, [5]-[7].
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