Rita Sipione v Asset HQ Pty Ltd T/A Asset HQ

[2014] FWC 2642

[2014] FWC 2642

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Rita Sipione
v
Asset HQ Pty Ltd T/A Asset HQ
(U2013/15476)

COMMISSIONER MCKENNA SYDNEY, 1 MAY 2014

Application for relief from unfair dismissal.

[1] Rita Sipione (“the applicant”) has lodged an application, pursuant to s.394 of the Fair Work Act 2009 (“the Act”), seeking an unfair dismissal remedy concerning her dismissal by Asset HQ Pty Ltd T/A Asset HQ (“the respondent”).

[2] The respondent did not lodge an Employer’s Response to the applicant’s application. The respondent did not participate in the conciliation that was listed on 12 December 2013 before a Fair Work Commission conciliator. In the circumstances, directions were issued on 7 January 2014 by the Commission’s Unfair Dismissals Team (“UDT”). The applicant lodged materials pursuant to the directions, but the respondent did not lodge any materials. In an amended Notice of Listing issued by the UDT on 14 March 2014, the matter was listed for an Arbitration Conference/Hearing at 10.00am on 31 March 2014. Upon the allocation of the file to me, I caused correspondence to be forwarded to the respondent noting that no materials had been lodged by the respondent pursuant to the directions and otherwise confirming the matter remained listed in accordance with the amended Notice of Listing.

[3] On the day the matter was listed, there was no appearance by or on behalf of the respondent. Telephone inquiries were made to the respondent, directed to the contact person identified in the initiating process, namely, Craig Adams. Given what then transpired, it was clear Mr Adams was aware of the telephone communications from my Associate concerning the listing that day. This included an emailed message from Mr Adams about 15 minutes after the time listed for the proceedings advising “In a meeting that is going overtime. I can’t speak”. The matter was stood-down the list until 11.00am. In the absence of any further communication by or on behalf of the respondent, despite further endeavours made by my Associate, I then proceeded ex parte.

[4] The respondent did not make any further communication with my chambers on the day of the listing. On 9 April 2014, a solicitor writing on behalf of the respondent raised certain matters concerning Local Court proceedings, but the matters addressed in that letter were not apposite to the application for an unfair dismissal remedy.

[5] In the initiating application, the applicant indicated she had been employed by the respondent from 10 November 2011 until her dismissal on 16 October 2013. At the date of the termination of employment, the applicant was working for the respondent as Portfolio Manager/Accounts Manager, although she had previously occupied different roles.

[6] The applicant’s materials lodged pursuant to the directions dealt with a range of matters, few of which were relevant or directly relevant to her application for an unfair dismissal remedy. The applicant’s materials addressed matters concerning various grievances she had concerning what she perceived as her poor treatment by the respondent during the period of employment. The applicant’s materials also addressed, at some length, matters concerning alleged underpayments and many other employment-related matters involving not just herself but her son (who was also formerly employed by the respondent).

[7] In the proceedings, the applicant clarified she had separately commenced proceedings in the Local Court in relation to alleged underpayments and the like. The applicant further clarified that although she had addressed various matters concerning the alleged underpayments in her application for an unfair dismissal remedy, and had identified the seeking of such alleged entitlements in the papers she had lodged, her application before the Commission concerned the discrete matter of an application for an unfair dismissal remedy.

[8] As I have outlined earlier, the applicant’s materials were somewhat lacking in relevance to the unfair dismissal application in their description of a broad range of employment-related matters. For example, the applicant considered that she had been expected to perform an unreasonable workload. The applicant also had certain (medically certified) health issues in the time preceding the termination of employment.

[9] In distilling matters, the applicant’s contentions in relation to the claim she had been unfairly dismissed turned on an issue that had arisen concerning the taking of leave, over the objection of the respondent, that the applicant’s evidence indicated had already been approved by the respondent. The principal purpose of the leave was for the applicant to holiday with a friend who was terminally ill with lung cancer. In this regard, the friend had previously offered, and the applicant had accepted, the offer of a trip to Cairns with her friend. The friend’s booking could not be cancelled or she would lose the holiday. The applicant’s witness statement, as otherwise elaborated in her oral evidence, indicated the applicant informed Mr Adams she could not cancel her leave because “I could not do that to my terminally ill friend on Thursday as we were leaving on Sunday and she would lose the holiday”. The applicant advised that due to her friend’s ill-health and as the leave was already approved, she would not cancel her leave. Mr Adams responded that he would terminate the applicant’s employment if she took the leave. The applicant nonetheless went on the holiday. Thereafter, there were emailed communications about payment of annual leave and other employment-related matters.

[10] On 16 October 2013, the applicant received an emailed warning for having taken unapproved annual leave and advising that her position was “now redundant” as an outsourcing company would undertake her responsibilities (and there would be discussion about a new job upon her return from leave).

[11] There was evidence of further emailed communications about various matters, but those emails post-dated the advice of termination of employment. On 23 October 2013, the respondent advised the applicant that it would be making all staff redundant “effective immediately” (albeit the respondent had already advised the applicant on 16 October 2013 she was “now redundant”) and the new owners (apparently Mr Adams’ family member/s) will decide whether to re-employ staff. The applicant was subsequently offered a much lower-paid job.

Preliminary matters

[12] The termination of the applicant’s employment occurred on 16 October 2013. As the application was lodged on 31 October 2013, the application was made was made within the period required in s.394(2) of the Act. The applicant was a person protected from unfair dismissal. The respondent was a small business (about seven employees), but nothing in the material before the Commission relevantly raised issues about whether the dismissal was consistent with the Small Business Fair Dismissal Code and I would conclude it was not compliant. As to genuine redundancy, there was no evidence that, for example, the respondent complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy (and in any event, I conclude this was an ordinary dismissal rather than a redundancy).

Valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees)

[13] As I have noted earlier, the respondent has not participated in the proceedings, and thus there is nothing as to any contentions of the respondent in that regard. On what was before the Commission, I would not consider there was a valid reason for the dismissal. That is, the evidence of the coincidence of the applicant proceeding to take the leave that had been approved and her discussions with Mr Adams - coupled with the emailed advice from the respondent while she was on leave warning her about the leave and advising of redundancy - lead me to infer the dismissal was, as the applicant contended, most likely attributable to taking the leave.

[14] The applicant and her terminally-ill friend had travel arrangements to go to Cairns while the applicant was on leave that, I accept, had already been approved. The respondent did not have a valid reason to dismiss the applicant when it unreasonably and on short notice wanted the applicant to cancel the leave and attend work, rather than taking the pre-paid holiday with her friend.

Whether the person was notified of that reason

[15] The reason the respondent gave to the applicant for the termination of employment was that her position was redundant due to outsourcing.

[16] Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[17] The reasons given to the applicant turned on outsourcing, albeit in correspondence which also referred to her taking leave - and, if this was a conduct-related issue, the applicant was not given the opportunity to respond to that matter.

Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal

[18] The applicant was advised by email of the redundancy, while she was on leave; there were no discussions relating to the dismissal (other than, perhaps, the threat that had preceded the taking of leave).

If the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

[19] Once again, the reason given by the respondent concerning the termination of employment turned on outsourcing, but the email of 16 October 2013 advising of that termination of employment on the basis her job is “now redundant” also referred to her alleged breach of employment conditions.

The degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal/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

[20] The respondent had about seven employees (as well as contractors). There was no evidence as to matters concerning the respondent’s access to human resource management expertise and the like.

Allegation of unfair dismissal

[21] I am satisfied the applicant has established a case that her dismissal was harsh, unjust and unreasonable, and that she should have a remedy in her favour. On what was before me, I infer the dismissal of the applicant, purportedly on the basis of outsourcing, stemmed from her proceeding to absent herself from work to have a holiday, in circumstances where it was the respondent which unreasonably revoked or sought to revoke/reverse the previously-approved leave.

Remedy

[22] Reinstatement was not sought as the applicant has found another job. In the circumstances, and in lieu of reinstatement, I am satisfied an order for compensation should be made.

The effect of the order on the viability of the employer’s enterprise

[23] As the respondent did not appear, there was nothing before the Commission as to the effect of any order on the viability of its enterprise.

The length of the person’s service with the employer

[24] The respondent employed the applicant from November 2011 to October 2013.

The remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed

[25] Putting aside the issues about various underpayments and the lack of pay advices, the applicant would, but for the dismissal, have received or would have been likely to receive payment of her ordinarily-expected remuneration.

The efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal

[26] The applicant made efforts to mitigate her loss. She sought and obtained alternative employment within just over three weeks of the dismissal, but now earns about $10,000.00 less than in her former employment with the respondent. The applicant said she had to take that job, even though it paid much less, given her financial commitments.

The amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation/ the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation

[27] In this regard, and as noted earlier, the applicant found alternative employment approximately three weeks after the dismissal and earns about $10,000.00 less than she formerly earned.

Misconduct reduces amount

[28] On what was before me, the applicant did not misconduct herself in proceeding on pre-approved leave to have a pre-arranged holiday with her terminally-ill friend. The respondent acted unreasonably in expecting she should not proceed on that leave. Thus, there is no cause for a reduction in the amount of compensation on the basis of misconduct.

Conclusion

[29] I am satisfied the applicant has established a case for an unfair dismissal remedy of compensation in the amount rounded to $10,000.00, having regard to the applicant’s submissions as to remedy and in circumstances where there was some difficulty in ascertaining the exact weekly wage given the respondent’s failure to provide pay advices.

COMMISSIONER

Appearances:

R. Sipione in person.

No appearance by or on behalf of the respondent.

Hearing details:

2014.

Sydney:

March, 31

Printed by authority of the Commonwealth Government Printer

<Price code C, PR549870>