Sandra Seaton v The Ironsides Family Trust
[2023] FWC 2850
•30 OCTOBER 2023
| [2023] FWC 2850 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Sandra Seaton
v
The Ironsides Family Trust
(U2023/6402)
| DEPUTY PRESIDENT DOBSON | BRISBANE, 30 OCTOBER 2023 |
Application for an unfair dismissal remedy
On 14 July 2023, Ms Sandra Seaton (Applicant) made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW ACT) for a remedy, alleging that she had been unfairly dismissed from her employment with The Ironsides Family Trust trading as Chris Couper and Associates International Realtors (Respondent). The Applicant seeks financial compensation.
The matter was listed for conciliation with a staff conciliator on Monday 21 August 2023 however was unable to be resolved.
On 29 August 2023, the file was allocated to me. On 31 August 2023, my Chambers emailed the parties directions and listed the matter for a case management conference for Thursday 7 September 2023. The matter was listed for a determinative conference/hearing (jurisdiction and Merits) on Wednesday 25 October 2023.
The afternoon before the determinative conference/hearing, the Respondent wrote to my chambers seeking an adjournment on the basis he was travelling overseas, and he did not have access to a device capable of attending via Microsoft Teams and he did not have access to the relevant documentation. I directed the Respondent to provide evidence of the late adjournment request and reminded the Respondent that the matter had been listed since 31 August 2023. On the morning of the determinative conference/hearing, the Respondent provided and evidence that he had booked travel to Auckland on 18 July 2023. He provided no explanation for failing to notify of the Commission of this travel despite the matter being listed on 31 August 2023. I note the Respondent also appeared at a case management conference before me on 7 September 2023 and did not raise any concerns about the hearing date at that time. My chambers wrote back to the Respondent letting him know that I was not satisfied on the basis of the material provided that there was a sufficient reason provided to adjourn the matter and the Respondent was advised he could attend by telephone. Chambers also contacted the Respondent’s secretary and advised her of the requirement for the Respondent to attend and that he could do so by telephone. Chambers subsequently made a number of attempts to dial the Respondent in at the start of the hearing. We waited 30 minutes for the Respondent to contact us and at the same time made further attempts to join the Respondent to the hearing.
At the start of the determinative conference/hearing I noted that whilst the Commission was often guided by the rules of evidence it was no bound to do so and I enquired whether the Applicant would object to the material previously filed by the Respondent in this matter being admitted into evidence. The Applicant confirmed she had no objection to that course of action. I provided the Applicant with an opportunity to object to parts of the evidence and she indicated she had no objection. Given all of the circumstances and the fact that the parties were self-represented I determined to continue with the hearing. The Applicant did object to some of the material filed by the Respondent as the matter progressed and I allowed, took note and considered all of those objections and applied the appropriate weight to them in light of all of the circumstances.
When can the Commission order a remedy for unfair dismissal?
Section 390 of the FW Act provides that the Commission may order a remedy if:
(a) the Commission is satisfied that the Applicant was protected from unfair dismissal at the time of being dismissed; and
(b) the Applicant has been unfairly dismissed.
Both limbs must be satisfied. I am therefore required to consider whether the Applicant was protected from unfair dismissal at the time of being dismissed and, if I am satisfied that the Applicant was so protected, whether the Applicant has been unfairly dismissed.
When is a person protected from unfair dismissal?
Section 382 of the FW Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:
(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.
When has a person been unfairly dismissed?
Section 385 of the FW Act provides that a person has been unfairly dismissed if the Commission 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.
Background
The uncontested factual background to the matter is as follows:
· Ms Seaton commenced employment with the Respondent on Monday 10 May 2021 as an Assistant Property Manager at Chris Couper and Associates and was dismissed on 23 June 2023. The Applicant was notified of the dismissal on 23 June 2023.
· The reason given by the Respondent for the termination of the Applicant’s employment was that the Respondent had decided to retire from his Property Management business and had decided to sell it.
The hearing
There being contested facts involved, the Commission is obliged by s.397 of the FW Act to conduct a conference or hold a hearing. After taking into account the views of the Applicant and whether a hearing would be the most effective and efficient way to resolve the matter, I considered it appropriate to hold a determinative conference for the matter (s.399 of the FW Act).
Permission to appear
The Applicant was self-represented, and the Respondent had failed to appear.
Witnesses
The Applicant gave evidence on her own behalf.
Submissions
The Respondent filed submissions in the Commission on 7 September 2023. The Applicant filed submissions on 14 September 2023, with the Respondent material in reply filed by the Respondent on 21 September 2023.
The Respondent did not comply with the directions in failing to file material regarding the merits of the case by 29 September 2023. On 4 October 2023, Chambers wrote to the party highlighting that the Respondent had not filed anything further. The Respondent did not reply to this email.
Outline of Submissions from the Applicant
The Applicant filed her statement of evidence on 13 September 2023.
The Applicant started working for the Respondent’s business Chris Couper & associates on 10 May 2021 as an Assistant Property Manager. The Applicant was initially employed a causal basis working 16 hours per week. In November 2021, the Applicant underwent a double knee replacement and returned to work on light duties from 17 December 2021.
On 24 January 2022, the Applicant states that she was classed as a full-time employee and was the only licenced property manager, with the previous manager made redundant.
The Applicant states that the week of 28 January 2022 her hours increased to 39 hours per week at the rate of $26.40 per hour until the end of June 2022. The Applicant annexes payslips to her evidence which supplement her statement asserting that the hours worked are incorrectly presented on the payslips.
On 5 January 2023 the Applicant noticed that her annual leave starting to accrue for the first time since her employment commenced with the Respondent.
The Applicant notes that her wage remained stable until she had no other option but to claim Workers’ compensation on 23 May 2023. The Applicant asserts that the Respondent did not have a policy in place. During a conversation with Mr Couper the Applicant was informed that she didn’t need to make a claim as the respondent would look after her as he didn’t have a policy in place.
The Applicant requested three weeks annual leave plus loading to be paid. This request was fulfilled on 13 June 2023. The Applicant annexes a payslip which provides that she is owed 26.3595 hours in leave and loading which she states has not been paid out.
The Applicant alleges that there are multiple payslips that have been changed, deleted, duplicated and adjusted. The Applicant also alleges that payslips were not issues to her in accordance with Section 536 of the FW Act which provides that Payslips must be issues within one working day of being paid.
The Applicant was notified on 23 June 2023, whilst she was on working compensation that her services were no longer required as the sale of the rent roll had become unconditional.
In response to the Respondent’s Small Business Fair Dismissal Code, the Applicant rejects the Respondent’s grounds for dismissal due to a business downturn or that their position is no longer needed. The Applicant states that the business did not have a downturn until after the rent roll settled on 1 August 2023.
In supporting this assertion, the Applicant annexes a letter addressed to a tenant on 27 July 2023 stating that a new agent would be taking over effective 2 August 2023. The Applicant also annexes a letter dated 26 June 2023 addressed to the landlords notifying them that the management of their property would be transferred to Scarness Holdings Pty Ltd on 1 August 2023.
The Applicant annexes flyers that relate to properties available for rent during this time up to and including 15 August 2023. At this point, the Applicant’s name was still advertised on the flyers as the property manager until 1 August 2023.
In filing the above evidence, the Applicant states that her position at the agency was still available, despite her termination on a redundancy basis. The Applicant maintains that as she is a qualified and registered salesperson and property manager, she could have transitioned over to sales once the rent roll was sold and the company is still operational.
The Applicant rejects the argument in a letter dated 7 September 2023 from the Respondent that:
“At the time she was given notice, we found that she had set up a company in April 2023 whilst she was employed by us) in opposition to us with the aim of soliciting our properties”.
The Applicant denies this allegation stating that the company was set up in anticipation of purchasing the Respondent’s rent roll. This did not occur as a sale price was not offered to the Applicant.
After Mr Couper returned from annual leave on 9 March 2023, the Applicant notes that the tension in the office was insufferable and that this led to a relationship breakdown between her and Mr Couper. The Applicant notes that Mr Couper refused to answer any questions from her and made himself scarce when she was in the office. The Applicant believes this to be due to her workers compensation claim.
In concluding her statement, the Applicant submits that her dismissal should not be considered as a genuine redundancy as the position she held at the Respondent’ company was still available until the settlement date of the rent roll being the 01 August 2023. The Applicant also insists that the National Employment Standards were not adhered to as she was not provided with written notice of her termination whilst on workers compensation.
The Applicant is therefore seeking a financial remedy of leave entitlement being the total sum of $13,835.16. In addition to this, the Applicant is also requesting that the amount of $1930.63 be paid into her superannuation.
Outline of Submissions from the Respondent
The Respondent relies on its filing of form F3 in the Commission on 28 July 2023. On 7 September 2023, the Respondent filed a statement and supporting annexures, which was the only material filed in relation to the directions.
The Respondent submits that the Applicant was dismissed as a result of the rent roll selling, and that when it the sale became unconditional, the role no longer existed. At the time, the Applicant was on workers’ compensation and would not be returning to work until after 26 July 2023.
At the time the Applicant was given notice, the Respondent had discovered that she had set up a company in April 2023 whilst she was employed by the Respondent.
The Respondent annexes an extract from the Australian Securities and Investments Commission which identified the Business name as “Home in the Bay” and the Holder name identified as “S G Seaton Realty Pty Ltd”. The Respondent alleges that this was done by the Applicant to be in opposition of the Respondent with the aim of soliciting properties.
The Respondent, in replying to the Applicant’s claim that she had not been paid her termination pay is because the Respondent was advised by his lawyer not to pay the Applicant due to the multiple breaches of the employment agreement and the egal action that we are taking against that. The Respondent annexes a letter from his solicitor dated 07 July 2023 to support his statement. The Respondent also annexes a statement of claim filed in the Magistrates Court of Queensland on 29 August 2023 against the Applicant for breach of contract and claims relief in the order of $92,887.32 with interest and $1629 of costs of issuing the claim and this statement of claim.
In filing the Small Business Fair Dismissal code, the Respondent asserts that the Applicant was dismissed because the Respondent no longer required the Applicant’s job to be done by anyone because of changes in the operational requirements of the business.
The Respondent refuses the Applicant’s official start date as a full-time employee. The Applicant states that she progressed to full time employment on 24 January 2023. The Respondent denies this and states that the Applicant was made full time when her pay increased on 29 July 2023.
Has the Applicant been dismissed?
A threshold issue to determine is whether the Applicant has been dismissed from their employment.
Section 386(1) of the FW Act provides that the Applicant has been dismissed if:
(a) the Applicant’s employment with the Respondent has been terminated on the Respondent’s initiative; or
(b) the Applicant has resigned from their employment but was forced to do so because of conduct, or a course of conduct, engaged in by the Respondent.
Section 386(2) of the FW Act sets out circumstances where an employee has not been dismissed, none of which are presently relevant.
There was no dispute and I find that the Applicant’s employment with the Respondent terminated at the initiative of the Respondent.
I am therefore satisfied that the Applicant has been dismissed within the meaning of s.385 of the FW Act.
Initial matters
Under section 396 of the FW Act, the Commission is obliged to decide the following matters before considering the merits of the application:
(a) whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;
(d) whether the dismissal was a case of genuine redundancy
Was the application made within the period required?
Section 394(2) requires an application to be made within 21 days after the dismissal took effect.
It is not disputed, and I find that the Applicant was dismissed from her employment on 23 June 2023 and made the application on 14 July 2023. I am therefore satisfied that the application was made within the period required in subsection 394(2).
Was the Applicant protected from unfair dismissal at the time of dismissal?
I have set out above when a person is protected from unfair dismissal.
Minimum employment period
It was not in dispute, and I find that the Respondent is a small business employer, having fewer than 15 employees at the relevant time.
It is not in dispute that the Applicant commenced employment with the Respondent on 9 May 2021. Whilst the date the Applicant moved from casual to full time employment was in dispute, it was not in dispute that the Applicant became a full-time employee on 29 July 2022.[1] The period in dispute is the period from 23 June 2022 to 29 July 2022 being the 12 months required under the Act.[2]
The Applicant provided evidence of pay slips[3] as follows:
27/12/21 - 2/1/22 24.1816 hours
3/1/22 - 9/1/22 28.2318 hours10/1/22 - 16/1/22 28.2118 hours
17/1/22 - 23/1/22 39.1316 hours
GAP
31/1/22 - 9/2/22 39.1316 hours
GAP
14/2/22 - 20/2/22 32.7156 hours
21/2/22 - 27/2/22 32.7156 hours
28/2/22 - 6/3/22 32.7156 hours
7/3/22 - 13/3/22 32.7156 hours
GAP
21/3/22 - 27/3/22 32.7156 hours
28/3/22 - 3/4/22 32.7156 hours
4/4/22 - 10/4/22 42.9789 hours
11/4/22 - 17/4/22 30.3950 hours
18/4/22 - 24/4/22 51.4750 hours
GAP
20/6/22 - 26/6/22 51.4750 hours
27/6/22 - 3/7/22 53.4335 hours
4/7/22 - 10/7/22 51.7560 hours
11/7/22 - 17/7/22 51.7560 hours
18/7/22 - 24/7/22 42.1921 hours
25/7/22 - 31/7/22 51.0853 hours (Emphasis Added)
The Respondent provided pay slips as follows:[4]
20/6/22 - 26/6/22 38 hours
27/6/22 - 3/7/22 38 hours
4/7/22 - 8/7/22 38 hours
11/7/22 - 17/7/22 38 hours
18/7/22 - 22/7/22 38 hours
25/7/22 - 31/7/22 38 hours (Emphasis Added)
Whilst I am unable to account for the difference in hours on the payslips, it is clear to me on the evidence that the Applicant was engaged on at least a full-time basis for the period in dispute between 23 June 2022 and 29 July 2022. I therefore find that the Applicant was an employee, who commenced their employment with the Respondent on at least 20 June 2022 and was dismissed on 23 June 23, a period in excess of 12 months.
I am therefore satisfied that, at the time of dismissal, the Applicant was an employee who had completed a period of employment with the Respondent of at least the minimum employment period.
Award Coverage
It was not in dispute, and I find that, at the time of dismissal, the Applicant was covered by an award, being the Real Estate Industry Award 2020.
I am therefore satisfied that, at the time of dismissal, the Applicant was a person protected from unfair dismissal.
Was the dismissal consistent with the Small Business Fair Dismissal Code?
Section 388 of the FW Act provides that a person’s dismissal was consistent with the Small Business Fair Dismissal Code if:
(a) immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person’s employer was a small business employer; and
(b) the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal.
As mentioned above, I find that the Respondent was a small business employer within the meaning of s.23 of the FW Act at the relevant time, having fewer than 15 employees (including casual employees employed on a regular and systematic basis).
It is therefore necessary to consider whether the Respondent complied with the Small Business Fair Dismissal Code in relation to the dismissal.
Did the Respondent comply with the Small Business Fair Dismissal Code in relation to the dismissal?
Was the dismissal a case of genuine redundancy?
Under s.389 of the FW Act, a person’s dismissal was a case of genuine redundancy if:
(a) the employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and
(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.
In turning to the first limb, the Applicant’s case is that the Respondent did require the job to continue to be performed between the date of her termination on 23 June 2023 and 1 August 2023. The Applicant provided evidence of correspondence sent from the Respondent to one of its clients on the rent roll that the property management would be taken over by Scarness Holdings Pty Ltd on 2 August 2023.[5] The Applicant submitted at hearing that the Respondent had continued to management the rent roll between those days and suggested that the Respondent is unlikely to have done the work himself and that his secretary was not licensed to perform the work. The Applicant agreed that there was no evidence before the Commission that the Respondent had engaged anyone else to perform the work during this time, The Respondent submitted that he and his secretary performed the work during this time. On the basis of the evidence before me I find that the Respondent did not employ any other person to perform the work and that instead he absorbed the work between himself and his secretary.
In turning to the second limb, the relevant clause of the Real Estate Industry Award 2020 is:
26. Consultation about major workplace change
26.1 If an employer makes a definite decision to make major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer must:
(a) give notice of the changes to all employees who may be affected by them and their representatives (if any); and
(b) discuss with affected employees and their representatives (if any):
(i) the introduction of the changes; and
(ii) their likely effect on employees; and
(iii) measures to avoid or reduce the adverse effects of the changes on employees; and
(c)commence discussions as soon as practicable after a definite decision has been made.
26.2 For the purposes of the discussion under clause 26.1(b), the employer must give in writing to the affected employees and their representatives (if any) all relevant information about the changes including:
(a) their nature; and
(b) their expected effect on employees; and
(c) any other matters likely to affect employees.
26.3 Clause 26.2does not require an employer to disclose any confidential information if its disclosure would be contrary to the employer’s interests.
26.4 The employer must promptly consider any matters raised by the employees or their representatives about the changes in the course of the discussion under clause 26.1(b).
26.5 In clause 26 significant effects, on employees, includes any of the following:
(a) termination of employment; or
(b) major changes in the composition, operation or size of the employer’s workforce or in the skills required; or
(c) loss of, or reduction in, job or promotion opportunities; or
(d) loss of, or reduction in, job tenure; or
(e) alteration of hours of work; or
(f) the need for employees to be retrained or transferred to other work or locations; or
(g) job restructuring.
26.6 Where this award makes provision for alteration of any of the matters defined at clause 26.5, such alteration is taken not to have significant effect.
The Applicant’s case is she was not consulted in respect of the redundancy. She acknowledged that the Respondent had told her of his intention to sell the Property Management part of his business and that he had offered it to her for sale. She gave evidence that he gave her a month to consider it and insisted that she make an offer. She gave evidence that she wanted to see the financial data on the business before she would be willing to put a figure on an offer and that this financial data was not forthcoming from the Respondent. It was uncontested that she created a company S G SEATON REALTY PTY LTD trading as Home in the Bay on 27 April 2023 and the Applicant submitted that this was in anticipation of buying the business from the Respondent. The Applicant submitted that the Respondent was still undertaking his property sales business but conceded that the property management business had been sold. The Applicant submitted that she was not offered any other positions with the Respondent and that it was open to him to offer her a sales role at any time. She acknowledged that there was no evidence before the Commission that any position had been advertised as vacant nor that anyone had been hired to perform a sales role at around the time of her termination.
The Respondent’s case in his submissions, was that he consulted with the Applicant and let her know that he intended to retire from the Property Management part of the business. He submitted that the Applicant had been given an opportunity to buy the business that he gave her a deadline to submit an offer and she failed to do so. On that basis, he sold the business to another buyer. The Respondent submitted that he had offered a reference to the Applicant and had asked her if she was interested in a role with the new buyer, but that Applicant declined. The Applicant contested these submissions. I note that the Respondent was a small business of just 2 employees and that he did not have dedicated human resources expertise, but he had been in business for a significant period of time.
In respect of whether the Respondent offered the Applicant redeployment to any available positions in the business, I find that there is no evidence before the Commission that there was a job vacancy notwithstanding the Applicant’s contentions that the Respondent could have given her a sales position at any time because it would not cost him anything given the role is Commission only. I note that the relevant Award requires the payment of a minimum weekly wage[6] and therefore I reject the assertion that there would be no cost to the Respondent. I further find there was no evidence before the Commission that anyone was hired into such a role. I find that there was no suitable alternative role available to offer the Applicant.
On the basis of the evidence before me, I find that the Respondent, complied with its obligations, under the Real Estate Industry Award to consult with the Applicant, albeit not perfectly. The requirement to consult existed, the Respondent certainly gave notice of the change and its likely impact and discussed measures to avoid or reduce the impact by selling the business to the Applicant. Whilst this did not come to fruition this is not indicative that measures were not taken to avoid or reduce the impact of the decision, rather there are often breakdowns in the sale of property including businesses, such that I find the fact the sale did not progress is unremarkable.
The Respondent’s evidence is that he offered a reference to the Applicant and that he asked the Applicant if she was interested in a job with the new buyer which the Applicant contests. Even if I were to find the Respondent did not make these two offers, I am sufficiently satisfied that the Respondent substantially met the requirements of this limb to the required level reasonably expected of a small business.
I am therefore satisfied that the dismissal was a case of genuine redundancy.
Conclusion
Accordingly, I am satisfied based on the evidence provided that the Respondent was a small business, and that the dismissal was a case of genuine redundancy. This means that the Applicant is unable to bring an application for an Unfair Dismissal Remedy.
I therefore order that the Applicant’s application be dismissed.
DEPUTY PRESIDENT
Appearances:
Ms Sandra Seaton
Hearing details:
Brisbane, 25 October 2023.
[1] Digital Court Book p.79.
[2] Fair Work Act 2009 (Cth) s.383.
[3] Digital Court Book pp.23-56.
[4] Digital Court Book pp.124-129.
[5] Digital Court Book pp.7, 11-13.
[6] Real Estate Industry Award 2020, cl16.
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