Pia Cecilia Westblad v Jaktomat Pty Ltd T/A Hains Solicitors

[2018] FWC 3499

[2018] FWC 3499

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Pia Cecilia Westblad
v
Jaktomat Pty Ltd T/A Hains Solicitors
(U2017/8338)

COMMISSIONER SIMPSON BRISBANE, 17 JULY 2018

Application for an unfair dismissal remedy – Whether Respondent a small business – Whether Jaktomat Pty Ltd and Lawlogic Pty Ltd associated entities – Respondent not a small business – Application within jurisdiction –Job no longer required because of operational changes – No other positions for redeployment – Respondent failed to consult – Dismissal Unfair because of failure to consult – One weeks wages ordered as compensation.

[1] This matter concerns an application under section 394 of the Fair Work Act 2009 (the Act) by Ms Pia Westblad (Ms Westblad) who alleges that the termination of her employment with the Jaktomat Pty Ltd (Jaktomat) was unfair in accordance with section 385 of the Act. The application was filed on 2 August 2017 and Jaktomat subsequently raised two jurisdictional objections on the basis it was a small business and that the dismissal was a case of genuine redundancy.

[2] Difficulties were experienced in conducting a conciliation conference between the parties to this dispute, and also in bringing the matter to a hearing due to Ms Westblad living overseas in Sweden after her termination. Ultimately however the matter was brought to hearing on 18 June, 2018 with Ms Westblad participating by telephone from Sweden.

[3] Mr Michael Hains is the director and manager of Jaktomat Pty Ltd T/A Hains Solicitors and has been operating this legal practice since 1992, having moved to an office in Spring Hill in 2005. He operated this legal practice with a specialisation in residential conveyancing for the majority of this time.

[4] A member of his staff, Ms Debbie McMahon, moved to Bundaberg, having advised Jaktomat she was doing so in November 2015. When Ms McMahon moved to Bundaberg she continued to work for Jaktomat, sourcing conveyancing work and doing so from her home.

[5] In November 2016 Ms McMahon spoke to Jaktomat and discussed the possibility of opening a physical office in Bundaberg with a view to sourcing additional conveyancing work for the company. Ms McMahon also stated she knew of a person that could be hired that would be able to assist her. An employment offer was extended to Ms Westblad on 22 November 2016.

[6] Ms Westblad commenced employment with Jaktomat on a full time basis from 9 January 2017 as a Conveyancing Manager until her employment ended on 18 July 2017, a period of 6 months and 9 days.

[7] It is not contested that Ms Westblad’s employment with Jaktomat came to an end on 18 July 2017, at which time she was paid her leave entitlements and one week’s pay in lieu of notice.

[8] On the day of her dismissal a discussion took place between Ms Westblad and Ms McMahon, discussing the dismissal in terms of it being a redundancy.

[9] Ms Westblad submitted that the business employed in excess of 15 people at the time of her dismissal, thereby making the qualifying period to bring an unfair dismissal application 6 months on the basis that Jaktomat was not a small business.

[10] Ms Westblad further submitted that her dismissal was not due to genuine redundancy, as the position she formally held was advertised and filled on a part time basis, indicating that her role was still required in the business.

[11] Ms Westblad appeared on her own behalf, and Mr Perry Russell was granted leave under s.596 to appear on behalf of Jaktomat for reasons given in transcript.

[12] Ms Westblad relied on a range of material including an email of 23 May 2017 and also a copy of a letter of offer of employment dated 22 November 2016, text messages exchanged between Ms McMahon, Mr Hains and herself, a letter of termination dated 18 July 2017, a Centrelink Employment Separation Certificate and copies of job advertisements dated 17 July and 25 July 2017. Ms Westblad only relied upon the text messages to establish the length of her employment.

[13] Mr Hains for Jaktomat filed two statements dated 30 May 2018, the first made up of 36 paragraphs with attachments 1 to 7, 1 and the second made up of 64 paragraphs2 with attachments 1 to 4. Mr Hains also filed two further statements of 6 June 2018 the first made up of 2 paragraphs3 and the second made up of four paragraphs.4

SMALL BUSINESS OBJECTION

[14] Section 23 of the Act reads as follows:

“23 Meaning of small business employer

(1) A national system employer is a small business employer at a particular time if the employer employs fewer than 15 employees at that time.

(2) For the purpose of calculating the number of employees employed by the employer at a particular time:

(a) subject to paragraph (b), all employees employed by the employer at that time are to be counted; and

(b) a casual employee is not to be counted unless, at that time, he or she has been employed by the employer on a regular and systematic basis.

(3) For the purpose of calculating the number of employees employed by the employer at a particular time, associated entities are taken to be one entity.

(4) To avoid doubt, in determining whether a national system employer is a small business employer at a particular time in relation to the dismissal of an employee, or termination of an employee's employment, the employees that are to be counted include (subject to paragraph (2)(b)):

(a) the employee who is being dismissed or whose employment is being terminated; and

(b) any other employee of the employer who is also being dismissed or whose employment is also being terminated."

[15] Ms Westblad stated that to her knowledge Jaktomat employed 24 people at the time of her dismissal on the basis that it had a related entity whose employees should also be counted. Ms Westblad provided evidence in the form of a job advertisement placed by Hains Solicitors on Seek, an online job advertisement board, where it stated that:

“We have 24 people but we need more, ASAP”

[16] This job listing also gave the contact details of Mr Michael Hains, listing him as the owner of Hains Solicitors, Generation Conveyancing and Keylaw Conveyancing.

[17] Ms Westblad contends that Jaktomat was correct when advertising the fact they employed 24 staff as reference was made in her letter of offer to working with staff in Brisbane, the Gold Coast and other offices.

[18] Jaktomat admitted that comments made in the Seek online advertisement referring to 24 employees, however claimed that the comments were made to give the impression the firm was larger than it was in an attempt to attract higher quality applicants.

[19] Jaktomat, in their submission, stated that at the time of dismissing Ms Westblad they employed 10 staff.

[20] The question before the Commission is to make a determination regarding whether or not Jaktomat had any associated entities and, if it does, whether those associated entities employ any persons who should be included in determining the number of employees employed by Jaktomat at the relevant time.

[21] Section 50AAA of the Corporations Act 2001 (“the Corporations Act”) reads as follows in relation to associated entities:

“(1) One entity (the associate) is an associated entity of another entity (the principal) if subsection(2), (3), (4), (5), (6) or (7) is satisfied.

(2) This subsection is satisfied if the associate and the principal are related bodies corporate.

(3) This subsection is satisfied if the principal controls the associate.

(4) This subsection is satisfied if:

(a) the associate controls the principal; and

(b) the operations, resources or affairs of the principal are material to the associate.

(5) This subsection is satisfied if:

(a) the associate has a qualifying investment (see subsection (8)) in the principal; and

(b) the associate has significant influence over the principal; and

(c) the interest is material to the associate.

(6) This subsection is satisfied if:

(a) the principal has a qualifying investment (see subsection (8)) in the associate; and

(b) the principal has significant influence over the associate; and

(c) the interest is material to the principal.

(7) This subsection is satisfied if:

(a) an entity (the third entity) controls both the principal and the associate; and

(b) the operations, resources or affairs of the principal and the associate are both material to the third entity.

(8) For the purposes of this section, one entity (the first entity) has a qualifying investment in another entity (the second entity) if the first entity:

(a) has an asset that is an investment in the second entity; or

(b) has an asset that is the beneficial interest in an investment in the second entity and has control over that asset.”

[22] It was submitted that the issue of the number of employees turns on an interpretation of this section of the Corporations Act as it applies to the relationship between Jaktomat and Lawlogic Pty Ltd (Lawlogic) as there is connection between the two corporate entities in that:

•  Mr Hains is a 50% shareholder in Jaktomat and one of its two directors; and

•  Mr Hains is the shareholder of a company (Satellite Law Co No 1 Pty Ltd) that in turn is a 33% shareholder of Lawlogic (with the other shareholder having a 67% shareholding), and also one of the two directors of Lawlogic.

[23] Jaktomat has submitted the subsections 2, 4, 5 and 6 do not apply in this situation as Jaktomat and Lawlogic do not hold shares in each other. Jaktomat has further submitted that section 7 does not apply as there is no third corporation that holds shares in both Jaktomat and Lawlogic. Searches conducted through the Australia Securities and Investment Commission (ASIC) on 23 October 2017 were completed, the results of which show that these claims by Jaktomat are correct.

[24] Section 50AA of the Corporations Act 2001 (“the Corporations Act”) reads as follows in relation to control:

“(1) For the purposes of this Act, an entity controls a second entity if the first entity has the capacity to determine the outcome of decisions about the second entity’s financial and operating policies.

(2) In determining whether the first entity has this capacity:

(a) The practical influence the first entity can exert (rather than the rights it can enforce) is the issue to be considered; and

(b) Any practice or pattern of behaviour affecting the second entity’s financial or operating policies is to be taken into account (even if it involves a breach of agreement or a breach of trust).

(3) The first entity does not control the second entity merely because the first entity and a third entity jointly have the capacity to determine the outcome of decisions about the second entity’s financial and operating policies.

(4) If the first entity:

(a) has the capacity to influence decisions about the second entity’s financial and operating policies; and

(b) is under a legal obligation to exercise that capacity for the benefit of someone other than the first entity’s members;

the first entity is taken not to control the second entity.”

[25] Ms Westblad did not advance knowledge or evidence of the business practices between Jaktomat and Lawlogic other than the evidence of the Seek online advertisement and details in her letter of offer as detailed previously. In her oral evidence Ms Westblad conceded she was unable to give any evidence concerning the matter on the control issue concerning the relationship between Jaktomat or Mr Hains and Lawlogic.

[26] Jaktomat submitted that neither Jaktomat nor Lawlogic hold a legal power to determine the outcome of decisions of the other company in relation to their financial policies, operating policies or otherwise. Jaktomat further submitted that there is no history of either company having such power over the other.

[27] Jaktomat and Lawlogic refer work where there is a perceived conflict to each other, but they do not decide whether or not the other accepts the referral.

[28] Jaktomat stated that the arrangements as described do not create a situation where either Jaktomat or Lawlogic control the other as;

•  Neither company has any rights or powers as a result of Mr Hains’ positions or possessions;

•  As a 50% director and minority shareholder Mr Hains does not have the legal capacity to determine the outcome of decisions made by Lawlogic;

•  Even if Jaktomat was considered a director of Lawlogic by virtue of Mr Hains’ position as director, and the second director was considered irrelevant, Mr Hains still has a legal obligation to exercise his powers for the benefit of company members, bringing this proposed situation under the exemption of section 50AA(4) of the Corporations Act.

[29] It is the submission of Jaktomat that the Commission should find that the relationship between Jaktomat and Lawlogic does not contain the requisite aspect of control required to determine that they are associated entities under Section 50AAA of the Corporations Act. Consequently, the number of employees that Jaktomat has for the purposes of the Act is under 15.

[30] Jaktomat further submits that as it has under 15 employees it is a small business for the purposes of the Act, and Ms Westblad would have needed to be have been employed for a minimum of 12 months continuous service in order to be within jurisdiction.

[31] There was no dispute that if I was to find Jaktomat and Lawlogic are associated entities than Jaktomat would not be a small business employer.

[32] Mr Hains said there were no contractual relationships between the two entities. Mr Hains said he had been a sole practitioner for 25 years when Mr Perry suggested the creation of a new business. Mr Hains said he had written some software to assist in the running of a law office and it was decided a law firm called Creevey and Russell would open the new business Lawlogic at the Gold Coast and would use his software in the business, and on that basis he would receive a shareholding (33%) in the new business but was not required to invest any other money into Lawlogic as Creevey and Russell would be funding the establishment of the new business. He said Jaktomat also uses the software provided to Lawlogic.

[33] Mr Hains said his Bundaberg office did not act for both buyers and sellers and matters would be referred to Lawlogic for that reason. Mr Hains said there was no doubt he had the power as a director to influence decisions in Lawlogic, but he described this as an ability to talk but that he did not have the capacity to determine outcomes. Put another way, he said he could influence, but practically he could not exert power to determine outcomes. Mr Hains said concerning any practices or pattern of behaviour he had no monetary investment in the company and his software was the reason he held the shares.

[34] Except in chapter 2E of the Corporations Act, a reference to an “entity” in the Corporations Act is a reference to “a natural person, a body corporate (other than an exempt public authority), a partnership or trust.”(s.64A of the Corporations Act).

[35] In order for Jaktomat and Lawlogic to be associated entities for the purposes of Section 50AAA of the Corporations Act it must be demonstrated that, under subsection 7, Mr Hains as a third entity controls both Jaktomat and Lawlogic. It has not been put in contest that Mr Hains controls Jaktomat, so the question turns to whether he controls Lawlogic.

[36] Key to this matter is whether there was a capacity, in accordance with the definition in section 50AA(1), for Mr Hains to determine the outcome of decisions of Law logic. The evidence establishes he was one of two directors of Lawlogic, and also a sole director and shareholder of Satellite Law Co No 1 Pty Ltd that held a qualifying investment of a 33% in Lawlogic.

[37] I am satisfied that Mr Hains was capable of influencing Lawlogics financial and operational policies given his directorship of Lawlogic and his sole directorship and shareholding in Satellite Law that held 33% shares in Lawlogic.

[38] I have not ignored the evidence of Mr Hains that he claimed as a matter of practice or pattern of behaviour, he had no history of exercising control over Lawlogic. However the evidence is Mr Hains holds the practical influence of being one of one only two directors of Lawlogic and is a qualifying shareholder giving him the capacity to exert control. The fact that he appears not to be in the habit of doing so does not alter the fact that he holds the capacity to exert such influence. As one of only two directors of Lawlogic Mr Hains had wide powers to exercise all of the powers of the Company, and is also subject to the duties of a director of Lawlogic. If he did not wish to hold such power he could have elected to remain a minority shareholder and to not assume to the role of director as part of the arrangement in establishing Lawlogic.

[39] The operations, resources or affairs of both Jaktomat and Lawlogic are also material to Mr Hains. There is no debate about that matter for the purposes of Jaktomat. In regard to Lawlogic his 100% shareholding in Satellite Law makes clear he had a material interest in Lawlogic.

[40] I also do not accept Mr Hains circumstances would fall within the exemption in section 50AA(4) such that his capacity to influence decisions in Lawlogic is constrained by a legal obligation to exercise his influence in Lawlogic for the benefit of Jaktomat. This is because his directorship and shareholding in Lawlogic is separate from his directorship and shareholding in Jaktomat.

[41] On the basis of the conclusions above I am satisfied Jaktomat and Lawlogic are associated entities, and therefore Jaktomat is not a small business employer for the purposes of the FW Act and Ms Westblad satisfies the minimum employment period.

GENUINE REDUNDANCY

[42] Section 389 of the Act reads as follows;

“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.”

[43] Ms Westblad has submitted that her dismissal was not a case of a genuine redundancy due to a Seek online advertisement showing that Jaktomat would be hiring a new employee. The job advertisement was for a position in the same office Ms Westblad had been located in Bundaberg and was dated 25 July 2017, 1 week after her dismissal.

[44] Ms Westblad has also submitted evidence of a conversation between herself and the remaining conveyancer in the office, Ms Deborah McMahon, where she states that Ms McMahon is conveying the fact that she is still busy in the office.

[45] Is it the submission of Ms Westblad that the Commission should find that her position was not made redundant due to the requirement to hire someone after she was dismissed, indicating a need for two employees in the Bundaberg office, as well as the fact that Ms McMahon was busy, indicating that there was still work to be completed, possibly enough to justify keeping her employed.

[46] For a dismissal to constitute a genuine redundancy each of the discrete requirements in s.389(1)(a), s.389(1)(b) and s.389(2) must be satisfied.

[47] Jaktomat has submitted that the operational requirements of the company changed over the period of time Ms Westblad was hired to the extent that the workload did not allow it to continue her employment.

[48] Jaktomat has submitted the details of the relevant workload in Bundaberg, where Ms Westblad was located, was such that a conveyancer working for the company in that office would require a workload equal to 8 files a week.

[49] When Jaktomat opened a physical office in Bundaberg and hired a second staff member, it is submitted that this was in anticipation of an increase in workload such to justify the decision to hire the additional staff member.

[50] Jaktomat has submitted the following details about the workload in the Bundaberg Office;

•  Prior to opening the office the average number of files was 8.8 per week

•  After opening the office the average number of files was 10.4 files per week

•  In the month prior to Ms Westblad’s dismissal the average number of files was 9 per week.

[51] In addition to the decrease in files, Jaktomat has submitted additional operational reasons for the decrease in the workload in the Bundaberg office.

[52] Jaktomat submits that he had difficulty in supervising the work being done at the Bundaberg office as Mr Hains was located in Brisbane. As Mr Hains was located a significant distance away he was unable to properly monitor the work being completed.

[53] It is Jaktomat’s submission that part of the company process involved the double checking of the opening of a file, and this was unable to be completed properly in the Bundaberg office, as after Ms Westblad would open a file, Ms McMahon was not always in the office to double check the file in a reasonable time.

[54] Jaktomat submits that as this requirement could not be carried out in the Bundaberg office it was necessary that the file opening, and subsequent double checking, was completed in the Brisbane office, moving more work to Brisbane from the Bundaberg office.

[55] Jaktomat has submitted that a file Ms Westblad worked on resulted in a claim of $16.487.56, which it became aware of after the dismissal of Ms Westblad. Jaktomat attributed this error to the inability to properly supervise the work in the Bundaberg office.

[56] Jaktomat has submitted that the Bundaberg office, in only having a single phone line for incoming calls with a single person answering them, created unreasonable delays in having these calls answered. As a result of this issue Mr Hains arranged to have all phone calls for the Bundaberg office answered from the Brisbane office to address this issue.

[57] It is Jaktomat’s submission that due to the lack of work to be completed in the Bundaberg office, and the referral of specific workloads to the Brisbane office as required by operational reasons and considerations, the position of Ms Westblad had become unsustainable, requiring that her position be made redundant as per Section 389(1)(a) of the Act.

[58] I have considered the evidence and it is apparent from the evidence of Mr Hains that a decision was taken based on operational requirements that Jaktomat no longer required Ms Westblad’s job in Bundaberg to be performed by anyone.

[59] Ms Westblad was covered under the Legal Services Award 2010 (the Award) which addresses the requirements of section 389(1)(b).

[60] Clause 8 of the Award reads as follows

“8 Consultation

8.1 Consultation regarding major workplace change

(a) Employer to notify

(i) Where an employer has made a definite decision to introduce major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer must notify the employees who may be affected by the proposed changes and their representatives, if any.

(ii) Significant effects include termination of employment; major changes in the composition, operation or size of the employer’s workforce or in the skills required; the elimination or diminution of job opportunities, promotion opportunities or job tenure; the alteration of hours of work; the need for retraining or transfer of employees to other work or locations; and the restructuring of jobs. Provided that where this award makes provision for alteration of any of these matters an alteration is deemed not to have significant effect.

(b)Employer to discuss change

(i) The employer must discuss with the employees affected and their representatives, if any, the introduction of the changes referred to in clause 0, the effects the changes are likely to have on employees and measures to avert or mitigate the adverse effects of such changes on employees and must give prompt consideration to matters raised by the employees and/or their representatives in relation to the changes.

(ii) The discussions must commence as early as practicable after a definite decision has been made by the employer to make the changes referred to in clause 0.

(iii) For the purposes of such discussion, the employer must provide in writing to the employees concerned and their representatives, if any, all relevant information about the changes including the nature of the changes proposed, the expected effects of the changes on employees and any other matters likely to affect employees provided that no employer is required to disclose confidential information the disclosure of which would be contrary to the employer’s interests.”

[61] Jaktomat in his submission stated he was unaware that consultation was required on a statutory basis. Jaktomat has submitted that the only discussion that took place with Ms Westblad was a conversation on the day of her dismissal, 18 July 2017, in which Ms McMahon discussed the situation with Ms Westblad.

[62] Ms Westblad gave brief oral evidence about the nature of the exchange she had on the day she was terminated and said Ms McMahon seemed sad and Ms Westblad believed it was an honest discussion and she understood from the conversation that the Bundaberg office was closing. Ms Westblad clarified she understood Ms McMahon would go back to how she worked before, that being working from home without an office.

[63] Jaktomat has submitted that given the size of the company, the likely outcome of any discussions with Ms Westblad regarding the redundancy, that Jaktomat has complied with his obligations under section 389(1)(b) of the Act.

[64] Mr Hains said that if his duty to consult went further than what was undertaken and he had been aware of that duty he would have done so but any such consultation would not have prevented Ms Westblad’s redundancy. 5

[65] Ms Westblad asked Mr Hains why she was not advised earlier of the decision. Mr Hains said that things happen quickly and there was a sudden drop off in work in Bundaberg and the matter had not been raised with Ms Westblad earlier because the situation became dire in Bundaberg fairly quickly.

[66] I accept Mr Hains evidence that he was not aware of the full extent of consultation required under the relevant award, however it is also apparent that Jaktomat has failed to properly consult as required by the Modern Award after the decision had been made as it is apparent there was no process afforded to Ms Westblad where the effects the changes were discussed with her and she was then afforded a real opportunity to raise measures to avert or mitigate the adverse effects of such changes on her. Further, because this process was not followed, there was no subsequent process whereby Jaktomat then would give prompt consideration to matters raised by Ms Westblad in relation to the changes.

Redeployment

[67] Given the failure to meet the consultation obligation under the Award the redundancy cannot be a genuine redundancy as defined by s.389, however it is still appropriate to address the issue or redeployment as it is relevant to the substantive matter. Jaktomat submits that was no opportunity to redeploy Ms Westblad elsewhere in the company at the time of her dismissal. This was due to significant parts of the workload having already been transferred to the Brisbane office, and the downturn in work that was experienced during this time. Jaktomat submits that there was no position available for a conveyancer in Bundaberg.

[68] Jaktomat also submits that there was no position available for a conveyancer in the Brisbane office that Mr Hains could have transferred Ms Westblad into. Mr Hains admits that he placed an advertisement seeking an additional resource in the Brisbane office, specifically a more junior role, however this role was never filled, nor was anyone interviewed for it.

[69] It is Jaktomat’s submission that due to the lack of available positions in the business at any location, this means that it has satisfied the requirements of section 389(2) of the Act.

[70] Ms Westblad submitted at the hearing that she would have been prepared to accept the office junior role in Bundaberg, and had there been a discussion with Ms McMahon or Mr Hains she would have been happy to stay. Jaktomat said this was a part time position involving simple tasks, answering the phone and doing very basic office tasks and was nothing like Ms Westblad’s conveyancing job as Ms Westblad was employed full time as a conveyancer undertaking legal work on residential sales and purchase files whereas the new role was a junior one answering the phone and to be in the office if a client came in.

[71] Ms Westblad asked why she was not asked if she could do other tasks rather than being made redundant. Mr Hains said at the time the decision was not to have any employees other than Ms McMahon in Bundaberg.

[72] Mr Hains clarified the evidence he had given in his Affidavit of 30 May 2018 6 concerning the discussion he had with Ms McMahon regarding keeping the Bundaberg Office open. He said that the discussion referred to did not occur until about three to five days after Ms Westblad had been made redundant, either on the Friday or following Monday and was made as a result of complaints from clients who attended the office and found it closed. Mr Hains said the solution to Ms McMahons concerns was to employ a junior to undertake basic tasks. He said the person employed was a school leaver working a few days a week. He said he believed it would have been offensive to offer such a junior role to Ms Westblad, but in any event at the time of Ms Westblad’s termination it was not his intention to employ anyone else in Bundaberg and the plan to employ someone else was formulated days later.

[73] I accept on the basis of Mr Hains evidence that the office junior position did not exist and was not yet contemplated at the time of Ms Westblad’s termination and on that basis could not have been a position at the relevant time that it would have been reasonable for Ms Westblad to be redeployed into.

SECTION 387 CONSIDERATIONS

[74] Given I have concluded there was not a genuine redundancy within the meaning of section 389 I am required to determine under section 387 if the dismissal was unfair. I am required to take into account the following criteria in determined if a dismissal was harsh, unjust or unreasonable.

“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.”

[75] I am guided by the approach in UES (Int’l) Pty Ltd v Leevan Harvey where it was found that the criteria in s.389(1)(b) had not been met but otherwise the criteria in s.389 were satisfied (as is the case here).

[76] The reason for the dismissal does not relate to Ms Westblad’s capacity or conduct and therefore section 387(a) is a neutral consideration. Notification (s.387(b)) and opportunity to respond (s.387(c)) are also neutral considerations as is s.387(d), s.387(e), s.387(f) and s.387(g).

[77] There was sound, defensible and well-founded reasons for Ms Westblad’s dismissal being that the role was no longer required, however as Jaktomat failed to consult as required by the Award this was unreasonable and taking into account the matters referred to above was unfair.

REMEDY

[78] Ms Westblad is not seeking reinstatement. As Ms Westblad appears to have emigrated to Sweden and on the evidence no role exists to which Ms Westblad could be reinstated an order for reinstatement is inappropriate. Ms Westblad, in her submission, has sought the remedy of compensation in the amount of 26 weeks’ pay.

[79] Ms Westblad’s employment ended on 17 July and she was paid one weeks’ notice on termination. Ms Westblad said she was offered other employment on 26 July 2018 and she believed she commenced on a Monday which would have been the 6 August 2018 earning an average of $750 per week gross and she worked for a few weeks with that employer.

[80] I am satisfied that the remuneration Ms Westblad would have received, or would have been likely to receive if she had not been dismissed would have been another one weeks remuneration. This is the time it would have taken Jaktomat to comply with its obligation under the Award to consult. One week’s pay amounts to $1000 gross plus 9.5% superannuation.

[81] Ms Westblad indicated that she earned income after her dismissal but I make no deduction on that basis as the evidence was that income was not earned in the week following her dismissal. I make no deduction on the basis of s.392(2)(f) as the week after her termination does not extend to the period referred to in s.392(2)(f). There is no evidence that an order for the payment of $1000 plus 9.5% superannuation would affect the viability of the business. Issues concerning length of service, mitigation and misconduct are not a basis to further reduce the amount. There was no evidence of misconduct contributing to the decision to terminate. The amount of $1000 plus 9.5% superannuation does not exceed the compensation cap. There are no other matters relevant to the determination. An order for the payment of compensation of $1000 gross plus 9.5% superannuation less taxation as required by law, by Jaktomat Pty Ltd to Pia Westblad is appropriate. An order to this effect will be issued with this decision.

COMMISSIONER

Appearances:

Ms P. Westblad appearing on her own behalf

Mr P. Russell appearing for the Respondent

Hearing details:

2018,

Brisbane:

18 June

Printed by authority of the Commonwealth Government Printer

<PR608131>

 1   Exhibit 1.

 2   Exhibit 2.

 3   Exhibit 3.

 4   Exhibit 4.

 5   Exhibit 4 para 2.

 6   Exhibit 2 para 54.