Shiralee Read v Paskov CWF Pty Ltd

[2020] FWC 2509

[2020] FWC 2509

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Shiralee Read
v
Paskov CWF Pty Ltd
(U2020/721)

DEPUTY PRESIDENT BEAUMONT PERTH, 29 MAY 2020

Application for an unfair dismissal remedy – genuine redundancy and Small Business Dismissal Code – not a genuine redundancy – lack of a reason for the dismissal - dismissal unjust, unreasonable and unfair.

[1] This decision concerns an application by Ms Shiralee Read for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Cth)(Act).

[2] Ms Read started working for Paskov CWF Pty Ltd (t/a Classic Window Finishings) (Classic Windows) as a full-time sales/showroom administrator on or around 12 March 2018. However, by 9 January 2020, Ms Read had been dismissed, purportedly by way of a redundancy.

[3] Ms Read said that before she was dismissed, Ms Violeta Paskov, Director of Classic Windows, had initially offered her two days of work a week. Aggrieved by the treatment she received from Ms Paskov, Ms Read complained about the lack of consultation about the proposed changes to her full-time role and informed Ms Paskov she would be seeking legal advice. On the date of her dismissal, Ms Read was informed that the two days a week were withdrawn, and she was to leave the premises. It came to Ms Read’s attention that a new sales/showroom administrator would be commencing on 13 January 2020, working one day a week.

[4] It has been advanced that Ms Read’s dismissal had not arisen from a genuine redundancy and was unfair. As to the contentions of Classic Windows, Ms Paskov asserts that the dismissal was not unfair, and she did what was required for the business. Ms Paskov further submitted that she was under no obligation to speak to Ms Read about what had happened (referring to the changes within the business) and that is all there was to it.

[5] It should be noted at this point, Classic Windows, through Ms Paskov, did not comply with directions, was provided with an extension of time in which to file materials having made a request for the same on 6 May 2020, was unresponsive regarding the invitations concerning a conciliation conference, and at the time of hearing had not filed any materials including a Form F3 Employer Response. Notwithstanding, I granted leave for Ms Paskov to give oral testimony at the hearing, but regrettably Ms Paskov’s evidence was not particularly illuminating and did not assist her case.

[6] Ms Paskov’s exiguous oral testimony was provided in direct competition with verbal instructions from her car’s satellite navigation system. Although there was at times great difficulty discerning whether I should be turning left or right, eventually Ms Paskov’s oral testimony was able to be received, once she desisted driving while giving evidence.

[7] As no evidence was filed by Classic Windows, Ms Paskov’s oral testimony was perfunctory and unpersuasive, and Ms Read’s evidence was uncontested - with the exception of the nature of the relationship between Ms Paskov and the new sales/showroom administrator, I preferred the evidence led by Ms Read. Accordingly, I have attributed greater weight to it. However, I appreciate that Ms Paskov appeared completely unfamiliar with this jurisdiction and its processes, in addition to the obligations concerning the regulation of employment. I have considered these matters when examining issues and arriving at findings.

[8] Consequently, when Ms Paskov did not raise a jurisdictional objection that Classic Windows had complied with the Small Business Fair Dismissal Code (Code), notwithstanding the evidence given suggested Classic Windows was a small business employer (five employees), the issue was considered.

[9] In short, I have concluded that Ms Read was not dismissed by way of genuine redundancy and her dismissal was unfair. While the parties were informed at hearing both were to address the issue of remedy, and direction was provided concerning the relevant considerations, neither party did, despite prompting and guidance. Therefore, the parties are directed to file any written submission regarding Division 4 of the Fair Work Act 2009 (Cth) (the Act) within seven days from the date of this decision, the relevant sections of which are provided. The matter will then be listed for a telephone hearing regarding remedy.

Background

[10] In her witness statement, Ms Read gave evidence that she earnt $25 per hour and worked a 78 hour fortnight.

[11] Toward the latter part of 2019, Ms Read’s father became progressively unwell and was placed in palliative care. Ms Read’s father passed away on 9 December 2019, and Ms Read subsequently took compassionate leave, two days of time off in lieu, and two days of annual leave. 1

[12] Ms Read was due to return to work on 17 December 2019, having attended to the arrangements of her father’s funeral. 2 However, Ms Read said that on the evening of 16 December 2019, the day before her planned return to work, she received a text message from Ms Paskov informing her to take the last four days off as annual leave and that she would see Ms Read in the new year refreshed.3 While Ms Read advised Ms Paskov that she was prepared to return to work, according to Ms Read, Ms Paskov insisted she have the time off.4

[13] Ms Paskov’s stated that on 5 January 2020, the day prior to returning to work following the Christmas break, she received an email from Ms Paskov that set out changes to current working arrangements. 5 Ms Paskov explained that due to her current health issues she had to engage a new sales representative to take over her role as of 13 January 2020, and therefore would be returning back to the office on a permanent basis.6 Ms Paskov continued that Ms Read’s permanent days would now be Thursday and Friday each week commencing from 9 January 2020 (reverting the position to a part-time basis, as initially advertised on Seek).7 Ms Paskov acknowledged in her email of 5 January 2020, the hours of work may be insufficient for Ms Read.

[14] Ms Read gave evidence that she disagreed that her position was initially part-time and stated that she had always worked on a full-time basis. Ms Read explained she emailed Ms Paskov on or around 5 January 2020, informing her that she did not agree with the changes, and had always worked full-time since 12 March 2018. In the email, Ms Read informed Ms Paskov that she would not be presenting for work on 6 January 2020 as she would be seeking legal advice concerning the matter and would return on 7 January 2020 to fulfil her obligations as a full-time employee.

[15] Having obtained guidance from the Fair Work Ombudsman, Ms Read said she forwarded that guidance to Ms Paskov to provide her with the opportunity to discuss the business changes and the guidance with her. 8 Ms Paskov was said to have responded by text message, that Ms Read should take off 7 and 8 January 2020 noting that Ms Paskov would not be in the office on 7 January and that a meeting would take place at 1.00pm on 8 January 2020 to discuss Ms Read’s future employment.9 For various reasons the meeting did not take place at the proposed time and was rescheduled to 9 January 2020.10

[16] Before the meeting on 9 January 2020, Ms Read said she received an email from Classic Windows’ book-keeper advising that Ms Paskov had discussed with the book-keeper, her intention of reducing Ms Read’s position from full-time to part-time and that Ms Read was to advise ‘asap’ if happy to accept the part-time hours, otherwise the only alternative would be to make Ms Read’s position redundant. 11

[17] Ms Read presented to the offices of Classic Windows on 9 January 2019, at which time she was informed by Ms Paskov to leave the premises, and that she had every right to make Ms Read’s position redundant. 12 Ms Read gave evidence that she informed Ms Paskov that she had not stated that the position could not be made redundant, but that Ms Paskov had a responsibility to discuss the changes with her.13 Ms Read said that Ms Paskov then informed her that she was ‘terminated’ and the part-time position was no longer available to her.14

[18] Ms Read gave evidence that while she was on bereavement leave, Ms Paskov had engaged an office lady. That same lady had continued to cover Ms Read’s position since Ms Read’s dismissal, working four days a week. Ms Read gave evidence that a sales representative had not commenced. Ms Read stated to the effect that Ms Paskov remained performing the sales representative work despite it being the rationale for the changes made. The evidence of two Classic Windows staff, Mr Shane Read, Installer and brother of Ms Read, and Mr John Munachen, Blind Maker and Installer, aligned with that of Ms Read.

Matters in dispute

[19] Ms Read contends that her dismissal was not by way of genuine redundancy and that she was simply replaced by another employee.

[20] For this reason and having observed that genuine redundancy is not broached in the Code, I have decided to first consider the initial matter of ss 385(d) and ss 396(d).

Protection from Unfair Dismissal

[21] Section 394(1) of the Act provides that a person who has been dismissed may apply to the Commission for an order under Division 4 of Part 3-2 of the Act granting a remedy for unfair dismissal. It is not in dispute that Ms Read made her application for an unfair dismissal remedy within the period required in s 394(2) of the Act and that she earned less than the high income threshold.

[22] A dismissal is unfair if the Commission is satisfied, on the evidence before it, that all of the circumstances set out at s 385 of the Act existed. Section 385 provides the following:

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.

[23] Section 396 of the Act provides that before considering the merits of an application for an unfair dismissal remedy order, the Commission must determine some other initial matters. Section 396 is as follows:

396 Initial matters to be considered before merits

The FWC must decide the following matters relation to an application for an order under Division 4 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.

[24] The effect of s 396 of the Act is that if a dismissal was a case of genuine redundancy, the Commission does not need to consider whether it is satisfied the dismissal was harsh, unjust or unreasonable.

[25] The respondent bears the evidential burden concerning its objections.

Genuine redundancy

[26] The term ‘genuine redundancy’ is defined in s 389 of the Act in the following terms:

389 Meaning of genuine redundancy

(1) A person’s dismissal was a case of genuine redundancy if:

(a) the person’s 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.

(2) A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:

(a) the employer’s enterprise; or

(b) the enterprise of an associated entity of the employer.

[27] There are various factors to consider when arriving at a decision on whether the redundancy is a genuine redundancy. They are subsequently traversed.

No longer requires the person’s job to be performed

[28] To be satisfied the dismissal was a case of genuine redundancy, the Commission must be satisfied the support role was no longer required to be performed by anyone because of operational changes to the employer. 15

[29] The Act does not define the term ‘operational requirements’. It is a broad term that permits consideration of many matters including the state of the market in which the business operates and the application of good management to the business. 16

[30] Some examples of changes in operational requirements include a downturn in trade that reduces the number of employees required and the employer restructuring the business to improve efficiency, including the redistribution of tasks done by a particular person between several other employees, thus resulting in the person’s job no longer existing. 17

[31] An employee may still be genuinely made redundant when there are aspects of the employee duties still being performed by other employees. 18 In Kekeris v A. Hartrodt Australia Pty Ltd T/A A. Hartrodt 19, Senior Deputy President Hamberger found:

When one looks at the specific duties performed by the applicant prior to her termination they have much in common with those of the two positions in the new structure. The test is not however whether the duties survive. Paragraph 1548 of the Explanatory Memorandum makes clear that it can still be a ‘genuine redundancy’ where the duties of the previous job persist but are redistributed to other positions. The test is whether the job performed by the applicant still exists.  20

[32] It should be noted it is the ‘job’ that is no longer required to be performed, rather than the ‘duties’. 21 The onus rests with the employer to prove that, on the balance of probabilities, the redundancy was due to changes in operational requirements.22

Consideration

[33] There was no cogent evidence led by Classic Windows regarding the reasons for the changes made to Ms Read’s hours of work and thereafter the termination of employment. Ms Paskov’s oral testimony was to the effect that she made the changes she did for the business. Ms Read provided evidence of the content of communications between her and Ms Paskov, and it appeared from those communications that Ms Paskov no longer required Ms Read to work in a full-time capacity because Ms Paskov would be returning to the office to work. However, there appeared to be no operational reason referred to, for the withdrawal of the part-time position and subsequent dismissal.

[34] It was not clear from the evidence adduced that the position or job, which Ms Read held, was no longer required to be performed by anyone because of operational requirements of Classic Windows. While Ms Read asserted that someone else was performing the work she undertook, the evidence was unpersuasive given that no detail was provided of the working arrangement between that person and Classic Windows, or the particular work that was being performed. However, I observe that Ms Paskov did not refute the evidence of Ms Read that a sales representative had been employed and that another person was covering the position of sales/showroom administrator.

[35] Having considered the totality of the evidence in light of s 389(1)(a), I have concluded that Classic Windows has not shown that more likely than not that the position of sales/showroom administrator was no longer required.

Consultation

[36] Given my conclusion, I appreciate the utility of considering whether Classic Windows was obliged to consult Ms Read, and whether it so did, is questionable. However, for the sake of fulsomeness the issue is traversed.

[37] The Explanatory Memorandum to the Fair Work Bill 2008 (Cth)states the following in respect of consultation in s 389 of the Act:

1550. Paragraph 389(1)(b) provides that it will not be a case of genuine redundancy if an employer does not comply with any relevant obligation in a modern award or enterprise agreement to consult about the redundancy. This does not impose an absolute obligation on an employer to consult about the redundancy but requires the employer to fulfil obligations under an award or agreement if the dismissal is to be considered a genuine redundancy.

[38] If an employer is obliged to consult and fails to do so it is said that there cannot be a genuine redundancy. 23 Consultations should be meaningful and should be engaged in before an irreversible decision to terminate has been made.24

[39] Consultation is not perfunctory advice on what is about to happen, consultation is providing the individual, or other relevant persons, with a bona fide opportunity to influence the decision maker. 25

Consideration

[40] Neither party spoke of the relevant award that covered Ms Read’s employment. However, in light of the evidence, I have concluded that the General Retail Industry Award 2020 (Award)covered Ms Read; it relevantly provides:

Consultation about major workplace change

8.1 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.

8.2 For the purposes of the discussion under clause 1.1(b), the employer must give in writing to the affected employees and their representatives (if any) all relevant information about the changes including:

(d) their nature; and

(e) their expected effect on employees; and

(f) any other matters likely to affect employees.

8.3 Clause 0 does not require an employer to disclose any confidential information if its disclosure would be contrary to the employer’s interests.

8.4 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 1.1(b).

8.5 In clause [40]:

significant effects, on employees, includes any of the following:

(g) termination of employment; or

(h) major changes in the composition, operation or size of the employer’s workforce or in the skills required; or

(i) loss of, or reduction in, job or promotion opportunities; or

(j) loss of, or reduction in, job tenure; or

(k) alteration of hours of work; or

(l) the need for employees to be retrained or transferred to other work or locations; or

(m) job restructuring.

8.6 Where this award makes provision for alteration of any of the matters defined at clause 0, such alteration is taken not to have significant effect.

[41] Ms Paskov provided written notification of the change to Ms Read’s hours of work via her email dated 5 January 2020. However, she declined to discuss the change with Ms Read notwithstanding requests from Ms Read to do so. On 9 January 2020, Ms Paskov then decided to terminate Ms Paskov’s employment. While the email from the book-keeper noted that if Ms Read did not inform her ‘asap’ whether she was happy to accept the part-time hours the only alternative would be to make Ms Read’s position redundant, 26 there was no meaningful consultation about the potential loss of employment.

Redeployment

[42] A dismissal is not a case of genuine redundancy if it would have been reasonable in all circumstances for the person to be redeployed within the employer’s enterprise, or within the enterprise of an associated entity of the employer. The consideration of the reasonableness of redeployment involves an examination of the actions taken by the employer to redeploy the employee and the actions of the employee, their conduct and approach to the redeployment.

[43] The Explanatory Memorandum to the Fair Work Bill at paragraph 1552 provides:

1552. There may be many reasons why it would not be reasonable for a person to be redeployed. For instance, the employer could be a small business employer where there is no opportunity for redeployment or there may be no positions available for which the employee has suitable qualifications or experience.

1553. Whether a dismissal is a genuine redundancy does not go to the process for selecting individual employees for redundancy. However, if the reason a person is selected for redundancy is one of the prohibited reasons covered by the general protections in Part 3-1 then the person will be able to bring an action under that Part in relation to the dismissal.

[44] The decision in Ulan Coal Mines Limited v Honeysett and ors 27 dealt extensively with the redeployment obligations set out in s 389(2) of the Act. I have considered the decision of the Full Bench in that matter and in Technical and Further Education Commission T/A TAFE NSW v Pykett.28

Consideration

[45] According to Ms Paskov’s evidence the business was said to have had five employees. Redeployment does not appear to have been reasonable in all the circumstances although I acknowledge that in the absence of evidence from Ms Paskov, it is difficult to determine.

[46] Ms Read submitted that another person was now undertaking the duties of her position and working four days. That contention was supported by the evidence of two former colleagues – one of whom was Ms Read’s brother. However, on the material before me, there is insufficient probative evidence to find that a person had been engaged to perform Ms Read’s duties, and to conclude it was reasonable in all the circumstances to have redeployed Ms Read.

[47] Further, I make the following observation about Ms Pakov’s evidence. Ms Paskov appeared to accept the evidence led by Ms Read that another person was working within the business who had been engaged whilst Ms Read was on bereavement leave. While Ms Paskov argued she did not have a personal relationship with that person she did not rebut other evidence led. However, I am mindful that Ms Paskov made limited opening and closing submissions, and such submissions did not assist her. She asked no questions in cross examination and did not seek to rebut any of the evidence led. In effect, she led limited evidence on behalf of Classic Windows.

[48] Ms Paskov’s actions were not, in my view, a deliberate attempt to be uncooperative. In short, it was apparent she had no idea what she was doing, had not read any of the resources or materials provided to her, and had assumed that there was no case to answer as she had done everything correctly. A foolhardy approach, but that was her approach all the same.

Compliance with the Small Business Fair Dismissal Code

[49] A person has not been unfairly dismissed where the dismissal is consistent with the Code. The Code is only relevant if the employer is a small business. And, while the evidence of Ms Read suggests that Classic Windows had five employees at the relevant time, it is the case that the Code does not apply to dismissals in circumstances of redundancy. This is self-evident from the Code’s content which refers specifically to summary dismissal and ‘other dismissal’, which refers only to the employee’s conduct or capacity to do the job.

[50] Given the absence of grounds concerning Ms Read’s conduct or capacity to do the job, any objection premised on compliance with the Code falls away and my attention turns to s 387.

Whether the dismissal was harsh, unjust or unreasonable

[51] As Ms Read was not dismissed by way of genuine redundancy and Classic Windows provided no evidence concerning Code applicability or compliance, attention turns to whether Ms Read’s dismissal was ‘unfair’.

[52] ‘Unfair’ of course taking its meaning from s 385(b) of the Act, which states that a person has been unfairly dismissed if the Commission is satisfied that ‘the dismissal was harsh, unjust or unreasonable’.

[53] The Act relevantly provides the criteria for ascertaining 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.

[54] Section 387 of the Act contemplates that the Commission will undertake an overall assessment as to the nature of the dismissal. In so doing, the Act sets out criteria that must, where relevant, be weighed up in totality. It is convenient to use those criteria set out in s 387, to outline my consideration of the matter.

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

[55] When determining if a dismissal was unfair the Commission must take into account whether there was a valid reason for dismissal relating to the employee’s capacity or conduct. 29 It is not the case that there must be a valid reason, the legislation simply requires me to take into account whether there was a valid reason for the dismissal related to capacity and conduct.

[56] ‘Valid’ in this context is generally considered to be whether there was a sound, defensible or well-founded reason for the dismissal. The provisions must be applied in a practical, common sense way to ensure that the employer and employee are treated fairly. 30

[57] Where the reason for termination of employment relates to an employee’s capacity or conduct, it is not the Commission’s function to stand in the shoes of the employer and determine whether or not the decision made by the employer was a decision that would be made by the Commission. It is for the Commission to assess whether the employer had a valid reason connected with the employee’s capacity or conduct. 31

[58] It is well understood that s 387(a) is not limited to simply the capacity or conduct of an employee. Selvachandran v Peteron Plastics Pty Ltd 32establishes the applicable formulation of the test for a valid reason. Although the case was decided under a different legislative scheme, whereby the existence of a valid reason was a statutory requirement, the Commission has subsequently applied it to the current legislative formulation in which the existence of a valid reason is one, albeit important, consideration in determining whether a dismissal is harsh, unjust or unreasonable.33

[59] To constitute a valid reason, 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. 34 The section requires the focus to fall upon the employer and the basis of her or his decision, rather than upon its consequences for the employee. What must be examined is the validity of the reason, and its connection with the employee’s capacity or conduct or its basis in operational requirements of the employer.35

Consideration

[60] The dismissal of Ms Read appeared unrelated to her capacity or conduct.

[61] The reason given for the reduction in hours, according to Ms Read (noting however that Ms Paskov did not rebut such reason), was that Ms Paskov was to perform office duties as she could no longer perform the role of sales representative, given her ill health. It therefore appears that initially there was a redundancy of a full-time position and the position thereafter was a part-time position working two days a week.

[62] At the meeting on 9 January 2020, between Ms Read and Ms Paskov, Ms Paskov directed Ms Read to leave the premises, and that she had every right to make Ms Read’s position redundant. 36 Ms Read gave evidence that she informed Ms Paskov that she had not stated that the position could not be made redundant, but that Ms Paskov had a responsibility to discuss the changes with her.37 Ms Read said that Ms Paskov then informed her that she was ‘terminated’ and the part-time position was no longer available to her.38

[63] The evidence before me is insufficient to arrive at a finding that Ms Read’s termination of employment was based upon the operational requirements of the employer’s business. There was no reason provided why the part-time position was no longer viable and why Ms Read was informed her employment was terminated. While I am unable to discern from the evidence whether the new staff member purportedly replaced Ms Read by performing the same duties of Ms Read’s role, having considered all the evidence it cannot be said, however, that there was a valid reason for Ms Read’s dismissal.

[64] In Parmalat Food Products Pty Ltd v Wililo 39 the Full Bench held that the existence of a valid reason is a very important consideration in any unfair dismissal case, the absence of which will almost invariably render the termination unfair.

Notification of the valid reason and an opportunity to respond

[65] The Commission must take into account whether notification of a valid reason for termination has been given to an employee protected from unfair dismissal before the decision is made, 40 and in explicit,41 plain and clear terms. It is accepted that this is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality.42

Consideration

[66] The evidence shows that while Ms Read was notified of the decision to make her position redundant by reducing her role to a part-time position, 43 the decision to dismiss Ms Read had been made before she was provided with an opportunity to respond to that decision.

An unreasonable refusal by the respondent to allow a support person

[67] When considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal.

Consideration

[68] In the circumstances of this case, I consider this to be a neutral factor. Although Ms Read did ask two colleagues to witness the meeting between her and Ms Paskov, it is not apparent that she asked Ms Paskov to have a support person present and that Ms Paskov refused.

Dismissal is related to unsatisfactory performance

[69] This does not arise here for reasons outlined above.

Impact of the size of the respondent on procedures followed and absence of dedicated human resources management specialist/expertise on procedures followed

[70] When considering whether a dismissal was harsh, unjust or unreasonable, the Commission must take into account the degree to which: (a) the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and (b) 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.

Consideration

[71] The lack of material submitted by Classic Windows and its lack of preparedness for hearing, indicates it is a small business employer managed by a Director with no human resources experience. I have duly considered this factor in reaching my conclusion.

Other relevant matters

[72] Ms Read submitted she had 30 years of vast knowledge and experience in the industry as a whole, and was more than qualified and suitable for a sales representative position or a role in office administration. Her dismissal had caused her financial hardship at a time where Ms Read was under enormous pressive given she was grieving the death of her father.

[73] Ms Read stated that at no time during her employment had Ms Paskov counselled her or approach her regarding her performance. This teamed with Ms Paskov’s reluctance to keep her employed in a restructured role, had led Ms Read to believe that she had been unfairly dismissed for undisclosed reasons, and Ms Paskov’s explanation for her dismissal was ‘ingenuine’ (albeit it is suspected that Ms Read meant to say not genuine). It was Ms Read’s view that Ms Paskov’s claim that it was a redundancy was nothing more than a sham.

Conclusion on nature of dismissal

[74] There was no valid reason for Ms Read’s dismissal and there was a failure to accord her procedural fairness as understood by reference to ss 387(b) and (c) of the Act. While I appreciate that Classic Windows was a business lacking human resource expertise and had a director who appeared unfamiliar with the basics of employment regulation, I consider that in all the circumstances the procedural deficits gave rise to unfairness in the particular circumstances of this case. The dismissal was therefore unjust, unreasonable and unfair within the meaning of the Act.

Remedy

[75] The question now turns to whether an unfair dismissal remedy should be ordered in favour of Ms Read, whose dismissal by Classic Windows has been determined to have been unfair. At hearing, the parties were informed that the Commission would consider submissions and evidence regarding remedy. Further, ss 391 and 392 were brought to the attention of the parties, and the criteria in ss 392(2)(a) were read out to them. Neither provided any evidence or submissions with respect to remedy notwithstanding the guidance given.

[76] In the absence of any evidence or submissions regarding remedy, I consider that I am unable to arrive at a decision as to whether reinstatement is inappropriate or compensation appropriate. Further, while obliged to take into account the circumstances of the case, including those set out in s 392(2), this is evidently problematic when the parties have not addressed the section in their evidence or submissions.

[77] It follows that the parties are provided with seven days from the date of this decision to file any written submissions and evidence (in the form of witness statements and other documentary material) regarding Division 4 of the Act. The parties are provided with relevant sections of the Act for their assistance. The matter will then be listed for a telephone hearing.

DEPUTY PRESIDENT

Appearances:

S Read, Applicant
V Paskov of Paskov CWF Pty Ltd

Hearing details:

2020.
Perth (by video):
May 19

Printed by authority of the Commonwealth Government Printer

<PR719344>

 1   Form F2 Unfair Dismissal Application Statement of Unfair Dismissal - Ms Read (Form F2 Statement).

 2 Ibid [2].

 3 Ibid [3].

 4 Ibid [3].

 5 Ibid [4].

 6 Ibid [4].

 7 Ibid [4].

 8 Ibid [5].

 9 Ibid [5].

 10 Ibid [5].

 11 Ibid [6].

 12 Ibid [7].

 13 Ibid [7].

 14 Ibid [7].

 15   Fair Work Act 2009 (Cth) s 389(1)(a).

 16   Nettlefold v Kym Smoker Pty Ltd (1996) 69 IR 370, 373.

 17   Explanatory Memorandum, Fair Work Bill 2008 (Cth) [1548].

 18   Dibb v Commissioner of Taxation (2004) 136 FCR 388, 404-405.

 19   Kekeris v A. Hartrodt Australia Pty Ltd T/A A.Hartrodt[2010] FWA 674.

 20 Ibid [27].

 21   Ulan Coal Mines Ltd v Howarth (2010) 196 IR 32 [17].

 22   Keiselbach v Amity Group Pty Ltd (unreported, AIRC, Hamilton DP, 9 October 2006) PR973864 [34].

 23   See also UES (Int’l) Pty Ltd v Harvey (2012) 215 IR 263.

 24   Construction, Forestry, Mining and Energy Union v Newcastle Wallsend Coal Company (1998) 88 IR 202.

 25   Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Vodaphone Network Pty Ltd [2001] AIRCPR911257 [25].

 26 Form F2 Statement [6].

 27 (2010) 196 IR 32.

 28 (2014) 240 IR 130.

 29   Fair Work Act 2009 (Cth) s 387(a).

 30   Ibid, as cited in Potter v WorkCover Corporation (2004) 133 IR 458 and endorsed by the Full Bench in Industrial Automation Group Pty Ltd T/A Industrial Automation (2010) 202 IR 17, [36].

 31   Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.

 32 (1995) 62 IR 371.

 33   Lion Dairy and Drinks Milk Ltd v Norman[2016] FWCFB 4218

 34   Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371.

 35   Qantas Airways Ltd v Cornwall (1988) 84 FCR 483.

 36 Form F2 Statement [7].

 37 Ibid [7].

 38 Ibid [7].

 39 (2011) 207 IR 243 [24].

 40   Trimatic Management Services Pty Ltd v Daniel Bowley[2013] FWCFB 5160; Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.

 41   Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151; Previsic v Australian Quarantine Inspection Services Print Q3730.

 42   Royal Melbourne Institute of Technology v Asher (2010) 194 IR 1, 14-15.

 43   Exhibit A6.