Sarah Singh v Priceline Sutherland Pty Ltd
[2023] FWC 1321
•15 JUNE 2023
| [2023] FWC 1321 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Sarah Singh
v
Priceline Sutherland Pty Ltd
(U2023/1055)
| DEPUTY PRESIDENT BOYCE | SYDNEY, 15 JUNE 2023 |
Application for an unfair dismissal remedy – Applicant made request for unpaid domestic violence leave for three weeks in January 2023 due to her inability to find care for her nine year old son post a domestic violence incident involving her former husband – Respondent dismissed Applicant citing issues as to performance, conduct and absenteeism – Respondent’s decision-maker did not give evidence in the proceedings, but attended the in-person hearing and sat at the bar table – inferences drawn - no valid reason for dismissal – reason for dismissal based upon Applicant’s request for unpaid domestic violence leave - no opportunity to respond – no procedural fairness – dismissal harsh, unjust and unreasonable – compensation awarded.
Introduction
Ms Sarah Singh (Applicant) has filed a Form F2 application (Application) for an unfair dismissal remedy with the Fair Work Commission (Commission) alleging that she was unfairly dismissed (within the meaning of s.385 of the Fair Work Act 2009 (Act)) by her former employer, Priceline Sutherland Pty Ltd (Respondent).
By way of its Form F3 Employer Response, the Respondent says that the Applicant was dismissed for genuine performance and conduct reasons, and otherwise denies that the Applicant was unfairly dismissed.
At the hearing, the Applicant appeared for herself, and Ms Melissa Cahill, Retail Store Manager, appeared for the Respondent.
Evidence and submissions
The Applicant relies upon her:
(a)Statement dated 24 March 2023;[1]
(b)Submissions in Reply dated 19 April 2023;
(c)Statement in Reply dated 19 April 2023;[2] and
(d)Closing Submissions dated 26 May 2023.
The Respondent relies upon the:
(a)Witness Statement of Melissa Cahill comprising evidence and submissions, undated;
(b)Statutory Declaration of Kyle Tan dated 20 April 2023;[3]
(c)Statutory Declaration of Parul (no last name) dated 11 April 2023;[4] and
(d)Closing Submissions dated 15 May 2023.
Factual findings
Based upon the evidence relied upon by both parties at the hearing, I make the findings of fact set out in the paragraphs that follow.
The Applicant was employed by the Respondent at its Priceline Sutherland retail outlet or store from 7 March 2022 to the date of her dismissal on 9 January 2023 as a Senior Pharmacy Assistant on a permanent fulltime basis.[5] From around 1 November 2023 the Respondent unilaterally reduced the Applicant’s ordinary hours of work per week from 38 to 30 on the basis of what the Respondent considered to be the Applicant’s poor performance and behaviour during October 2023.[6] There is no evidence of any ability at law for the Respondent to reduce the Applicant’s hours in this way or for these reasons, and nor is there any evidence that the Applicant agreed to her hours being reduced.
Ms Melissa Cahill is the Store Manager (responsible for hiring employees, rostering, setting up shop, ordering stock, allocating staff tasks, and generally running operations). Parul (no last name) is the Back Pharmacy Manager, and second in-charge of the store after Ms Cahill. Mr Ackram Kalache is the Store Owner. Ms Cahill states that Mr Kalache is an involved Store Owner, is informed of everything that goes on in the business by the management team, and visits the store regularly.[7] The Applicant had minimal direct interactions with Mr Kalache during her employment with the Respondent.[8]
On 14 November 2022 the Applicant was issued with an official warning in relation to a verbal altercation (involving swearing) that she had had with another staff member (Filitsa) in front of customers on 27 October 2022.[9]
The Applicant is separated from her former husband, and they have one son (nine years old) together. The Applicant is the primary carer for her son and has full custody of him. The Applicant’s husband from time to time cares for (or minds) their son, usually to enable the Applicant to attend work. During her employment with the Respondent, the Applicant experienced various instances of domestic violence involving her former husband. This involved threats, and physical, verbal and emotional abuse towards her son and herself.[10]
On 29 December 2022, the Applicant’s son, after being dropped off from care by her former husband, advised the Applicant that he did not wish to stay again with his father. The Applicant advised Ms Cahill that she would be unable to attend work for a few days as she had no one to care for her son at short notice, and was concerned for the safety of herself and her son given recent interactions between her son and his father (her former husband).[11] The Applicant sent the following text message to Ms Cahill on 29 December 2022 (7:53pm):
“Hun I won’t be able to work tomorrow. For the safety of [my son] and me I need him to be with me 24/7 at this time. [My husband] has his family here from India he is refusing to hand over my sons passport and I cannot risk anything happening to my son. [My husband] has been verbally abusive. I’ve always maintained peace with him to stop the abuse but unfortunately now that I have stood my ground it has started again. I am not risking anything for my son. Please if ok to give me until next week back my friend Sharon will be back to Sydney she can look after [my son] while I work. She is the only on [my son] feels safe with until I let my sisters know what is happening xxx”.[12]
Ms Cahill gave the following evidence as to the Applicant’s request for leave:
“On Thursday the 29th of December at 7.53PM I received a text message from Sarah. Sarah knew I was not at work and in hospital. As I had had surgery that day I did not see or reply to it until 7.13AM on Friday the 30th of December 2022. This was when I first realised the situation with her Son and his care was not as Sarah had told me. Sarah asked for time off so her friend Sharon could come and look after her Son. Even though I was in hospital and it was not my place to do so I granted her emergency domestic violence leave. This was fully paid for at the expense of the company. At this stage I knew things in the store were very strained and I thought it was the best thing for everyone if Sarah had time off to take care of her family. I was concerned about how Sarah would react to the team if the time off was not approved. This left the store short staffed during a busy period in Pharmacy and also meant the bullying accusations against Sarah could not be addressed.”[13]
Upon returning to work on 4 January 2023, the Applicant had to leave work early (at 10:30am) as her former husband had just dropped her son at her home and her son was now at home alone and had advised the Applicant that he was unwell. When she returned home, the Applicant noticed that her son had bruises on his face. He advised the Applicant that “Dad attacked me”. The Applicant immediately called the Police, and ended up attending upon Sutherland Police Station that evening to provide a statement. Her son was interviewed alone by the Police. Post providing statements to the Police, the Applicant was advised by the Police that her husband would be arrested. The Applicant was extremely concerned about the trauma that had been visited upon her son that day, including having to attend the Police Station and give a statement to Police without her present.[14]
The events leading to the Applicant’s dismissal are set out in her witness statement, adopted under oath at the hearing, as follows:
“The Dismissal
35.On Friday 5 January 2023 I sent a SMS to Parul, the in-store manager, apologising for leaving early and letting her know that I would need time off until 27 January 2023 to look after my son until school went back. I also sent an SMS to Melissa [Ms Cahill] to keep her in the loop. A copy of my message to Parul is attached and marked “E”. A copy of my message to Melissa is marked “F”.
36.Neither Melissa nor Parul responded to my SMS.
37.Later that day on 5 January 2023 Parul accidently sent me a text message meant for Melissa, asking Melissa what to do about my leave application. A copy of this message is attached and marked “G”.
38.I was starting to get worried. It was after 5pm, and I had not heard from either Melissa or Parul. At 5:40pm I sent an SMS to Melissa. A copy of that message is attached and marked “H”. I also sent a message to Parul asking if I had a job. A copy of that message is attached and marked “I”.
39.At 7:20pm on 5 January 2023 I received a long text message from Melissa telling me that she could not approve leave when she wasn’t there and that I should call the store to get Ackram’s number so I could ask him about the leave. A copy of this message and my response is attached and marked “J”.
40.On 5 January 2023 I sent an SMS to Parul asking for Ackram’s number. Parul did not respond.
41.On Sunday 8 January 2023 I finally found Ackram’s number in an old picture of emergency contacts on my phone. I did not want to message him that night outside of work hours.
42.On 9 January 2023, I sent Ackram a long message explaining my situation and asking for time off until my son went back to school. A copy of this message is attached and marked “K”.
43.That afternoon on 9 January 2023, Ackram called me and we had a conversation that included words to the following effect:
Ackram:Why do you need time off?
Applicant:I wrote it to you all in a text.
Ackram:Unfortunately, Sarah, we can no longer have you working here anymore. I should have fired you after the last incident.
Applicant:That’s bullshit. That has got nothing to do with my leave request. That was done and dusted.
Ackram:I am sorry for your grievance. Is there any feedback you want to give me.
Applicant:Your management process and communication are not good.
Ackram:Mel [Ms Cahill] is in hospital.
44.I rang up Ackram to ask for leave as I was instructed to do by Melissa. I had no idea I was going to be dismissed on the spot. Ackram did not tell me any reason as to why he was dismissing me other than referring to the incident with Filitsa which I have talked about above [that occurred in October 2022].
45.On 9 January 2023, I sent an SMS to Ackram asking him to put the reasons why I was fired in a letter. He responded by SMS saying he would get management to write up a letter. A copy of this text message exchange is attached and marked “L”.
46.I did not receive a letter from Priceline regarding its termination of my employment.”[15]
The following text exchanges between the Applicant and Ms Cahill, and the Applicant and Parul, on 5 and 6 January 2023 were tendered into evidence by Ms Cahill on behalf of the Respondent:
Applicant: Hi Mel how are you doing? I texted Parul this morning because I had to
leave work yesterday as there was a situation with [my son] and his dad yesterday. To be Honest I can't work until he goes back to school on the 27th. I have to put [my son’s] safety first and he has gone through so much . His dad has basically disowned him for telling me the truth. I need to be by his side until he goes back to school. And the mental and verbal abuse from his dad has once again shot my confidence he has put the blame on me for his wrong doing. am sorry. I was so excited to be back at work yesterday. But I can see his dad is trying to sabotage me from working so I have no independence. I know I can work properly when [my son] is safe at school and after school care xx.Applicant: So I have not heard back from you or Parul. So I guess I don't have a job to go back to. There is absolutely nothing I can do in this situation I am a single mum with no family here to look after my son so I can work with al so dealing with an abusive ex husband. Ms Cahill: Hi Sarah. As I have said many times I am currently not at work.
Your request is not something I can approve when I’m not there. My understanding was that [your son] was in vacation are or with your friend as per your previous messages.
From my understanding you haven’t been at work in your full capacity since before Xmas. I can’t just approve leave when I’m not aware of what has been going on in the store or how it will impact the roster. Parul is also not able to approve such a long period of leave with no notice.
Please be respectful of the fact that we cannot always immediately respond to your text messages.
This is my personal phone number and quite honestly I didn’t really appreciate the tone of the message you sent me.
If you need your leave approved immediately please feel free to contact Ackram. You can call the store in the morning and get his numberApplicant: Goodmorning Parul sorry I had to leave yesterday I was so excited to
be back at work . Because of the school holidays and the issues I am
having with [my son’s] dad I won't be able to work until [my son] goes back to school on the 27th is that ok. I'll let Mel know to. XxApplicant: Parul can you or Mel please let know if I still have my job to come back to when [my son] goes back to school x
Applicant: Hi Parul my apologies for the way my message came across to you and Mel yesterday. I was not asking for paid l eave but to be able to take care of [my son] until school is back. I know you don't have authority to do that and I have given so much short notice. Mel mentioned for me to talk to Akram are you able to please pass on my number to him to call me. I should have not put you in.[16]
Ms Cahill gave the following evidence as to the period 5 January 2023 to 9 January 2023 in relation to her interactions with the Applicant or knowledge of the Applicant’s circumstances:
“39. On Thursday the 5th of January I received another 2 text messages from Sarah. I was very surprised to have her contact me about another issue knowing I was not at work. I did not imagine that Sarah would still be relying on her Ex husband to look after her Son after all she had told me.
A period of leave without notice as long as Sarah was requesting knowing how she had been behaving at work was too much for me to consider.
By this stage and knowing what was going on with the team when Sarah was at work, I did not feel like I was in a position to make any further decisions. I sympathised with Sarah’s situation but felt she was not being upfront with me about what the real situation was at work.
Sarahs behaviour was having such a negative impact on the team when she came to work and Sarah did not stay at work long enough for any of the managers to address her over them.
This was now really affecting the Store and I was in no condition or authority to be making decisions on behalf of the business.
I felt under extreme pressure to respond to her so as I asked her not to contact me again as I was not in a position to help her any further.
I referred Sarah to Ackram as he was being updated daily about the situation by Kyle and he was aware of the issues the store was having with Sarahs behaviour in my absence. Document K attached40. On Friday the 6th of January 2023 I received a text message from Parul asking me not to be further involved with the situation with Sarah from Ackram’s request. Sarah had not turned up to work and had continued to take unapproved leave. I was getting very stressed out dealing with the situation so I was very relieved with this decision.
41. On Monday the 9th of January I returned to work after 3 weeks off. Ackram called in the afternoon to catch up with me and to check how I was feeling. It was during this conversation that he informed me of Sarahs termination.
42. Ackram asked me to write up a letter of termination with the reasons for him to sign to issue to Sarah via email. I completed this and the email was sent to Sarah on Thursday the 12th of January at 11:30am.[17]
The text message that the Applicant sent to Mr Kalache on 9 January 2023, reads:
“Hi Ackram it's Sarah from Priceline at Sutherland how are you? I just needed to text you to let you know what is going on. I have had to the time off work until my son starts back at school on the 27th
My son usually stays with his dad on the holidays so I can’t work but there has been alot of issues with him and it all came to a head last week and his dad was arrested we have a DVO on him so he can’t come near us. I had to keep leaving work because his dad kept dropping hm off because my son did not want to be around him. I wanted to have my son in vacation care but because I don't drive I could not get him there and to be at work on time, Please if ok I need my son to be with me until he goes back to school and I can work I love this job so much and I don't want to lose it. I assure you I will put in 100 once school is back and I won't have the burden of his dad affecting my work anymore. Kindly Sarah. If you need to speak to me you can call anytime”[18]
The Applicant was not cross-examined on her account of her conversation with Mr Kalache on 9 January 2023 (see conversation extracted at paragraph [14] of this decision). I note that despite attending the hearing, and sitting next to Ms Cahill at the bar table during Ms Cahill’s cross-examination of the Applicant, and whispering to Ms Cahill questions to ask the Applicant, Mr Kalache did not file any witness statement evidence, and nor did he give any oral evidence at the hearing. It follows that the termination conversation on 9 January 2023 between Mr Kalache and the Applicant is wholly uncontested.
Given Ms Cahill’s evidence that Mr Kalache is informed of everything that goes on in the business by the management team,[19] I infer that Mr Kalache was aware or otherwise informed of the text message exchanges between the Applicant and Ms Cahill and Parul (see texts set out at paragraph [15] of this decision) prior to the termination conversation between himself and the Applicant on 9 January 2023.
The Termination Letter (referred to as Document L in Ms Cahill’s Statement) was signed by Mr Kalache and dated 10 January 2023 (but emailed to the Applicant on 12 January 2023 by Ms Cahill with the cover words “wishing you all the best for the future”). It reads:
“Sarah Singh commenced employment with Priceline Pharmacy Sutherland on 8th March 2022 and concluded employment 9th January 2023.
During the period of employment Sarah had the following documents regarding her
performance on her employment file.·Friday 2nd September- Performance Discussion with Melissa moving her from the Pharmacy under Parul's management to Front of store under Melissa's management. Reasoning due to Sarah being disrespectful to Parul as a new Manager and not following Parul's direction. Sarah had complaints from other Pharmacy team members due to her constant talking about other team members in a negative way and criticising their work standards.
·Friday 7th October- Document of Discussion with Melissa and Kyle regarding a complaint from a new team member from FOS of Bullying. Sarah spoke loudly and rudely on the shop floor and allegedly swore at the team member. She openly criticised the team member to others and in front of customers. Sarah re-signed the Staff behaviour policy but denied the behaviour. She was warned that the next incident would res ult in a formal warning.
·Thursday 27th Oct-Monday 14th November- Melissa and Kyle issued her first warning due to multiple breeches of the Staff Behaviour policy with CCTV evidence and many witnesses. The most serious issue was her swearing in the Dispensary in front of customers and team members. The others were her consistent lack of respect to management and constantly going out of her scope of work to give direction and feedback to team members. Sarah was given 2 weeks off to look after her mental health as it was affecting her work performance.
·Friday the 23rd of December-Wednesday 28th December Sarah had further complaints from the Pharmacy team regarding her behaviour, language and her inappropriate treatment of new team members. Sarah also had a formal complaint lodged against her to Kyle regarding her bullying and harassment of a new FOS team member. Sarah was to be issued a 2nd warning when Melissa returned from leave.
·Thursday the 29th of December- Sarah was given 1 week of approved emergency leave to take care of her Son until further ca re arrangements could be made due to a sensitive family matter.
·Thursday the 5th of January - Sarah requested leave until the 27th of January which due to the needs of the business was not approved. Sarah did not return to work taking the leave without approval and again going outside company policy and procedures. A 3rd warning would be issued for this as well.
Sarah's behaviour was not in line with a professional Pharmacy business and it was consistently (despite multiple interventions from management to address these issues) having a negative impact on the stores team morale. These issues combined resulted in Sarah's termination of employment.”[20]
I note that the Applicant’s evidence is that she did not receive the Termination Letter (or email) until it was filed in these proceedings.
Relevant law regarding unfair dismissal
Section 385 of the Act qualifies a claim for unfair dismissal:
“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.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388”.
The parties are not in dispute as to the following:
(a)The unfair dismissal application was made within the period required by s.394(2) of the Act.[21]
(b)The Applicant is a person protected from unfair dismissal within the meaning of s.382 of the Act.
(c)The Applicant was “dismissed” by the Respondent within the meaning of s.386 of the Act.
(d)The Small Business Fair Dismissal Code (as provided for in s.388 of the Act) does not apply.
(e)The Applicant’s dismissal was not a case of genuine redundancy within the meaning of s.389 of the Act.
I accept and make findings consistent with the foregoing position of the parties.
Whether the Applicant’s dismissal was harsh, unjust, and/or unreasonable
Section 387 of the Act provides what matters must be taken into account in determining whether a dismissal was harsh, unjust or unreasonable.
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a)whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b)whether the person was notified of that reason; and
(c)whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d)any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e)if the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f)the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g)the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h)any other matters that the FWC considers relevant”.
The terms “harsh”, unjust” and “unreasonable” are to be given their ordinary meaning.
s.387(a) — Whether there was a valid reason for the Applicant’s dismissal which is related to her capacity or conduct
An employer bears the persuasive onus of establishing that there was a valid reason for an employee’s dismissal.[22]
In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”, and should not be “capricious, fanciful, spiteful or prejudiced”.[23] Further, 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.[24]
Where the dismissal relates to conduct, the reason for dismissal may be valid because the conduct occurred and justified dismissal. However, the reason may not be valid because the conduct did not occur, or it did occur but did not justify dismissal.[25] 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.[26] The onus of proof in relation to misconduct rests with an employer, and the standard of proof is based upon the balance of probabilities (the more serious an allegation, the higher the burden upon an employer to prove that allegation).[27]
Where a dismissal relates to capacity (i.e. where the reason is associated or connected with the ability of the employee to do the job),[28] and there is a dispute as to an employee’s requisite capacity, it is for the Commission to resolve that dispute as a matter of fact.[29]
Having regard to the text message exchanges between the Applicant and Ms Cahill, and the Applicant and Parul, on 5 and 6 January 2023, the text message sent by the Applicant to Mr Kalache on 9 January 2023, and the uncontested evidence of the Applicant as to her termination conversation with Mr Kalache on 9 January 2023, I find that the Applicant was dismissed by the Respondent because she ‘requested’ time off (in the form of unpaid domestic violence and/or carer’s leave) until 27 January 2023 to enable her to care for her son until he started back at school and could be placed in after-school care. Such leave request was made by the Applicant in circumstances where she had been struggling to deal with (or juggle) the care of her nine year old son (of whom she has sole custody as a single mother) in the context of recent (and potentially on-going) domestic violence events. Instead of consulting with the Applicant as to her request for leave, and refusing or granting the request, or coming to some other arrangement, Mr Kalache dismissed the Applicant. I find that the reason for the Applicant’s dismissal (because she requested leave to deal with the impacts of domestic violence and provide care for her nine year old son) is not sound, defensible or well-founded (i.e. it is not a valid reason for the Applicant’s dismissal). This weighs strongly in favour of a finding that the Applicant’s dismissal was harsh, unjust, and unreasonable (i.e. unfair).
Mr Kalache, as decision-maker in Applicant’s dismissal, gave no evidence in these proceedings despite being able to do so (i.e. he was present at the hearing providing instructions as to the Respondent’s case to Ms Cahill). I infer that Mr Kalache’s failure to give evidence in these proceedings occurred because his evidence would not have assisted the Respondent’s case.[30]
To the extent that the Respondent asserts that the Termination Letter dated 10 January 2023 (set out at paragraph [20] of this decision) reflects the reasons for the Applicant dismissal, I reject the Respondent’s purported reliance upon such reasons. The matters referred to in the Termination Letter were not discussed in the termination discussion between the Applicant and Mr Kalache on 9 January 2023 (beyond the cursory). Indeed, in my view, the matters set out in the Termination Letter are no more than an attempt by Mr Kalache to reframe or otherwise justify the reasons for the Applicant’s dismissal after it occurred. Even if it might be said that the reasons for the Applicant’s dismissal included the matters set out in the Termination Letter, the actual or operative reason for her dismissal (on the evidence) concerns her request for time off (unpaid domestic violence and/or carer’s leave) until 27 January 2023 to enable her to care for her son until he started back at school and could be placed in after-school care. Again, this weighs strongly in favour of a finding that the Applicant’s dismissal was harsh, unjust, and unreasonable (i.e. unfair).
s.387(b) - Whether the Applicant was notified of the valid reason; and s.387(c) - Whether the Applicant was given an opportunity to respond to any reason related to her capacity or conduct
Proper consideration of s.387(b) of the Act requires a finding to be made as to whether the Applicant “was notified of that reason” and given an opportunity to respond to same.
Contextually, the reference to “that reason” is the valid reason found to exist under s.387(a) of the Act.[31] 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, and in explicit, plain and clear terms.[32]
In order to be given an opportunity to respond for the purposes of s.387(c), the employee must be made aware of allegations concerning the employee’s conduct so as to enable them to respond to the allegations and must be given an opportunity to defend themselves. As Justice Moore has stated in Wadey v YMCA Canberra[33]:
“the opportunity to defend, implies an opportunity that might result in the employer deciding not to terminate the employment if the defence is of substance. An employer may simply go through the motions of giving the employee an opportunity to deal with allegations concerning conduct when, in substance, a firm decision to terminate had already been made which would be adhered to irrespective of anything the employee might say in his or her defence. That… does not constitute an opportunity to defend.”[34]
[26] An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment. The opportunity to respond does not require formality and the factor is to be applied in a common-sense way to ensure the employee is treated fairly. 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 the concern, this is enough to satisfy the requirements.[35]
The reason for the Applicant’s dismissal was not a valid reason, and such a reason was not notified to her, prior to or at the time of her dismissal. The Applicant was given no genuine opportunity to respond to any ‘specific’ capacity or conduct issue relied upon by the Respondent to justify her dismissal. Both of the criteria under ss.387(b) and (c) thus weigh in favour of a finding that the Applicant’s dismissal was harsh, unjust and unreasonable (i.e. unfair).
s.387(d) — Whether there was any unreasonable refusal by the Respondent to allow the Applicant to have a support person present to assist at any discussions relating to dismissal
As noted by a Full Bench of this Commission, “[t]he subsection is not concerned with whether or not the employee was informed that he or she could have a support person present”.[36]
There were no relevant submissions made by either party regarding s.387(d) of the Act. I therefore consider this criterion as a neutral consideration in determining whether the Applicant’s dismissal was harsh, unjust or unreasonable.
s.387(e) — Whether the Applicant was warned about that unsatisfactory performance before her dismissal
A warning for the purposes of s.387(e) of the Act must clearly identify:
· the areas of deficiency in the employee’s performance;
· the assistance or training that might be provided;
· the standards required; and
· a reasonable timeframe within which the employee is required to meet such standards.[37]
In addition, the warning must “make it clear that the employee’s employment is at risk unless the performance issue identified is addressed.”[38] In order to constitute a warning for the purposes of s.387(e), it is not sufficient for the employer merely to exhort their employee to improve their performance.[39]
As I have found that the reason for the Applicant’s dismissal did not relate to her unsatisfactory performance, but related to her request for unpaid leave in circumstances of domestic violence and caring responsibilities, I treat the criteria under s.387(e) of the Act as a neutral consideration.
The degree to which the size of the Respondent’s enterprise would be likely to impact on the procedures followed in effecting the dismissal (s.387(f)); and 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 (s.387(g))
The Respondent employs some 26 employees. There is no evidence to suggest that the size of the Respondent’s enterprise likely impacted upon the procedures it followed in effecting the Applicant’s dismissal.
The absence of a dedicated human resource management specialist does not relieve an employer of extending an appropriate degree of courtesy to its employees “even when implementing something as difficult and unpleasant as the termination of a person’s employment”.[40]
Neither party put forward substantive or relevant submissions that go directly to either of the criterion under ss.387(f) and (g) of the Act. I therefore treat both of these criterion as neutral considerations in this case.
s.387(h) - Any other matters that the Commission considers relevant
Procedural fairness is one factor that the Commission may take into consideration under s.387(h) of the Act when deciding if a dismissal has been harsh, unjust or unreasonable. It concerns the decision-making process followed or steps taken by a decision maker, rather than the actual decision itself.[41] Ordinarily, procedural fairness requires that an allegation be put to a person and that they be given an opportunity to answer it before a decision is made.[42] Further, although s.387(d) of the Act does not require an employer to inform an employee that they may have a support person present, that matter may be relevant in all the circumstances and taken into account under s.387(h).[43] There was a total absence of procedural fairness in effecting the Applicant’s dismissal. This weighs in favour of a finding that the Applicant’s dismissal was harsh, unjust and unreasonable (i.e. unfair).
The Respondent has gone to significant lengths in these proceedings to justify the Applicant’s dismissal on the basis that the Applicant was an unreliable employee who had multiple and repeated performance and conduct issues throughout her period of employment with the Respondent. Such matters included the Applicant regularly failing to complete her rostered shifts, failing to work out the whole of her weekly roster, taking excessive leave (including at short notice), receiving poor performance reviews and a first warning, breaching her employment contract, breaching the Respondent’s policies and procedures, engaging in poor workplace behaviours, bullying or harassing other staff members, being overly critical of other staff, speaking rudely to other staff (including in the presence of customers), failing to follow directions, and not getting on with or having altercations and conflicts with other staff members (especially new staff members).[44] To the extent that there might be said to be at least some substance to some of these assertions, and it might be acknowledged that the Respondent’s frustrations were reaching boiling point in late December 2022 and early January 2023 regarding same, I do not accept that in the circumstances of this case, such matters weight against a finding that the Applicant’s dismissal was harsh, unjust or unreasonable.[45] I therefore treat them as neutral considerations.
Was the Applicant’s dismissal unfair?
I have made findings in relation to each of the criterion specified under s.387 of the Act (as relevant). I have also considered and given due weight to each of the criterion as a fundamental element in determining whether the Applicant’s dismissal was harsh, unjust or unreasonable.[46]
In relation to the criterion set out under s.387 of the Act, I have found that:
(a) various criterion weigh in favour of a finding that the Applicant’s dismissal was harsh, unjust and unreasonable; and
(b) other relevant criterion are neutral considerations.
In view of the findings and conclusions set out in this decision, I find that the Applicant’s dismissal was unfair.
Remedy
Being satisfied that the Applicant:
· made an application for an order granting a remedy under s.394 of the Act;
· 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 the payment of compensation to the Applicant.
Under s.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?
The Applicant does not seek reinstatement but seeks compensation. Having regard to the Applicant’s view, I consider that reinstatement is inappropriate. I will now consider whether a payment for compensation is appropriate in all the circumstances.
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 whether to order a remedy in a case where a dismissal has been found to be unfair remains a discretionary one…”.[47]
Given that I have found that the Applicant was unfairly dismissed, and having specific regard to the reason for her dismissal, as well as noting that the Applicant remains unemployed (despite having now been able to place her son in after-school care), I consider that an order for payment of compensation in this case is appropriate.
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 (s.392(2)(a))
There was no evidence before me of the effect on the viability of the Respondents’ business of an award of compensation. I consequently find that an order for compensation is unlikely to have an effect on the viability of the Respondent or its business.
Length of the Applicant’s service (s.392(2)(b))
The Applicant, at the time of her dismissal, was employed by the Respondent for a period of around 10 months. I consider that the Applicant’s length of service is a neutral consideration in terms of any amount of compensation to be awarded.
Remuneration that the Applicant would have received, or would have been likely to receive, if the Applicant had not been dismissed (s.392(2)(c))
As stated by a majority of the Full Court of the Federal Court, “in 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.”[48]
The Applicant’s uncontested evidence is that she would have stayed in the Respondent’s employ for a period of at least 12 months if she had not been dismissed. I accept that the Applicant had no immediate intention to leave the Respondent’s employ. However, there is evidence of performance and conduct issues involving the Applicant that would suggest that her employment was potentially at risk. But these matters also need to be weighed against the domestic violence circumstances confronting the Applicant (and impacting upon her work and work attendance) in December 2022 and January 2023, including her inability to arrange on short notice care for her nine year old son for the month of January 2023 (during the school holiday period). In the circumstances, I am unwilling to conclude that the Applicant’s employment would have continued on with the Respondent for 12 months. It is more likely in my view that the Applicant’s employment would have continued for no more than 6 months.
Turning to the remuneration that the Applicant would have earned had her employment continued for a further 6 months, her uncontested evidence as to her pre-dismissal earnings are that she was working a four day week (part-time, 30 hours per week) prior to her dismissal (excluding Saturdays). The Applicant says that after her son could be placed in after school care upon his return to school (at the end of January 2023), and given that she was employed on a fulltime basis (and had not consented to vary that fulltime employment, despite the Respondent unilaterally reducing her from five to four days’ work per week), she would have returned to work five days per week (excluding Saturdays) (i.e. 38 hour per week). The Applicant’s ordinary rate of pay per hour at the time of her dismissal was $23.92. I accept that the Applicant would have returned to a five day working week (excluding Saturdays) on a fulltime (38 hours per week) basis post her son being placed in after school care after the end of January 2023. Multiplying the Applicant’s hourly rate by 38 hours per week comes to a weekly rate of pay (excluding Saturdays) of $908.96 (i.e. $23.92 x 38).
Six months (or 26 weeks) post the Applicant’s dismissal (on 9 January 2023) is 9 July 2023. Excluding the three week period between 9 January and 27 January 2023 (when the Applicant would have been on unpaid leave to care for her son prior to him returning to school and after-school care), gives a period of 23 weeks. Multiplying the Applicant’s weekly rate of $908.96 per week by 23 weeks comes to a gross figure of $20,906.08.
Having regard to the above, I am satisfied that but for her dismissal, the Applicant would have likely remained in the Respondent’s employment for a further 6 months. Had she done so, I find that she would have received $20,906.08 plus 10.5 percent superannuation for that 6 month period.
Efforts of the Applicant to mitigate the loss suffered by the Applicant because of the dismissal (s.392(2)(d))
An applicant must provide evidence that he or she has taken reasonable steps to minimise the impact of his or her dismissal.[49] What is reasonable depends on the circumstances of the case.[50] I am satisfied on the evidence that the Applicant has made reasonable efforts to mitigate her loss in the wake of her dismissal, [51] and that no discount to the amount of $20,906.08 (as a result of a failure by her to mitigate her loss) ought be applied.
Income earned by the Applicant following her dismissal (s.392(2)(e))
The Applicant did not receive payment in lieu of notice on termination, and has earned no other income since her termination. Consequently, no discount is to be applied to the proposed amount of compensation.
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 (s.392(2)(f))
I am satisfied that the Applicant is unlikely to earn income between the making of an order for compensation and the payment of that compensation. Consequently, I make no deduction in respect of likely earnings in that period.
Any other relevant matter (s.392(2)(g))
No other relevant matters were raised by the Applicant or the Respondent going to an order for compensation, nor am I aware of any.
Misconduct (s.392(3))
In determining the amount by which it is appropriate to reduce an order for compensation on account of misconduct, the Commission must consider, amongst other things, whether the Applicant engaged in misconduct and, if so, whether that misconduct contributed to the Respondent’s decision to dismiss the person. A Full Bench of this Commission has observed that, “[t]he section seems to require such consideration even if the FWC has found there was no valid reason for the person’s dismissal.”[52] However, the Full Bench goes on to say that, “if there was no valid reason for the dismissal we think that may be relevant to the FWC’s decision as to the ‘appropriate’ amount by which to reduce the amount of compensation the FWC would otherwise order.”[53]
I have found that the Applicant’s dismissal on 9 January 2023 was not for a valid reason. I have also accepted that there was some misconduct on the part of the Applicant during her employment with the Respondent. However, I am not satisfied on the evidence that there is a direct connection between such misconduct and the Applicant’s dismissal on 9 January 2022.
All in all, I am satisfied, on the evidence before me, that the Applicant did engage in misconduct during her employment with the Respondent, and more relevantly, engaged in misconduct that contributed to the Respondent’s decision to dismiss her. I have thus decided to reduce the amount of compensation to be awarded to the Applicant by five percent, leaving a figure of $19,860.78 ($20,906.08 – 5 percent ($1,045.30)).
Instalments (s.393)
The Respondent did not apply to pay any award of compensation by instalments. No order will be made to that effect.
Shock, Distress (s.392(4))
I note that the amount of compensation calculated does not include a component for shock, humiliation or distress.
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 FW 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).[54] This approach was articulated in the context of the Act in Bowden v Ottrey Homes Cobram and District Retirement Villages.”[55]
The approach in Sprigg is as follows:
Step 1: Estimate the remuneration the Applicant would have received, or have been likely to have received, if the Respondent employer had not terminated the employment (remuneration lost).
Step 2: Deduct monies earned since termination.
Step 3: Discount the remaining amount for contingencies.
Step 4: Calculate the impact of taxation to ensure that the employee receives the actual amount he or she would have received if they had continued in their employment.
Step 1
I have estimated the remuneration the Applicant would have received, or would have been likely to have received, if the Respondent had not terminated her employment to be $20,884 on the basis of my finding that it is likely the Applicant would have remained in employment for a further period of six months. This estimate of how long the Applicant would have remained in employment is the “anticipated period of employment”.[56] I have deducted five percent from this amount under s.392(3) (misconduct), leaving a gross figure of $19,860.78.
Step 2
I have found that the Applicant has not earned any amount of remuneration since the date of her dismissal, and that she is unlikely to earn any remuneration between the making of the order for compensation and the payment of compensation.
Only monies earned since termination for the anticipated period of employment are to be deducted. Consequently, no deductions are to be made for earnings. I have also found that the Applicant has taken reasonable steps to mitigate her losses and consequently no deduction is to be made to the amount of $19,860.78.
Step 3
I now need to consider the impact of contingencies on the amounts likely to be earned by the Applicant for the remainder of the anticipated period of employment.[57]
I consider it appropriate to deduct a further 10 percent from the sum of $19,860.78 on the basis of contingencies. This leaves a figure of $17,874.70 (i.e. $19,860.78 – 10 percent ($1,986.08)).
Step 4
I have considered the impact of taxation but have elected to settle a gross amount of $17,874.70 which is to be subject to normal taxation.
Compensation and all the circumstances of the case
Having applied the formula in Sprigg, I am nevertheless required to ensure that “the level of compensation is an amount that is considered appropriate having regard to all the circumstances of the case.”[58]
I am satisfied that the amount of compensation that I have determined above takes into account all the circumstances of the case as required by s.392(2) of the Act.
Compensation – how does the compensation cap apply?
Section 392(5) of the Act provides that the amount of compensation ordered by the Commission must not exceed the lesser of:
a. the amount worked out under section 392(6); and
b. half the amount of the high income threshold immediately before the dismissal.
The amount worked out under section 392(6) is the total of the following amounts:
(a)the total amount of the remuneration:
(i)received by the Applicant; or
(ii)to which the Applicant was entitled;
(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and
(b)if the Applicant was on leave without pay or without full pay while so employed during any part of that period – the amount of remuneration taken to have been received by the Applicant for the period of leave is in accordance with the regulations.
The gross amount of $17,874.70 is less than the compensation cap. No further adjustment of the amount is necessary.
Conclusion
I am satisfied that the amount of compensation that I have determined to be awarded to the Applicant takes into account all the circumstances of the case as required by s.392(2) of the Act, and that the figure of $17,874.70 (plus 10.5 percent superannuation on that amount), in all the circumstances of this case, does not yield an amount that is clearly excessive or clearly inadequate.
I am equally satisfied that my finding as to the Applicant’s dismissal being unfair, and the amount of compensation to be awarded to the Applicant, ensures that a fair go all round has been afforded to both the Applicant and the Respondent in this case.[59]
I will make an order that the Respondent pay the Applicant (in lieu of reinstatement) $17,874.70 (less applicable taxation as required by law), plus 10.5 percent superannuation on that amount ($1,876.84), within 14 days of the date of this decision. Orders to this effect will be issued contemporaneously with this decision.
DEPUTY PRESIDENT
The Applicant (Ms Sarah Singh) appeared for herself.
Ms Melissa Cahill, Retail Store Manager (Sutherland, NSW), appeared for the Respondent.
[1] Exhibit A.
[2] Exhibit A2.
[3] Exhibit R2.
[4] Exhibit R3.
[5] Exhibit R1, at [5]-[7], and [23].
[6] Exhibit R1, at [7]
[7] Exhibit R1, [3] and [39].
[8] Applicant’s Statement, Exhibit A, at [5]-[6].
[9] Applicant’s Statement, Exhibit A, at [14]-[24].
[10] Ibid, at [25]-[34].
[11] Ibid.
[12] Ibid, at Annexure D.
[13] Exhibit R1, at [38].
[14] Applicant’s Statement, Exhibit A, at [25]-[34].
[15] Ibid, at [35]-[46].
[16] Ibid, Document K.
[17] Exhibit R1, at [39]-[42].
[18] Ibid, at Annexure K.
[19] Exhibit R1, [3] and [39].
[20] Ibid, Document L.
[21] I note that I granted an extension of time for the application made by the Applicant to be filed on 10 February 2023: PR760183.
[22] Allied Express Transport Pty Ltd v Anderson (1998) 81 IR 410, at 412; Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201, at 204.
[23] Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333; (2000) IR 371, at 373.
[24] Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, at 685.
[25] Edwards v Justice Giudice (1999) 94 FCR 561; (1999) 169 ALR 89; [1999] FCA 1836, at [7]; Gelagotis v Esso Australia Pty Ltd[2018] FWCFB 6092, at [117]; Titan Plant Hire Pty Ltd v Van Malsen[2016] FWCFB 5520, 263 IR 1, at [28].
[26] King v Freshmore (Vic) Pty Ltd Print S4213 [2000] AIRC 1019, at [23] to [24].
[27] Briginshaw v Briginshaw (1938) 60 CLR 336; Evidence Act 1995 (Cth), s.140.
[28] Crozier v AIRC (2000) 50 AILR 4-488; [2001] FCA 1031, at [14].
[29] See more broadly: Jetstar Airways Ltd v Neeteson-Lemkes[2013] FWCFB 9075; CSL Limited v Chris Papaioannou[2018] FWCFB 1005.
[30] G v H (1994) 191 CLR 387, at 402.
[31] Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429, at [19]; Reseigh v Stegbar Pty Ltd [2020] FWCFB 533, at [55]; Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, at 151.
[32] Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998). See also Chubb Security Australia Pty Ltd v Thomas Print S2679 (AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 2000), at [41]; Read v Gordon Square Child Care Centre Inc[2013] FWCFB 762 (Acton DP, Deegan C and Gregory C), at [46] to [49].
[33] [1996] IRCA 568.
[34] Ibid.
[35] 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), at [75]; RMIT v Asher (2010) 194 IR 1, at 14-15; Gibson v Bosmac Pty Ltd (1995) 60 IR 1, at 7.
[36] Jurisic v ABB Australia Pty Ltd[2014] FWCFB 5835, at [84].
[37] McCarron v Commercial Facilities Management Pty Ltd t/a CFM Air Conditioning Pty Ltd[2013] FWC 3034, at [32].
[38] Fastidia Pty Ltd v Goodwin, Print S9280 (AIRCFB, Ross VP, Williams SDP, Blair C, 21 August 2000), at [43] to [44].
[39] Ibid.
[40] Sykes v Heatly Pty Ltd t/a Heatly Sports PR914149 (AIRC, Grainger C), at [21].
[41] Telstra Corporation v Streeter [2008] AIRCFB 15, at [27].
[42] Kioa v West [1985] HCA 81, at [22] (per Wilson J). See also at [11] per Gibbs CJ.
[43] Jurisic v ABB Australia Pty Ltd[2014] FWCFB 5835, at [84].
[44] Exhibit R1 at [7]-[14], [17]-[20], [22]-[23], [25]-[36], [42]-[46] (including the annexures referred to in these paragraphs); Mr Tan Statutory Declaration (Exhibit R2); Parul (no last name) Statutory Declaration (Exhibit R3).
[45] This is especially so having regard to my findings at paragraphs [31]-[33] to this decision.
[46] ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, at [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), at [92]; Edwards v Justice Giudice [1999] FCA 1836, at [6] to [7].
[47] Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter [2014] FWCFB 7198, at [9].
[48] He v Lewin [2004] FCAFC 161, at [58].
[49] Biviano v Suji Kim Collection PR915963 (AIRCFB, Ross VP, O’Callaghan SDP, Foggo C, 28 March 2002), at [34] citing Lockwood Security Products Pty Ltd v Sulocki and Ors PR908053 (AIRCFB, Giudice J, Lacy SDP, Blair C, 23 August 2001), at [45].
[50] Biviano v Suji Kim Collection PR915963 (AIRCFB, Ross VP, O’Callaghan SDP, Foggo C, 28 March 2002), at [34] citing Payzu Ltd v Saunders [1919] 2 KB 581.
[51] Applicant’s Statement, Exhibit A, at [50]-[56].
[52] Read v Gordon Square Child Care Centre Inc [2013] FWCFB 762, at [83].
[53] Ibid.
[54] (1998) 88 IR 21.
[55] [2013] FWCFB 431; Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries [2016] FWCFB 7206, at [16].
[56] Ellawala v Australian Postal Corporation Print S5109 (AIRCFB, Ross VP, Williams SDP, Gay C, 17 April 2000), at [34].
[57] Enhance Systems Pty Ltd v Cox PR910779 (AIRCFB, Williams SDP, Acton SDP, Gay C, 31 October 2001), at [39].
[58] Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries [2016] FWCFB 7206, at [17].
[59] Section 381(2) of the Fair Work Act 2009.
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