Skye Ilsley v Premier Hotel T/A Premier Hotel

[2018] FWC 3437

[2018] FWC 3437

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Skye Ilsley
v
Premier Hotel T/A Premier Hotel
(U2017/13356)

COMMISSIONER WILLIAMS PERTH, 14 JUNE 2018

Termination of employment.

[1] This decision concerns an unfair dismissal remedy application made by Ms Skye Ilsley (Ms Ilsley or the Applicant) under section 394 of the Fair Work Act 2009 (the Act). The respondent is Premier Hotel T/A Premier Hotel (Premier Hotel or the Respondent).

[2] This application was the subject of a decision of Commissioner Platt on 4 April 2018. That decision dealt with a number of jurisdictional objections. Commissioner Platt held that the Premier Hotel was not a small business employer, that Ms Ilsley was a casual employee and that the minimum employment period required by section 383 of the Act had been met and that Ms Ilsley was dismissed on 27 November 2017. 1

[3] Subsequently the application was allocated to me for hearing on the merits. Prior to hearing a conference of the parties was convened however the matter was not resolved.

[4] At the hearing of this matter Mr Lumley, a lawyer, sought permission to represent Ms Ilsley.

[5] Ms Ilsley has not previously been represented by a lawyer or a paid agent. No notification in terms of an application seeking permission to represent Ms Ilsley was received from Mr Lumley prior to this hearing. Mr Dorairaj, the Owner and Director of the Premier Hotel, was not represented in the prior proceedings nor at this hearing.

[6] Mr Lumley submitted that it would be unfair not to allow Ms Ilsley to be represented due to her limited education when compared to Mr Dorairaj who apparently is a dentist.

[7] The circumstances in which the Commission may grant permission for a person to be represented by a lawyer are set out in section 596 of the Act. Having considered section 596 I held that this matter was simple with no complexity, that Ms Ilsley had demonstrated in the prior hearing that she was able to effectively represent herself and given the simple nature of this matter, which largely turned on the facts, she would be able to effectively represent herself again in this hearing and finally whilst Mr Dorairaj may be a dentist that did not obviously unfairly advantage him in the hearing of this matter compared to Ms Ilsley. Consequently Mr Lumley was not granted permission to represent Ms Ilsley.

[8] Accordingly the hearing proceeded with both Ms Ilsley and Mr Dorairaj being self-represented.

The evidence and factual findings

[9] At the hearing Ms Ilsley gave evidence on her own behalf and evidence was given by Ms Marissa Page (Ms Page) who on 26 November 2017 was the Duty Manager rostered on at the Premier Hotel. Mr Dorairaj gave evidence for the Respondent.

[10] Mr Dorairaj provided a witness statement from Mr Wayne Stewart (Mr Stewart) however he was not present at the hearing and noting the objection of Ms Ilsley Mr Stewart’s witness statement has not been accepted into evidence and does not form part of the evidence on which this matter will be determined.

[11] The circumstances of Ms Ilsley’s dismissal were set out in [24] of Commissioner Platt’s decision which is consistent with the evidence in the hearing before me.

“[24] Ms Ilsley gave evidence that Mr Wayne Stewart, Operations Manager, rang her and advised she was not required for her next shift and would not be offered further work. Premier Hotel advised that Mr Stewart continued to work (or be engaged) at the Hotel but no witness statement was submitted nor was Mr Stewart called as a witness. Mr Dorairaj, on behalf of Premier Hotel, advised he was not party to the conversation held. Mr Dorairaj authorised the preparation of a Centrelink Separation Certificate which detailed the last day of employment of Ms Ilsley as 27 November 2017 and that the employment ended as a result of unsatisfactory work performance. Mr Dorairaj maintained his position that Ms Ilsley had not been dismissed as she could have been offered further shifts.”

[12] Noting that this hearing is to determine whether the dismissal of Ms Ilsley was unfair, the evidence is that Ms Ilsley commenced employment in January 2017. She was employed on a casual basis and her hours each week were variable.

[13] Ms Ilsley’s evidence was that her earnings changed when the new management came into Premier Hotel being Wayne and Rochelle Stewart. 2

[14] This was confirmed by the evidence of Ms Page who said that all the rosters changed after Mr and Mrs Stewart were employed. 3

[15] The evidence of Ms Ilsley in the prior jurisdictional hearing was that when Mr and Mrs Stewart came in she looked at the roster and saw she was given only one shift and Mr Stewart told her that it was going to stay that way after she had called him upset and told him she needed more hours because she had a two-year-old son as a single mother to support. 4

[16] During her employment Ms Ilsley did not receive any written warnings.

[17] As part of her materials Ms Ilsley provided a series of payslips. The gross pay she had received for the 24 weeks’ prior to her dismissal (six months minus a period of two weeks) totalled $18,627.23, equating to an average of $776.13 per week gross.

[18] Reviewing the payslips provided by the Applicant for this 24-week period it is apparent that in the last few months she was earning significantly less than had previously been the case. The average pay for the last eight weeks of her employment was only $671.56 per week gross.

[19] Mr Dorairaj made a series of statements from the bar table, and has provided some material regarding the financial circumstances of the business, to the effect that the business is struggling financially. I accept generally that that is the case however the materials provided are not sufficiently focused for the Commission to have any clarity as to the effect on the viability of the business if the Commission issued an order for compensation.

Consideration

[20] Section 387 of the Act, below, sets out those matters the Commission must take into account when considering whether Ms Ilsley’s 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.”

Valid reason

[21] In this case there was no reason given for Ms Ilsley’s dismissal. The Respondent has consistently maintained it was not their intention that she be dismissed however the findings of the Commission are that Ms Ilsley was dismissed. 5

[22] There was no valid reason for Ms Ilsley’s dismissal.

Notification of the reason

[23] Ms Ilsley was not notified of the reason for her dismissal.

Opportunity to respond

[24] Ms Ilsley was not given any opportunity to respond to the reason for her dismissal.

Support person

[25] There were no discussions relating to Ms Ilsley’s dismissal and so no unreasonable refusal to allow a support person to be present.

Warnings about unsatisfactory performance

[26] Ms Ilsley was not given any warnings about unsatisfactory performance before her dismissal.

Size of the enterprise

[27] The Respondent’s enterprise is a medium-sized business which I accept has negatively impacted on the procedures followed in effecting the dismissal.

Impact of the absence of Human Resource management specialists or expertise on the procedures followed

[28] There is no evidence the Respondent has dedicated human resource management specialists or expertise. In this case this absence of such expertise has in all likelihood resulted in the procedural deficiencies that have occurred in this matter.

Other relevant matters

[29] Ms Ilsley was employed for just less than 12 months.

Conclusion

[30] I am satisfied that the dismissal of Ms Ilsley was unjust and unreasonable. Ms Ilsley has been unfairly dismissed.

Remedy

[31] Sections 391 and 392 of the Act provide directions to the Commission as to how it should determine the remedy where an employee has been unfairly dismissed. These are set out below.

“391 Remedy—reinstatement etc.

Reinstatement

(1) An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:

(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or

(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

(1A) If:

(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and

(b) that position, or an equivalent position, is a position with an associated entity of the employer;

the order under subsection (1) may be an order to the associated entity to:

(c) appoint the person to the position in which the person was employed immediately before the dismissal; or

(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

Order to maintain continuity

(2) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to maintain the following:

(a) the continuity of the person’s employment;

(b) the period of the person’s continuous service with the employer, or (if subsection (1A) applies) the associated entity.

Order to restore lost pay

(3) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.

(4) In determining an amount for the purposes of an order under subsection (3), the FWC must take into account:

(a) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for reinstatement; and

(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.

392 Remedy—compensation

Compensation

(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

Criteria for deciding amounts

(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer’s enterprise; and

(b) the length of the person’s service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that the FWC considers relevant.

Misconduct reduces amount

(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

Shock, distress etc. disregarded

(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.

Compensation cap

(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:

(a) the amount worked out under subsection (6); and

(b) half the amount of the high income threshold immediately before the dismissal.

(6) The amount is the total of the following amounts:

(a) the total amount of remuneration:

(i) received by the person; or

(ii) to which the person 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 employee 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 employee for the period of leave in accordance with the regulations.”

[32] In this case Ms Ilsley does not seek reinstatement but rather compensation. In this case I am satisfied that reinstating Ms Ilsley in all the circumstances would not be appropriate but rather I consider that an order for payment of compensation is appropriate.

[33] Turning to the requirements of section 392 of the Act. Mr Dorairaj has submitted that the Respondent’s financial position is poor and has provided some financial information to support this view however in my view that information is not sufficient for the Commission to conclude that a limited order for compensation would have a material effect on the viability of the Respondent’s enterprise.

[34] Relevantly in determining the amount of compensation that is appropriate the evidence is Ms Ilsley was employed less than 12 months.

[35] The Commission is required to assess how long Ms Iisley would have remained in employment had she not been dismissed. Relevantly the evidence is there was a change of management shortly before Ms Ilsley’s dismissal which resulted in a significant reduction in the hours she was rostered. Ms Ilsley had complained to Mr Stewart about the serious impact of this on her but to no avail. If the hours she was rostered on remained too few it is likely Ms Ilsley would have been forced to look elsewhere for employment. I also note the separation certificate authorised by Mr Dorairaj identified the reason for separation as unsatisfactory work performance which indicates some discontent with Ms Ilsley whether that was justified or not.

[36] Finally Ms Ilsley had only a relatively short period of employment before her dismissal. Considering all the circumstances my assessment is that Ms Ilsley would not have remained in employment for longer than 10 weeks had she not been dismissed when she was.

[37] The remuneration Ms Ilsley as a casual employee with variable hours would have received over this 10 weeks is not certain. Whilst the evidence is that over the 24 weeks’ prior to her dismissal her gross weekly pay averaged $776.13 per week it is apparent from her payslips that in the last few months of her employment Ms Ilsley was regularly earning less each week than was the case in previous months. The average pay for the last eight weeks of Ms Ilsley’s employment was $671.56 per week gross and in my view it is only this amount that Ms Ilsley would have been likely to receive each week had she not been dismissed.

[38] Consequently I determine that the remuneration Ms Ilsley would have been likely to receive if she had not been dismissed is 10 weeks’ pay at the rate of $671.56 gross per week making a total of $6,715.60 gross.

[39] Ms Ilsley has diligently sought to mitigate her loss by applying for many other positions since she has been dismissed. Ms Ilsley has only earned a very limited amount of remuneration since her dismissal and given that was for work she did at a time which was more than 10 weeks after her dismissal I will not deduct this from the compensation to be paid to her.

[40] There will be no reduction in the amount of compensation as a result of misconduct in this instance because there was no misconduct by Ms Ilsley.

[41] I note that section 392 (4) of the Act provides that the amount ordered by the Commission must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to Ms Ilsley by the manner of her dismissal. Consequently the amount of compensation to be ordered does not include any component for these matters.

[42] Noting the size of the Respondent’s enterprise and its financial circumstances it is appropriate for this payment to be made in two parts and I will order that an amount of $3,715.60 be paid within 14 days of the date of the order and the balance of $3,000 to be paid a further 14 days later.

[43] An Order [PR608051] to that effect will now be issued.

COMMISSIONER

Appearances:

S. Ilsley on her own behalf.

K. Dorairaj on behalf of the Respondent.

Hearing details:

2018.

Perth:

June 11.

Printed by authority of the Commonwealth Government Printer

<PR608050>

 1   [2018] FWC 1932 at [22] to [25].

 2   Exhibit A1 at paragraph 5.

 3   Exhibit A3 at paragraph 14.

 4   Exhibit A2 in the jurisdictional hearing before Commissioner Platt at paragraph 8.

 5   [2018] FWC 1932.