Ryva Llauder-Caddy v Phillip Arcidiacono T/A Rose Cleaning Service

[2016] FWC 3260

[2016] FWC 3260

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ryva Llauder-Caddy
v
Phillip Arcidiacono T/A Rose Cleaning Service
(U2015/14116)

DEPUTY PRESIDENT KOVACIC CANBERRA, 25 MAY 2016

Application for relief from unfair dismissal – harsh, unjust or unreasonable – jurisdictional objection: the Applicant abandoned her employment – jurisdictional objection dismissed, Applicant was dismissed – dismissal found to be harsh – compensation awarded in lieu of reinstatement.

[1] Mrs Ryva Marie Llauder-Caddy (the Applicant) made an application under s.394 of the Fair Work Act 2009 (the Act) on 6 November 2015 alleging that the termination of her employment by Phillip Arcidiacono T/A Rose Cleaning Services (the Respondent) on 2 November 2015 was unfair.

[2] In its Form F3 – Employer Response to Unfair Dismissal application the Respondent raised a jurisdictional objection contending that the Applicant was not dismissed but that she had abandoned her employment when she was absent from work without approval for the period 15 October to 2 November 2015.

[3] The Fair Work Commission (the Commission) issued Directions on 18 December 2015 requiring the parties to file an outline of submissions and any evidentiary material they intended to rely on regarding the Respondent’s jurisdictional objection and the merits of the application.

[4] The Respondent’s jurisdictional objection and the merits of the application were heard on 2 March 2016. At the hearing, Mr Stefan Russell-Uren of United Voice (UV) appeared for the Applicant, while Mr Daniel Olsen, a Manager with the Respondent, appeared for the Respondent. The Applicant gave evidence on her own behalf, together with Ms Regina Marie Enriquez. Mr Olsen and Mr Phillip Arcidiacono, the Respondent’s proprietor, both gave evidence for the Respondent.

[5] For the reasons set out below, I have found that the Applicant did not abandon her employment but that she was dismissed by the Respondent. Accordingly, the Respondent’s jurisdictional objection is dismissed. I further find that while there was a valid reason for the Applicant’s dismissal, the dismissal was harsh. As to remedy, I do not consider reinstatement appropriate as the Applicant has found alternative employment and order compensation of $512.16 less applicable tax in lieu of reinstatement.

Background

[6] The Applicant commenced employment with the Respondent on 19 September 2013 as a part-time cleaner.

[7] On 14 October 2015 the Applicant approached the Respondent requesting leave to visit her mother who was critically ill and in a coma in the Philippines. It is disputed whether the Applicant referred explicitly to her mother being ill or just indicated that a family member was ill. The Respondent did not approve the leave request for the following reasons:

• the Applicant had exhausted her leave entitlements having only just returned to work from four weeks leave;



• the Applicant could not provide a return date;



• no notice was provided of the request for leave; and



• the timing of the leave did not suit the operational requirements of the business. 1

[8] Despite this, the Applicant proceeded to travel to the Philippines on 15 October 2015.

[9] On 19 October 2015 Mr Arcidiacono wrote to the Applicant in the following terms:

“I refer to your request to take a period of leave following your meeting with your supervisor last Wednesday morning (14/10/15). Specifically, you requested your leave to start from 15/10/2015 and you were unable to advise of a return date.

The reason for this leave was that you needed to go abroad due to a family member’s health issues.

As we are unable to grant this as a period of annual leave due to your leave entitlements being exhausted, as well as the lack of notice given and the uncertainty of the period of leave required, I have to advise you that if you are absent without authorisation during the aforementioned period, including personal leave, this may be viewed as serious misconduct or may be deemed as an abandonment of employment.

Furthermore, when you were advised that this period could not be authorised you advised that you would not be at work the following day, and I note that you have not returned since, which could be considered a period of unauthorised leave.

Under the National Employment Standards (NES) you are entitled to take a period of paid compassionate leave of 2 days per occasion. As such, the period of leave you have already taken has exceeded this and you would not be covered by this provision.

I have attempted to call you to read this letter to you over the phone to ensure you are aware of the consequences prior to deciding to take this period of time off, on unauthorised basis. Unfortunately when your number has been dialled an automated message advised that you are not available.

If you have any questions about this decision please contact me on … Ideally we would like to come to an amicable solution with you given the circumstances as we may be able to authorise a different period of leave or shorter timeframe.” 2

[10] On 22 October 2015 the Applicant sent an email to Mr Russell-Uren stating as follows:

“Good day to you!
Thank you for giving me an update regarding the underpayments.
I am in the Philippines right now. I will be back on The 31st of Oct.
I just want to share to you that when i asked permission From rose cleaning to go on Emergency leave because my mother is very ill and in a coma. They said i could go but they cannot promise that i will still be working at the same site which is southern cross at woden. Daniel said that they will transfer me where there is a vacant position.
I just would like to ask if that is the possible. I really would still like to continue working at southern cross.” 3 (Typographical errors and formatting as per original)

[11] The Applicant returned to Australia from the Philippines on 31 October 2015 and presented at the Respondent’s Fyshwick office on 2 November 2015 when she was advised by Mr Arcidiacono that as the Respondent had not heard from her that it had replaced her with someone else.

[12] At 2.03 pm on 2 November 2015 the Applicant sent an email to Mr Olsen which read:

“Hi Daniel,

Thank you for letting me take time off to see my mother in the Philippines before she passed away. I am ready to work now. I can start today.

My husband wants to know when i [sic] will go back.
I am ready now. Can you say when you will give me work?” 4

[13] Mr Olsen responded at 2.27 pm as follows:

“Hi Ryva,

At the time you applied to take leave, you had only 3 days prior returned from 4 weeks annual leave.

As advised, you had exhausted all of your leave entitlements and I was not able to approve any further leave at that time.

You then told me that you were leaving the next day with no notice and were not sure when you would be back.

I advised you at the time that I would not be able to hold your position, but once you returned I would try to place you in another job when one became available. You were told this again today when you visited the office at approximately 1pm, and unfortunately there are currently no positions vacant.

If a suitable position becomes available in the near future I will let you know.” 5

[14] On 5 November 2015 the Applicant sent an email to Mr Olsen enquiring about payment for the period 12 to 14 October 2015. Mr Olsen responded on 6 November 2015 stating, inter alia, that:

“Please remember that you were not dismissed from work. You approached me on the 14th October requesting leave starting the next day, when I was unable to accommodate this leave you advised me that you would not be at work from the next day (15th October).” 6

[15] The Applicant sent a further email to Mr Olsen following Mr Olsen’s email above asking “If I am not dismissed then do I still work for Rose Cleaning?” 7 Mr Olsen responded to that email as follows:

“Hi Ryva,

You left without giving any notice, or without approval to take leave.

By doing this you abandoned your job, therefore you are no longer employed by Rose Cleaning.

If you wish to re-apply please visit our office to fill out a new application form.” 8

[16] As noted above, the Applicant lodged her unfair dismissal application on 6 November 2015.

The Respondent’s jurisdictional objection

[17] I will deal first with the Respondent’s jurisdictional objection.

The Applicant’s case

[18] The Applicant submitted that she applied for leave and that the Respondent was initially reluctant to grant it but eventually acquiesced, adding that she only booked her flights to the Philippines after speaking with the Respondent. The Applicant also submitted that she was absent for two weeks as she had promised.

[19] At the hearing, the Applicant contended that she was on leave without pay for the duration of her absence and that her actions both before and after the period of leave were consistent with the continuation of the employment relationship and her absence being treated as leave without pay. The Applicant further contended that the Respondent failed to make it clear to her that her employment would be terminated if she left to go to the Philippines. The Applicant did not seek reinstatement as she had secured a better paying job, adding that she sought compensation equivalent to eight weeks’ pay. The Applicant relied on several authorities, including Dunkley v Department of Industry, Innovation, Science, Research and Tertiary Education 9, Sandic v Perroplas Australia Pty Ltd10 and Sharpe v MCG Group Pty Ltd11.

[20] The Applicant provided two witness statements 12 in which she deposed that:

• she spoke to Mr Olsen on 14 October 2015 to request leave to visit her mother who was in a coma in the Philippines, adding that she even requested unpaid leave and asked if she came back “can I keep my job” 13;

when asked by Mr Olsen asked how long she was going to be away for she initially replied that she did not know prompting Mr Olsen to say that he could not keep her job open for that long 14;

she subsequently asked for two weeks leave and indicated that she would be back at the end of the month;

when she asked if she could go Mr Olsen replied that he could not stop her from leaving;

after she left the Respondent’s office she called her niece and asked her to book her airline ticket to the Philippines;

during her absence the Respondent did not try and call her or her husband;

she did not receive any emails or correspondence from the Respondent;

when she attended the Respondent’s office on 2 November 2015 she was told that her position was no longer available because the Respondent could not wait for her; and

at around tax time 2015 she advised her supervisor of her new residential address.

[21] In her second witness statement, the Applicant disputed aspects of Mr Olsen’s and Mr Arcidiacono’s witness statements.

[22] Key aspects of the Applicant’s oral evidence were that:

● when she saw Mr Arcidiacono on 2 November 2015 he did not say that she had been terminated but something along the lines “we gave your” or “we no longer have” or someone has taken your position and that the Respondent would try and give her another job if there was a vacancy 15;

• with regard to the email she sent to Mr Russell-Uren of UV on 22 October 2015, she did not provide that information to the Respondent because she had told Mr Olsen that she would be back on 31 October 2015 16;

Mr Olsen had said to her on 14 October 2015 that if she went he could not guarantee that her position would still be available when she returned 17;

• the Respondent’s letter of 19 October 2015 was sent to her former address, adding that she had moved in February 2015 18;

as to whether Mr Olsen had or had not approved her leave request, she was not sure what Mr Olsen meant when he said “I couldn’t stop you” and that when she sought clarification he made a gesture which suggested he was uncertain 19;

she did not consider contacting the Respondent while she was in the Philippines 20;

• she understood Mr Olsen’s comment on 14 October 2015 that he would try and keep a spot open for her to mean that she would be transferred to a different site 21; and

in terms of previous communications with the Respondent it was limited to text messages with her supervisor 22.

[23] Ms Enriquez deposed in her witness statement 23 that shortly after receiving a text message from the Applicant’s husband at 9.56 am on 14 October 2015 the Applicant called her and said someone would cover for her at work and that when she came back she might need to work at a different site but there was work to come back to. Ms Enriquez further deposed that she booked airline tickets for herself, her husband and the Applicant at 2.07 pm Philippines time (5.07 pm AEDT) on 14 October 2015. Attached to Ms Enriquez’s witness statement was a copy of the receipt for the purchase of the airline tickets24. In her oral evidence Ms Enriquez attested that the Applicant advised her that she would need to return on 31 October 2015 and that she did not book the flights before she paid for them. Ms Enriquez was not cross-examined by the Respondent.

The Respondent’s case

[24] The Respondent submitted that on 14 October 2015 the Applicant attended its office requesting leave commencing the following day, with the reason provided being that the Applicant wanted to visit an ill family member overseas. The Respondent further submitted that the Applicant was unable to provide an indication of the likely period of leave required beyond indicating that it would be more than one week. The Respondent contended that the leave request was denied, with the Applicant indicating that she would be leaving anyway as she had already purchased a plane ticket. The Respondent also contended that the Applicant was informed that leaving without permission may be considered as abandonment of her job and that she may be terminated, adding that it wrote to the Applicant on 19 October 2015 (see paragraph [9] above) and that it did not receive any communication from the Applicant until 2  November 2015. Beyond this, the Respondent submitted that the Applicant had abandoned her position by taking unauthorised leave and not responding to the letter of 19 October 2015 and that at no point in time did the Applicant mentioned that it was her mother who was ill or that she was likely to pass away.

[25] In his witness statement 25 Mr Olsen set out his version of the conversation he had with the Applicant on 14 October 2015 when she requested leave. Key aspects of Mr Olsen’s version of the conversation were that the Applicant advised him that she had purchased an airline ticket to the Philippines and was departing the following morning, that she had not purchased a return ticket as she did not know when she would return, that he indicated to the Applicant that he was not able to approve her leave and that he said “If you go I won’t be able to hold your position for you, however when you get back come in to the office and I will see if I can find you another job, but it won’t be the one you’re leaving” to which the Applicant replied “OK”.

[26] Mr Olsen also deposed that the Applicant failed to show up for her regular shift on 15 October and that she failed to present for work or make contact with him, the office or her supervisor in the following days. Mr Olsen further deposed that all attempted calls to the Applicant were met with an automated message advising that number was not available at this time. Finally, Mr Olsen deposed that he managed to find a temporary replacement for the Applicant’s position in the event that she returned but that after the tenth working day of the Applicant’s absence and not having heard from the Applicant, the temporary employee was offered the position on a permanent basis.

[27] Key aspects of Mr Olsen’s oral evidence were that at the meeting of 14 October 2014:

• he did not recall the Applicant mentioning that it was her mother who was ill nor was there any mention of a funeral;



• he did not tell the Applicant not to go, adding that he was human and would not tell somebody that they cannot go and see a sick family member;



• he did not tell the Applicant that if she left she would be sacked;



• he told the Applicant that he would not be able to hold her position for her but when she returned that he would try and find her another one, adding that he also told the Applicant that if she went it may be an abandonment of employment;



• from time to time the Respondent’s workers do transfer across work sites;



• the Applicant did not give a precise date of return;



• he kept the Applicant’s position open for 10 working days just in case she did return as he was trying to be as compassionate as possible but after she had not returned and he had received no communication from her as to when she was going to return, he filled the position permanently;



• he was certain the Applicant had indicated she was leaving on 15 October 2015; and



• he did not explore alternative approaches, adding that as the Applicant wanted an answer then and there he did not feel that he had time to go and try and find a replacement on short notice.

[28] Beyond this, Mr Olsen attested that:

• he did find a temporary replacement late on the evening of 14 October 2015;



• the whole story as it had subsequently emerged was not put to him at the meeting of 14 October 2015, adding that he could understand that with everything that was going on the Applicant probably did not want to go into a lot of detail;



• if the Applicant had provided a return date or communicated with the Respondent while she was away it would not have been an issue to hold her position open for another 2 days;



• he did not have contact details for the Applicant’s husband; and



• he considered that the Applicant had abandoned her employment.

[29] Mr Arcidiacono in his witness statement 26 deposed, among other things, that on 15 October 2015 he received a call from Mr Olsen outlining the conversation he had with the Applicant the previous day and that she had not presented for work on 15 October 2015. Mr Arcidiacono further deposed that he indicated to Mr Olsen that he would deal with the matter on 19 October 2015 when he returned to work and that he wrote to the Applicant on 19 October regarding her leave request and the consequences of taking unauthorised leave. Mr Arcidiacono also set out in his witness statement his recollection of the conversation he had with the Applicant on 2 November 2015, deposing that he said when she asked for her job back “but you left, you didn’t call or anything so we didn’t think you are coming back. We’ve already given your job to someone else.”

[30] In his oral evidence Mr Arcidiacono attested, inter alia, that his letter to the Applicant of 19 October 2015 was sent to the address on the letter and that when Mr Olsen attempted to contact the Applicant while she was away he would get a message saying the person was not available.

The statutory framework

[31] Section 386 of the Act deal with the meaning of dismissed and provides as follows:

“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.”

[32] The threshold question which arises in this case is whether the Applicant’s employment had been “terminated on the employer’s initiative” as per s.386(1)(a) for the Act. I turn now to consider that issue.

Was the Applicant dismissed?

[33] A Full Bench of the then Australian Industrial Relations Commission considered the meaning of the expression ‘Termination at the initiative of the employer” in Searle v Moly Mines Ltd (Searle) 27. Specifically, the Full Bench said in Searle:

“[20] A Full Bench recently considered the meaning of the expression “termination at the initiative of the employer” in O’Meara v Stanley Works Pty Ltd. For our purposes it is sufficient to refer to the following passage in which, having referred to the authorities, the Commission said:

“[23] In our view the full statement of reasons in Mohazab [(1995) 62 IR 200] which we have set out together with the further explanation by Moore J in Rheinberger [(1966) 67 IR 154] and the decisions of Full Benches of this Commission in Pawel [Print S5904, 12 May 2000 per Polites SDP, Watson SDP and Gay C] and ABB Engineering [Print N6999, 9 December 1996 per Munro J, Duncan DP and Merriman C] require that there to be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. It is not simply a question of whether “the act of the employer [resulted] directly or consequentially in the termination of the employment.” [Mohazab at page 205.] Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution as they may not give full weight to the decision in Mohazab. In determining whether a termination was at the initiative of the employer an objective analysis of the employer’s conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign.” (Underlining added)

[34] It is not disputed that at the meeting of 14 October 2015 Mr Olsen indicated that he was not sure that if the Applicant went overseas he would be able to keep her position open. Beyond this, an analysis of the material before the Commission indicates that:

• the Applicant did not contact the Respondent after she left the meeting of 14 October 2015 until 2 November 2015 when she presented at the Respondent’s office;



• the Applicant did however contact Mr Russell-Uren of UV by email on 22 October 2015;



• the Respondent wrote to the Applicant on 19 October 2015;



• that letter was sent to the same address as shown on the Applicant’s unfair dismissal application, which is different to the address cited in the Applicant’s witness statements;



• the Respondent kept the Applicant’s position open for 10 working days just in case she did return to work but in the absence of any communication from the Applicant decided to fill her position permanently; and



• Mr Olsen did not try and stop the Applicant from going.

[35] Drawing on the language in Searle, I consider that the Respondent’s actions in stating that it was not sure that if the Applicant went overseas that it would be able to keep her position open it and its decision to subsequently fill the Applicant’s position permanently constituted actions which were either intended to bring the employment to an end or had the result of bringing the employment relationship to an end. This supports a finding that the Applicant was terminated at the Respondent’s initiative as opposed to a finding that she abandoned her employment. The Respondent’s jurisdictional objection is therefore dismissed.

[36] Accordingly, the Commission now needs to consider the merits of the application.

The merits of the application

[37] The Commission exercises its discretion in relation to an application for an unfair dismissal remedy pursuant to Part 3-2 of the Act. In this case there is no contest that the Applicant is a person who was protected from unfair dismissal pursuant to s.382 of the Act. In the context of this matter, the relevant provisions of the Act are ss. 385 and 387 which provide as follows:

“385 What is an unfair dismissal

A person has been unfairly dismissed if 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.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.

387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, 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 FWC considers relevant.”

[38] There is no dispute that the Applicant was dismissed, so s.385(a) of the Act is satisfied. The Applicant contended that her termination was harsh, unjust or unreasonable, so s.385(b) is relevant. The Respondent is not a small business employer, therefore s.385(c) is not relevant. The termination was not a case of redundancy, so s.385(d) does not apply. Therefore, in determining whether the Applicant was unfairly dismissed, I must consider whether the dismissal was harsh, unjust or unreasonable as per s.385(b).

Was the dismissal harsh, unjust or unreasonable?

[39] In considering whether a dismissal was harsh, unjust or unreasonable, the Act requires the Commission to have regard to the criteria set out in s.387. I will now address these criteria.

(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)

[21] In Rode v Burwood Mitsubishi 28 (Rode) a Full Bench of the then Australian Industrial Relations Commission (AIRC) canvassed the meaning of valid reason in the context of the relevant provisions of the Workplace Relations Act 1996 citing Selvachandran v Peteron Plastics Pty Ltd29. The following is an extract from the Full Bench’s decision in Rode.

“[17] In relation to the meaning of “valid reason” the following remarks of Northrop J in Selvachandran v Peteron Plastics Pty Ltd are relevant:

“Section 170DE(1) refers to a ‘valid reason, or valid reasons’, but the Act does not give a meaning to those phrases or the adjective ‘valid’. A reference to dictionaries shows that the word ‘valid’ has a number of different meanings depending on the context in which it is used. In The Shorter Oxford Dictionary, the relevant meaning given is: ‘2. Of an argument, assertion, objection, etc; well founded and applicable, sound, defensible: Effective, having some force, pertinency, or value.’ In The Macquarie Dictionary the relevant meaning is ‘sound, just or wellfounded; a valid reason’.

In its context in s 170DE(1), the adjective ‘valid’ should be given the meaning of sound, defensible or wellfounded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘be applied in a practical, commonsense way to ensure that’ the employer and employee are each treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd, when considering the construction and application of a s 170DC.”

[18] While Selvachandran was decided under the former statutory scheme the above observations remain relevant in the context of s.170CG(3)(a). A valid reason is one which is sound, defensible or well founded. A reason for termination which is capricious, fanciful, spiteful or prejudiced is not a valid reason for the purpose of s.170CG(3)(a).

[19] We agree with the appellant’s submission that in order to constitute a valid reason within the meaning of s.170CG(3)(a) the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts. It is not sufficient for an employer to simply show that he or she acted in the belief that the termination was for a valid reason.”

[40] The Applicant submitted, inter alia, that the Respondent had acquiesced to her request for leave and that there was no valid reason for her subsequent dismissal. In the alternative, the Applicant contended that if there was a valid reason for her dismissal that her termination was grossly disproportionate in the circumstances.

[41] The Respondent maintained that the Applicant had abandoned her employment.

[42] A number of aspects of the conversation between the Applicant and Mr Olsen on 14 October 2015 are disputed. While the Applicant formed the view that Mr Olsen had relented and allowed her to go to the Philippines, Mr Olsen’s evidence was that he advised the Applicant that he could not approve her leave request but that he did not tell her not to go. On this issue I prefer the evidence of Mr Olsen. Another area of dispute concerns whether the Applicant advised Mr Olsen that she would return at the end of the month. While the Applicant is adamant that she did, the Respondent’s actions in trying to call the Applicant and writing to her on 19 October 2015 suggest that any return date was not clear to the Respondent. Further, while I understand why the Applicant contacted Mr Russell-Uren of UV while she was in the Philippines, I find it particularly surprising that she did not as a matter of courtesy inform the Respondent of developments, either directly or via her husband. The Applicant’s failure to contact the Respondent during her absence is even more surprising when regard is had to what might be described as the difficult conversation she had with Mr Olsen on 14 October 2015.

[43] Taken together, the above considerations support a finding that there was a valid reason for the Applicant’s dismissal. Further, drawing on the language in Rode, I am satisfied that the Applicant’s termination was not “capricious, fanciful, spiteful or prejudiced.”

[44] As an aside, I would observe that had both the Applicant and Mr Olsen taken some time to consider what might be possible in the circumstances and/or to allow Mr Olsen to explore whether he could secure a temporary replacement for the Applicant and, if so, for what period, subsequent events may have been avoided.

(b) Whether the person was notified of that reason

[45] The Applicant submitted that she was not advised in writing, in advance or otherwise that she had lost her job until she returned to work as per her arrangement with the Respondent.

[46] The Respondent did not directly address this factor in its submissions.

[47] While it is not disputed that Mr Olsen had advised the Applicant that he could not keep her job open if she went overseas, it is apparent that the Applicant learnt that she did not have a job on 2 November 2015 when Mr Arcidiacono said to her “but you left, you didn’t call or anything so we didn’t think you are coming back. We’ve already given your job to someone else.”

[48] This supports a finding that the Applicant was informed of the reason for her dismissal. This weighs against a finding that her dismissal was harsh, unjust or unreasonable.

(c) Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[49] Neither party directly addressed this factor in their submissions.

[50] While the Respondent’s letter of 19 October 2015 was intended to provide the Applicant with an opportunity to explain her absence from work, the Applicant attested that the correspondence had been sent to her former address. The address on that letter is identical to the address cited in the application but differs from that cited in her witness statements and to which she attested at the hearing. Against that background, I accept the Applicant’s evidence that she did not receive that letter. Beyond that there does not appear to have been any formal opportunity for the Applicant to respond prior to her job being offered to someone else. I note however that it would have been open to the Applicant at any time after 14 October 2015 and before 2 November 2015 to contact the Respondent and provide an update as to her circumstances/intentions.

[51] The above analysis supports a finding that the Applicant was not given an opportunity to respond to any reason related to her conduct in being absent from work without authorisation.

(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

[52] The Applicant submitted thatshe was denied the opportunity to have a support person present, adding that the Respondent knew the Applicant was a member of UV and may wish to have a union representative present.

[53] The Respondent did not address this consideration in its submissions.

[54] The Applicant met with the Respondent on 14 October 2015 when she requested leave to travel overseas and on 2 November 2015 when she presented at the Respondent’s office inquiring as to when she could return to work. Given that the Applicant wrote to Mr Russell-Uren of UV on 22 October 2015 while she was overseas, it would be reasonable to assume that had she wished to have a support person present with her on 2 November 2015 that she would have contacted Mr Russell-Uren inquiring as to whether he or someone else from the union could attend with her on that day. However, there is no material before the Commission indicating that she do so. Further, there is no material before the Commission indicating that the Applicant at any stage requested that a support person attend.

[55] Against that background, I consider this factor to be a neutral consideration.

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

[56] The Applicant was not dismissed as a result of her performance. Accordingly, this factor is not a relevant consideration.

(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

(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

[57] Neither party made any submissions regarding these factors. Accordingly, I consider them to be neutral considerations.

(h) Any other matters that FWC considers relevant

[58] As noted above, the Applicant contended that were the Commission to find that there was a valid reason for her dismissal that termination was grossly disproportionate in the circumstances.

[59] The leading statement of principle regarding the meaning of the expression “harsh, unjust or unreasonable” is the statement in the judgment of McHugh and Gummow JJ in Byrne v Australian Airlines Ltd 30:

“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.” (Underlining added)

[60] Mr Olsen attested, among other things, that he did find a temporary replacement late on the evening of 14 October 2015 and that had the Applicant provided a return date or communicated with the Respondent while she was away it would not have been an issue to hold her position open for another two days. In circumstances where Mr Olsen secured a temporary replacement on the evening of 14 October 2015, it is not clear why he did not try and contact the Applicant on the morning of 15 October 2015 to advise her of this and to discuss what, if any, arrangement might be acceptable to both parties. Further, as acknowledged in the Respondent’s letter of 19 October 2015, the Applicant was entitled to two days compassionate leave under the NES. I note also that the Applicant did attend work on 14 October 2015, despite learning the night before of her mother’s illness, and sought approval to take time off. Many employees would have simply rung their employer and said I’m not going to be in for the next few days because my mother is dying (or something to that effect). While it is easy to say that the Applicant could have been clearer as to her circumstances at the meeting of 14 October 2015, the lack of clarity is not surprising given that she was, according to Mr Olsen, distraught.

[61] The above analysis points to the Respondent’s decision to dismiss the Applicant being disproportionate in the circumstances.

Finding

[62] Drawing on the above analysis, I find that there was a valid reason for the Applicant’s dismissal, that the Applicant was notified of the reason but was not given an opportunity to respond, and that the Respondent’s decision to dismiss the Applicant was disproportionate in the circumstances. I further find that the remaining considerations in s.387 are either not relevant or are neutral considerations in this matter.

[63] Against that background, and despite there being valid reason for her dismissal, I find the Applicant’s dismissal harsh. As such, I now need to consider the issue of remedy.

Remedy

[64] As noted at paragraph [19] above, the Applicant did not seek reinstatement as she had secured a better paying job. Given that the Applicant has secured alternative employment, I am satisfied that reinstatement would not be appropriate.

[65] Section 390 of the Act deals with when the Commission may order a remedy for unfair dismissal and provides at ss.390(3):

“(3) The FWC must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and

(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.

[66] The criteria relevant to the deciding of the amount of compensation are set out in s.392(2) of the Act.

Remuneration that would have been received (s.392(2)(c))

[67] The Applicant attested that she commenced work in a new job on 4 January 2016 31. As the Applicant was unavailable for work until 2 November 2015 due to her absence overseas, the period of compensation is therefore eight weeks, i.e. 2 November 2015 to 3 January 2016. For the fortnightly pay period ending 8 September 2015, i.e. the pay period prior to the Applicant proceeding on authorised annual leave, the Applicant received a net pay of $1,027.8032. Over an eight week period, the Applicant therefore would have earned $4,111.20.

Remuneration earned (s.392(2)(e))

[68] The Applicant had a casual job as a Room Attendant at the Kurrajong Hotel prior to her dismissal with that job continuing at least until she commenced her new job on 4 January 2016. Pay slips provided by the Applicant in respect of that job indicate that she earned a total of $3,086.88 over the period 2 November 2015 to 4 January 2016 33.

Income reasonably likely to be earned (s.392(2)(f))

[69] As the Applicant commenced in a new job on 4 January 2016, I consider that no deduction on this ground is warranted.

Other matters (s.392(2)(g))

[70] There are no other matters that I consider relevant.

Viability (s.392(2)(a))

[71] There is no material before the Commission indicating that the proposed order would affect the viability of the Respondent’s enterprise. More specifically, I note that at the hearing the Applicant sought eight weeks’ pay as compensation if the Commission found that her dismissal was unfair. While the Respondent contended that no compensation was warranted as the Applicant had not been dismissed, it did not submit that the amount of compensation proposed by the Applicant would affect its financial viability.

Length of service (s.392(2)(b))

[72] The Applicant was employed by the Respondent for a period of just over two years. I do not consider that this relatively short period of service provides a basis for reducing the proposed amount of compensation.

Mitigation efforts (s.392(2)(d))

[73] As the Applicant has secured alternative employment, I consider that no deduction on this ground is warranted.

Misconduct (s.392(3))

[74] I consider the Applicant’s conduct in being absent and, more particularly, failing to contact the Respondent while she was absent to have been the sole factors leading to the Respondent’s decision to terminate her employment. The circumstances in this case bring to mind the adage “two wrongs don’t make a right.” As a result of the Applicant’s conduct in this case, I propose to reduce the amount of compensation by half.

Compensation cap (s.392(5))

[75] The proposed amount of compensation of $512.16 (i.e. $4,111.20 less $3,086.88, with the resulting amount reduced by half) less applicable tax is less than the compensation cap for the Applicant as per s.392(5) of the Act.

Conclusion

[76] For the reasons outlined above, I find that the Applicant did not abandon her employment but that she was dismissed by the Respondent. Accordingly, the Respondent’s jurisdictional objection is dismissed. I further find that while there was a valid reason for the Applicant’s dismissal, the dismissal was harsh. As to remedy, I do not consider reinstatement appropriate as the Applicant has found alternative employment and order compensation of $512.16 less applicable tax in lieu of reinstatement. An order to that effect will be issued in conjunction with this decision.

Appearances:

S. Russell-Uren for R.M. Llauder-Caddy.

D. Olsen for Phillip Arcidiacono T/A Rose Cleaning Services.

Hearing details:

2016.

Canberra:

March 2.

 1   Form F3 – Employer Response to Unfair Dismissal Application at Item 2.2

 2   Exhibit O2 at Attachment A

 3   Exhibit RU3

 4   Exhibit O1 at Attachment A

 5   Ibid

 6   Ibid at Attachment B

 7   Ibid at Attachment C

 8   Ibid

 9   [2012] FWA 10220

 10   [2010] FWA 8682

 11   [2010] FWA 2357

 12   Exhibits RU1 and RU2

 13   Exhibit RU1 at paragraph 16

 14   Ibid.

 15   Transcript at PN108

 16   Ibid at PN109

 17   Ibid at PN113 and PN131

 18   Ibid at PN123-128

 19   Ibid at PN129-130

 20   Ibid at PN139

 21   Ibid at PN145

 22   Ibid at PN146-149

 23   Exhibit RU7

 24   Ibid at Attachment B

 25   Exhibit O1

 26   Exhibit O2

 27 (2008) 174 IR 21

 28   Print R4471

 29 (1995) 62 IR 371

 30 (1995) 185 CLR 410 at p 465-6.

 31   Transcript at PN85-87

 32   Exhibit RU6

 33   Exhibit RU1 at Attachment D and Exhibit RU5

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