Penelope Bergen v Alice Springs Town Council

[2015] FWC 2508

[2015] FWC 2508

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Penelope Bergen
v
Alice Springs Town Council
(U2014/16228)

VICE PRESIDENT LAWLER SYDNEY, 10 APRIL 2015

Application for relief from unfair dismissal remedy - minimum employment period - remedy

[1] On 7 April 2015 I delivered an ex tempore decision dismissing the Respondent’s jurisdictional objection that the Applicant had not completed the minimum employment period and thus was not protected from unfair dismissal.

[2] Neither party sought to lead further evidence on the substantive application for an unfair dismissal remedy.

[3] I outlined a provisional view on the outcome of the substantive application and invited submissions on whether the dismissal was harsh, unjust or unreasonable and the appropriate amount of compensation assuming it was so found.

[4] Ms Bergen was provided with a further opportunity to make a written submission in relation to the issue of remedy. Submissions on the issue have now been received from the parties.

[5] The decision of the Full Bench in Sprigg v Paul’s Festival Supermarket Pty Ltd requires an approach to the assessment of compensation that involves a consideration of how long the employee would have been likely to remain in employment and, assuming reasonable attempts at mitigation, ascertainment of the amount the employee would have earned in that event (with an allowance for contingencies) less the amount the employee had earned, and was likely to earn over the same period. The decision of the Full Bench in Smith v Moore Paragon Australia indicates that the words of the statute remain paramount and the amount of compensation must be “appropriate”. Accordingly, a result yielded by a Sprigg analysis should not be adopted mechanically. The amount must always meet the description in the statute of being “appropriate”.

[6] Mr Catchlove for the Counsel did not advance submissions against my provisional view that the dismissal was harsh unjust or unreasonable. He did submit that a Sprigg analysis would result in a finding that the Applicant’s employment would not have continued beyond the end of January 2015.

[7] It is clear from the annotation on the “Request to Fill” document that the CEO’s motivation in declining to approve the request was a policy decision to reduce reliance on casuals and to have the work of the Council performed by permanent employees. I accept that the three day a week permanent part-time position advertised in November 2014 and again in January 2015 was a position intended to facilitate a reduction in reliance on casual employees. I accept that the CEO had a managerial prerogative to make such a decision and implement it. Prima facie, any loss of work by a casual employee in those circumstances would not involve a dismissal that was harsh, unjust or unreasonable.

[8] However, on the facts in this case it is far from clear that this was the most likely outcome. There is no suggestion that the CEO had been informed of the Applicant’s circumstances or the representations that had been made to her (and relied upon by her). If the CEO had been apprised of the representations made to the Applicant by Mr Laan and her direct supervisor (both acting in good faith and in ignorance of the CEO’s change of policy approach in relation to the employment of casuals), it is not clear that the CEO would not have elected to continue the Applicant’s employment for the January to July 2015 period, particularly when there had been no satisfactory applications received in response to the 3 day a week PPT position that had been advertised in November 2014.

[9] I note that the amount of money involved in renewing the applicant’s contract, as opposed to having the work performed by a permanent employee is very modest. In any fair minded consideration of the circumstances, this would not have weighted heavily against the subjective factors in favour of continuing the Applicant’s employment for a further period in light of the events that had happened. The 3 day a week PPT position had not been successfully filed as a result of the November 2014 advertisement. The CEO was not obliged to proceed with a second advertisement.

[10] Proceeding on the assumption that the CEO would act, not only within the limits of his authority, but also with a sense of decency and a fair go, it is equally arguable that, had the CEO been informed of the circumstances on which the Applicant relies, he would not have chosen the “Request to Fill” in relation to the Applicant to implement his change of policy in relation to the use of casuals, and, instead, postponed the implementation of policy change until after appropriate notification to managers so that they did not unwittingly engender the sort of legitimate expectations that were engendered in the Applicant in this case.

[11] There was no evidence from the CEO as to what he would have done if he had been apprised of the full circumstances at material times.

[12] It is truly a matter of speculation for me to determine what would have occurred if the Applicant had not been unfairly dismissed in the circumstances revealed by the evidence. There are strong factors pointing in the direction of the CEO not permitting the casual employment of the Applicant beyond the filling of the readvertised 3 day a week PPT position. There are equally strong factors pointing in the direction of a decision to renew the Applicant’s contract for the promised period of six months from January 2015 with the CEO electing to proceed with the engagement of the Applicant.

[13] I do not consider that the representation of long term employment can be given effect for the purposes of the calculation. The Applicant knew that her engagement was casual and subject to approval processes within the Council. Mr Laan did not occupy a position where he acted with the apparent authority of the Council in discussions of the sort in which that representation was made. The representations do not provide a proper basis for a conclusion that the Applicant’s employment would likely have continued for 4 years.

[14] The applicant was a casual employee and, certainly, on 14 December 2014, was a casual employee. A termination following that single day of work did not give rise to an obligation to make a payment in lieu of notice. The casual loading includes a component that compensates casual employees for not receiving notice on termination. The same consideration applies in relation to redundancy.

[15] I am not persuaded that the Agreement extends redundancy entitlements to casuals and the Applicant’s submissions founded on that assumption are rejected.

[16] Given the limited purpose of an order for compensation discussed in the authorities, in the circumstances, and applying the ‘fair go all round’ principle, I do not consider that it would be just in this case to embrace the full position of either party in relation to remedy.

[17] In all the circumstances, an appropriate level of compensation is the mid point between 2 weeks of employment in the second half of January and 26 weeks of employment assuming a full extension of the Applicant’s contract - that is, 14 weeks.

[18] I have considered the matters specified in s.392(2). There is no suggestion that an award of compensation will threaten the financial viability of the Council. I am satisfied that issues of mitigation do not lead to a reduction in the award of compensation and that none of the other matters that must be considered in accordance with s.392(2) militate against the outcome I consider appropriate.

[19] The amount of compensation to be awarded is $30.9525 per hour x 8 hours per week x 1.75 times (average between Saturday and Sunday loading) x 14 weeks = $6,061.34. An order has issued in conjunction with these reasons.

VICE PRESIDENT

Appearances:

Ms P Bergen, the Applicant, appeared for herself

Mr C Catchlove appeared for the Respondent

Hearing details:

Darwin

2015

26 March

Sydney

2015

31 March

7 April

Final written submissions:

Jurisdiction

Applicant 1 April 2015

Respondent 2 April 2015

Remedy

Applicant 8 April 2015

Respondent 9 April 2015

Printed by authority of the Commonwealth Government Printer

<Price code A, PR562990>