Rebecca Roberts v 3D Decorators Pty Ltd
[2024] FWC 36
•5 JANUARY 2024
| [2024] FWC 36 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Rebecca Roberts
v
3D DECORATORS PTY LTD
(U2023/8032)
| COMMISSIONER PLATT | ADELAIDE, 5 JANUARY 2024 |
Application for an unfair dismissal remedy – jurisdictional objection – whether there was a dismissal – jurisdictional objection dismissed – dismissal found to be harsh, unjust or unreasonable – compensation awarded.
On 25 August 2023, Ms Rebecca Roberts (the Applicant or Ms Roberts) lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) seeking a remedy for an alleged unfair dismissal by her former employer, 3D DECORATORS PTY LTD (the Respondent).
Ms Roberts contends she was unfairly dismissed on 8 August 2023.
The Respondent opposes the application and raises a jurisdictional objection. It contends that Ms Roberts was not dismissed, rather she was a casual employee.
A conciliation conference was conducted on 11 September 2023 however the matter was unable to be resolved.
On 28 September 2023, Directions were issued for the filing of material and determination of the jurisdictional objection and merits.
A second conciliation conference was conducted on 25 October 2023 but did not resolve the matter.
The material received was collated into a Digital Court Book (DCB) and distributed to parties prior to the Hearing.
The Hearing was conducted by way of a Determinative Conference, in person, in Adelaide on 26 October 2023. Ms Roberts was self-represented, the Respondent was represented by Ms Bronwyn Dayman.
At the conclusion of the Hearing, I found that Ms Roberts was unfairly dismissed and made an award of compensation. These are the detailed reasons for my decision.
LEGISLATION
The provisions of the Act which are relevant to determination of the jurisdictional objection and the merits are as follows:
15A Meaning of casual employee
(1)A person is a casual employee of an employer if:
(a) an offer of employment made by the employer to the person is made on the basis that the employer makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work for the person; and
(b) the person accepts the offer on that basis; and
(c) the person is an employee as a result of that acceptance.
(2)For the purposes of subsection (1), in determining whether, at the time the offer is made, the employer makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work for the person, regard must be had only to the following considerations:
(a) whether the employer can elect to offer work and whether the person can elect to accept or reject work;
(b) whether the person will work as required according to the needs of the employer;
(c) whether the employment is described as casual employment;
(d) whether the person will be entitled to a casual loading or a specific rate of pay for casual employees under the terms of the offer or a fair work instrument.
Note: Under Division 4A of Part 2‑2, a casual employee who has worked for an employer for at least 12 months and has, during at least the last 6 months of that time, worked a regular pattern of hours on an ongoing basis may be entitled to be offered, or request, conversion to full‑time employment or part‑time employment.
(3)To avoid doubt, a regular pattern of hours does not of itself indicate a firm advance commitment to continuing and indefinite work according to an agreed pattern of work.
(4)To avoid doubt, the question of whether a person is a casual employee of an employer is to be assessed on the basis of the offer of employment and the acceptance of that offer, not on the basis of any subsequent conduct of either party.
(5)A person who commences employment as a result of acceptance of an offer of employment in accordance with subsection (1) remains a casual employee of the employer until:
(6)the employee’s employment is converted to full‑time or part‑time employment under Division 4A of Part 2‑2; or
(b) the employee accepts an alternative offer of employment (other than as a casual employee) by the employer and commences work on that basis
A “regular casual employee” is defined in s.12 of the Act as:
“a national system employee of a national system employer is a regular casual employee at a particular time if, at that time:
(a) the employee is a casual employee; and
(b)the employee has been employed by the employer on a regular and systematic basis.”
23 Meaning of small business employer
(7)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, the employee is a regular casual employee of the employer.
(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.
(8)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.
382 When a person is protected from unfair dismissal
A person is protected from unfair dismissal at a time if, at that time:
(a)the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(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.
384 Period of employment
(1)An employee's period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee.
(2)However:
(a)a period of service as a casual employee does not count towards the employee's period of employment unless:
(i)the employment as a casual employee was as a regular casual employee; and
(ii)during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis; and
(b)if:
(i)the employee is a transferring employee in relation to a transfer of business from an old employer to a new employer; and
(ii)the old employer and the new employer are not associated entities when the employee becomes employed by the new employer; and
(iii)the new employer informed the employee in writing before the new employment started that a period of service with the old employer would not be recognised;
the period of service with the old employer does not count towards the employee's period of employment with the new employer.
385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
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.
The provisions of the Act which are relevant to the merit include:
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.
Note: For the purposes of paragraph (a), the following conduct can amount to a valid reason for the dismissal:
(a) the person sexually harasses another person; and
(b) the person does so in connection with the person’s employment.
EVIDENCE
Ms Roberts provided two statements (including attachments)[1] and gave evidence on her own behalf. Ms Roberts also called Mr Daniel Kelerman who had previously provided a Statutory Declaration. The Respondent submitted statements and reply statements from Ms Bronwyn Dayman (Part Owner and Manager) and Ms Ebony Byrne (Sales Assistant), both of these persons gave evidence.
The entirety of the Digital Court Book was received into evidence with appropriate weight given to the material based on relevance and admissibility. The Respondent also submitted a copy of the Applicant’s time book.[2]
Ms Roberts submitted a statement[3] and gave evidence, her relevant evidence is summarised below:
·She commenced employment on 9 March 2022 as a shop assistant.
·On 29 June 2023 she was advised by Susan Daniel (Ms Dayman’s sister/business partner) that they were looking to reduce her hours. It was proposed that she work permanent part time hours between 9:00am to 1:00pm, Monday to Friday.
·On 30 June 2023 she was provided with a letter which proposed her continued engagement from 3 July 2023 which would be as a casual Level 1 Shop Assistant at $29.23 per hour with the work to be generally between 9:00am to 1:00pm, Monday to Friday with variations by agreement.[4]
·On 2 July 2023 Ms Roberts responded to the offer, suggesting that the hours be from 9:00am to 2:00pm and that the rate of pay be Level 2 Shop Assistant at $31.61 per hour.[5]
·In May 2023 Ms Roberts arranged to attend a non-work related training course in Sydney on 12-13 August 2023. Ms Roberts was due to fly to Sydney around midday on Friday 11 August 2023 and return on the afternoon of Monday 14 August 2023.[6]
·On 1 August 2023 Ms Dayman had a discussion with Ms Roberts about store coverage during her intended absence.
·At about 12:55 pm on Tuesday, 8 August 2023, Ms Roberts was advised by Ms Dayman that there had been a company restructure and that today would be her last shift. Ms Roberts asked if she had done anything wrong and was advised that she had not done anything wrong but they were just doing a company restructure, sales were down and they were trying to save money. Ms Roberts was asked to hand her key back. Ms Roberts handed back her key, completed her time book, collected her things and left via the front door. Shortly after this, Ms Roberts had a conversation with Mr Kelderman where she told him she had just been fired.
·On 9 August 2023 Ms Roberts observed a person in the store in uniform who she believed to be a new employee.
·Ms Roberts did not receive any communication from the Respondent after 8 August 2023.
·Ms Roberts contends there was no genuine redundancy.
·Ms Roberts contended they were a number of occasions where only one salesperson was working in the store.
·Ms Roberts submitted details of 7 roles that she applied for in the period between 8 August and 6 September 2023.[7]
·Ms Roberts advised that she had secured new employment with effect from 19 October 2023 on the same wage rate as she received whilst employed with the Respondent.
·As to remedy, Ms Roberts did not seek reinstatement but sought 12 weeks compensation at the rate of $666.07 per week.
Mr Daniel Keldermans submitted a statement[8] (in the form of a Statutory Declaration) and gave evidence on behalf of the Applicant. Mr Kelderman’s contended that Ms Ebony Byne told him at about 3:00pm on 9 August 2023 that Ms Roberts ‘was let go’ from Carpet Court Kadina.
Ms Dayman submitted a statement[9] and reply statement[10] and gave evidence. Her relevant evidence is summarised below:
·Ms Dayman was the Manager and Part Owner of the Respondent.
·Ms Roberts commenced employment on 9 March 2022 at the Kadina Store as a retail assistant.
·There were 15 persons employed by the Respondent as at 8 August 2023.
·Ms Roberts stated that for proper operation there needed to be two employees at the store at all times.
·There was no official roster for the store, however there is a central staff calendar which is used to indicate when staff are not available.
·The hours offered to Ms Roberts were very random. Ms Roberts was called randomly depending on how busy the store was at any given time. Ms Roberts was offered shifts on an as and when required basis, and she could reject offered shifts based on her preference and availability.
·Ms Dayman agreed that on 30 June 2023 she provided Ms Roberts with a letter which proposed her continued engagement from 3 July 2023 would be as a casual Level 1 Shop Assistant at $29.23 per hour with the work to be generally between 9:00am to 1.00pm, Monday to Friday, with variations by agreement.[11] Despite formal agreement not being reached, that was the basis upon which Ms Roberts was engaged from that date.
·In late July 2023 Ms Dayman became aware that Ms Roberts had blocked herself out from 10 to 14 August 2023. Ms Dayman was also intending to be away on those dates.
·Ms Dayman did not want to have a situation where a single employee (Ebony) would be in the Store alone. On or about 1 August 2023, Ms Dayman spoke to Ms Roberts about the time clash. Ms Dayman advised Ms Roberts that if she was not available on those dates, then she would need to find and train another casual employee. Ms Roberts did not change her plans.
·On 8 August 2023 a person named ‘Sam’ was offered a Part Time role after Ms Roberts advised she wasn’t available to work on Friday 11 and Monday 14 August 2023.
·At 12:55pm on 8 August 2023, Ms Dayman spoke to Ms Roberts and told her she had engaged another employee to cover the absences. Ms Dayman told Ms Roberts she needed her keys for the new employee to open and close the store. Ms Roberts asked if she should return her uniform and Ms Dayman advised no and to keep it because she will need it for shifts that come up.
·Ms Dayman contended that the business suffered a downturn of approximately $50,000 in the month of July 2023 and that trend continued in August. Ms Dayman asserted that Ms Roberts was advised of this position. No further evidence (for example financial statements) was submitted to support this contention.
·Ms Dayman stated that she intended to offer Ms Roberts further shifts if they became available after revenue improved and that the new employee was fully trained.
·Ms Dayman contended she did not dismiss Ms Roberts on 8 August 2023. Ms Dayman denied telling Ms Roberts that this was her last shift.
·Ms Roberts was not offered further shifts as no shifts were available.
The Respondent submitted a statement[12] and reply statement[13] from Ms Ebony Byrne. Other than the fact that Ms Byrne also works as a sales assistant at the Kadina premises of the Respondent, the majority of the information contained in the statement is irrelevant and/or hearsay. In her evidence Ms Byrne denied she told Mr Keldermans that Ms Roberts had been ‘let go.’
ASSESSMENT OF CREDIT
I recognise that the Ms Roberts and the Respondent are self-represented and I have made allowances in respect of the preparation of the witness statements submitted. However, being self-represented does not impact on a witness’s memory or account for inconsistencies in their evidence.
I had the opportunity of observing the manner in which the witnesses gave evidence. Both Mr Daniel Kelerman and Ms Ebony Byrne had a poor recollection of the events they gave evidence on. I treat their evidence with caution and have not relied upon same in determining this matter.
Ms Roberts gave her evidence in a detailed manner making appropriate concessions. Her account had a ring of truth to it.
Ms Dayman’s evidence was inconsistent in a number of areas including:
·Ms Roberts hours were random, and Ms Roberts was employed on an ‘as and when needed’ basis, when is contrasted against the time and wages records and the arrangement documented on 29 June 2023.
·There was no promise of future shifts because it depended on how busy the Kadina store was.
·Employees could choose dates they are not available versus 2 persons have to be in the store at all times (which was disputed).
·The financial position of the store and the need to dismissing Ms Roberts versus the impact of employing ‘Sam’ on a Part time basis.
I did not find Ms Dayman’s evidence persuasive. It was vague, self-serving and internally inconsistent. Where Ms Dayman’s evidence conflicts, I prefer the evidence of Ms Roberts.
CONSIDERATION
The Respondent contended that Ms Roberts had not been dismissed. Ms Roberts contends that she was dismissed on 8 August 2023 when Ms Dayman told her that there had been a company restructure, she was no longer required and that her employment would conclude that day. In the alternative, I need to consider if Ms Roberts was dismissed by virtue that she was working on a regular and systematic basis and that the Respondent failed to offer her any work after 8 August 2023.
Having determined to prefer the evidence of Ms Roberts over that of Ms Dayman I find that on 8 August 2023 Ms Roberts was told by Ms Dayman that there had been a company restructure and that today would be her last shift and asked to hand her keys back. This conduct clearly constitutes a dismissal. I reject Ms Dayman’s assertion that Ms Roberts was told she would be offered further shifts. If I am wrong about this point, I would have determined that the Respondent’s failure to offer Ms Roberts further work in accordance with the agreed position reached on 30 June 2023 would have constituted a dismissal.
There is no dispute that Ms Roberts was engaged as a casual employee.
Ms Roberts working hours in the six months prior to 8 August 2023 is depicted graphically below:
It can be seen that the minimum number of hours worked by Ms Roberts in the six months prior to 8 August 2023 was 28.5 in any fortnight. A review of the timebook indicates that Ms Roberts worked most days of the week, starting work at 9:00am and finishing at 12.30pm or later. In May, the Respondent made an offer for Ms Roberts to work part time. Whilst Ms Roberts preferred to stay as a casual employee, it was agreed that she would work Monday to Friday from 9:00am to 1:00pm (or more as required).
Ms Dayman confirmed this arrangement whilst giving evidence. Ms Dayman accepted that this arrangement could be characterised as Ms Roberts having been engaged on a regular and systematic basis and that she had a reasonable expectation that her shifts would continue on an ongoing basis.
In my view the evidence establishes that Ms Roberts worked on a regular and systematic basis and was a “regular casual employee” as defined in s.12 of the Act. Ms Roberts was a regular casual employee for at least 6 months prior to 8 August 2023
Ms Dayman advised that the Respondent has 3 stores and that on 8 August 2023 there were 15 persons employed. On that basis, the Respondent is not a small business as defined in s.23 of the Act.
Section 384 of the Act provides that a period of employment as a regular casual employee, who had a reasonable expectation that their employment would continue on a regular and systematic basis counts towards the period of employment required by s.383. The Applicant has therefore met the 6 months Minimum Employment Period requirement.
Other than the contention Ms Roberts was not dismissed, there were no other contentions that Ms Roberts was not protected from unfair dismissal within the meaning of s.382 of the Act. For the sake of completeness, I have considered whether the dismissal was a ‘genuine redundancy’ within the meaning of s.389 of the Act, however the Respondent did not present sufficient evidence to satisfy the three requirements in s.389 had been met.
Has the Applicant been dismissed?
I have found above that Ms Roberts was dismissed by Ms Dayman on 8 August 2023.
I find that Ms Roberts was dismissed at the initiative of the Respondent.
I am satisfied that the Ms Roberts has been dismissed within the meaning of s.385 of the Act.
The Respondent’s jurisdictional objection must fail and I find that Ms Roberts is protected from unfair dismissal in accordance with s.382 of the Act.
The merits
In addition to rejecting Ms Dayman’s account of the conversation on 8 August 2023, I was not persuaded that the Respondent’s business was under financial stress. No supporting evidence of Ms Dayman’s contention was presented.
Ms Dayman advised Ms Roberts on 8 August 2023 that there was no issue with her work performance and/or conduct. Absent any genuine ‘restructure’, it appears to me that the more likely reason for Ms Roberts being dismissed and not being offered more shifts, was because she declined to cancel her pre-booked travel arrangements on 11 and 14 August 2023 which impacted on Ms Dayman’s personal commitments. It appears that Ms Dayman engaged the new part time employee prior to the dismissal of Ms Roberts and once that arrangement was concluded, never intended to offer further shifts to Ms Roberts. The hiring of a part time employee with less flexibility than a casual employee also appears inconsistent with the suggestion that the Respondent’s business lost $50,000.00 in the previous month and was on track to lose more.
Was the dismissal harsh, unjust or unreasonable?
Section 387 of the 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.[14]
I set out my consideration of each below.
Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct?
In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”[15] and should not be “capricious, fanciful, spiteful or prejudiced.”[16] 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.[17]
Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination.[18] 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.[19]
There was no valid reason for Ms Roberts dismissal connected to her conduct or capacity, indeed Ms Dayman told Ms Roberts there were no issues with her on 8 August 2023. The Respondent’s contention that Ms Roberts was dismissed due to a ‘restructure’ was not made out.
Flexibility is in the nature of casual employment. This flexibility manifests on both sides, the employer has flexibility of when, and how long, to engage the employee and the employee has flexibility in when they are available to work. It is unreasonable for an employer to expect that a casual employee will be available 24/7 for the entirety of their employment.
Ms Dayman’s suggestion in her statement that her employees were free to advise when they were unavailable to work appears illusory. It is quite apparent to me that Ms Roberts was dismissed because she made a prior commitment which conflicted with Ms Dayman’s personal arrangements (which Ms Roberts was not privy to until after the flights and accommodation was booked), and when asked, did not change it. This is not a valid reason for a dismissal.
Was the Applicant notified of the valid reason?
Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment,[20] and in explicit[21] and plain and clear terms.[22]
It goes without saying that in the absence of a valid reason, Ms Roberts could not have and was not advised of same.
Was the Applicant given an opportunity to respond to any valid reason related to their capacity or conduct?
An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment.[23]
The opportunity to respond does not require formality and this factor is to be applied in a common sense way to ensure the employee is treated fairly.[24] Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements.[25]
Ms Roberts was not given an opportunity to respond to real reason for her dismissal.
Did the Respondent unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal?
The circumstances of the dismissal prevented such a request from being made.
Was the Applicant 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 the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal?
I accept that the Respondent knowledge of employment law is limited and this may have impact on the procedures followed in effecting the dismissal. Neither party made a submission to this effect.
What other matters are relevant?
Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant.
There are no other relevant matters.
Is the Commission satisfied that the dismissal of the Applicant 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 as a fundamental element in determining whether the termination was harsh, unjust or unreasonable.[26]
Having considered each of the matters specified in s.387 of the Act, I am satisfied that the sanction of dismissal of the Applicant was harsh in the circumstances.
CONCLUSION
I am therefore satisfied that the Applicant was unfairly dismissed within the meaning of s.385 of the Act.
REMEDY
Being satisfied that the Applicant:
· 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 Act.
I may, subject to the Act, order the Applicant’s reinstatement, or payment of compensation to the Applicant.
Under section 390(3) of the Act, I must not order the payment of compensation to the Applicant unless:
(a) I am satisfied that reinstatement of the Applicant is inappropriate; and
(b) I consider an order for payment of compensation is appropriate in all the circumstances of the case.
Is reinstatement of the Applicant inappropriate?
Ms Roberts did not seek reinstatement.
Having regard to the matters referred to above, I consider 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 of whether to order a remedy in a case where a dismissal has been found to be unfair remains a discretionary one…”[27]
Compensation – what must be taken into account in determining an amount?
Section 392(2) of the Act requires all of the circumstances of the case to be taken into account when determining an amount to be paid as compensation to the Applicant in lieu of reinstatement including:
(a)the effect of the order on the viability of the Respondent’s enterprise;
(b)the length of the Applicant’s service;
(c)the remuneration that the Applicant would have received, or would have been likely to receive, if the Applicant had not been dismissed;
(d)the efforts of the Applicant (if any) to mitigate the loss suffered by the Applicant because of the dismissal;
(e)the amount of any remuneration earned by the Applicant 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 the Applicant 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.
I consider all the circumstances of the case below.
Effect of the order on the viability of the Respondent’s enterprise
There was no submission made on this point, and in any event, I am satisfied that an award of compensation would not affect the viability of the Respondent.
Length of the Applicant’s service
The Applicant’s length of service was about 17 months.
Remuneration that the Applicant would have received, or would have been likely to receive, if the Applicant had not been dismissed
As stated by a majority of the Full Court of the Federal Court, “[i]n determining the remuneration that the Applicant would have received, or would have been likely to receive… the Commission must address itself to the question whether, if the actual termination had not occurred, the employment would have been likely to continue, or would have been terminated at some time by another means. It is necessary for the Commission to make a finding of fact as to the likelihood of a further termination, in order to be able to assess the amount of remuneration the employee would have received, or would have been likely to receive, if there had not been the actual termination.”[28]
Ms Roberts’ work performance and/or conduct was not the subject of any disciplinary action, although I could sense some tension between her and Ms Dayman which may have impacted the length of her future engagement.
In the circumstances, I believe it is reasonable to assess compensation in this matter on the basis that Ms Roberts would have continued to work for the Respondent for at least 6 months if she had not been dismissed.
Efforts of the Applicant to mitigate the loss suffered by the Applicant because of the dismissal
The Applicant must provide evidence that they have taken reasonable steps to minimise the impact of the dismissal.[29] What is reasonable depends on the circumstances of the case.[30]
The evidence reveals Ms Roberts actively sought work and was successful in gaining alternative employment on remuneration not less than that paid by the Respondent from 19 October 2023. Ms Roberts was without work for approximately 10 weeks.
Amount of remuneration earned by the Applicant from employment or other work during the period between the dismissal and the making of the order for compensation
The evidence before me indicates that Ms Roberts new employment provided remuneration not less than that paid by the Respondent from 19 October 2023. Ms Roberts’ financial loss as a result of the dismissal ceased at that point.
Amount of income reasonably likely to be so earned by the Applicant during the period between the making of the order for compensation and the actual compensation
The circumstances of this case do not require me to make any future predictions.
Other relevant matters
There are no other relevant matters.
Compensation – how is the amount to be calculated?
As noted by the Full Bench, “[t]he well-established approach to the assessment of compensation under s.392 of the Act… is to apply the “Sprigg formula” derived from the Australian Industrial Relations Commission Full Bench decision in Sprigg v Paul’s Licensed Festival Supermarket (Sprigg).[31] This approach was articulated in the context of the Act in Bowden v Ottrey Homes Cobram and District Retirement Villages[32].”[33]
In all the circumstances, I consider that payment of compensation is appropriate in the amount of $6216.15 which represents 10 weeks wages. [34]
In accordance with s.392(4) of the Act, I make no allowance for any shock, distress or humiliation that may have been caused by the dismissal.
An Order[35] reflecting this Decision was issued on the day of the Hearing.
COMMISSIONER
Appearances:
R Roberts, the Applicant
B Dayman, for the Respondent
Hearing details:
2023
Adelaide
26 October
Final written submissions:
19 October 2023
[1] Exhibits A1 and A2.
[2] Exhibit R1.
[3] Page 3-5 of the DCB.
[4] Page 8 of the DCB.
[5] Page 9 of the DCB.
[6] Pages 34 and 50-51 of the DCB.
[7] Page 13 of the DCB.
[8] Page 11 of the DCB.
[9] Pages 60-62 of the DCB.
[10] Pages 65-70 of the DCB
[11] Page 8 of the DCB.
[12] Pages 63-64 of the DCB.
[13] Page 71 of the DCB
[14] 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].
[15] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
[16] Ibid.
[17] Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.
[18] Edwards v Justice Giudice [1999] FCA 1836, [7].
[19] King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24].
[20] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
[21] Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).
[22] Ibid.
[23] Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), [75].
[24] RMIT v Asher (2010) 194 IR 1, 14-15.
[25] Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.
[26] 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].
[27] Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter[2014] FWCFB 7198, [9].
[28] He v Lewin [2004] FCAFC 161, [58].
[29] Biviano v Suji Kim Collection PR915963 (AIRCFB, Ross VP, O’Callaghan SDP, Foggo C, 28 March 2002), [34] citing Lockwood Security Products Pty Ltd v Sulocki and Ors PR908053 (AIRCFB, Giudice J, Lacy SDP, Blair C, 23 August 2001), [45].
[30] Biviano v Suji Kim Collection PR915963 (AIRCFB, Ross VP, O’Callaghan SDP, Foggo C, 28 March 2002), [34] citing Payzu Ltd v Saunders [1919] 2 KB 581.
[31] (1998) 88 IR 21.
[32] [2013] FWCFB 431.
[33] Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries[2016] FWCFB 7206, [16].
[34] Smith and Others v Moore Paragon Australia Ltd (2004) 130 IR 446 at par [32].
[35] PR767664.
Printed by authority of the Commonwealth Government Printer
<PR769994>
0
12
0