Snezanka Siskovska v National Contractors Pty Ltd

[2014] FWC 1068

[2014] FWC 1068

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Snezanka Siskovska
v
National Contractors Pty Ltd
(U2013/2018)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 13 FEBRUARY 2014

Application for relief from unfair dismissal.

[1] Ms Snezanka Siskovska was employed by National Contractors Pty Ltd (National Contractors) until her employment was terminated without notice on 12 June 2013 for misconduct.

[2] National Contractors provided cleaners to businesses and Ms Siskovska was employed as the State Client Relationship Manager on a 12 month contract.

[3] National Contractors lodged a jurisdictional objection to the application as Ms Siskovska had identified National Contractors as having a trading name of Grouped Property Services. National Contractors submitted that National Contractors Pty Ltd trading as Grouped Property Services is not a legal entity. At the hearing, National Contractors were represented by Mr Ross Pucci. National Contractors accepted that it was the employer and it had been served with the application. I therefore dismiss the jurisdictional objection. The misdescription on the form of the trading name of the employer does not alter the fact that the claim was made against National Contractors and that they were on notice of the claim and the hearing.

[4] Ms Siskovska gave evidence that in about January 2013 National Contractors commenced paying her irregularly. In addition to her wages Ms Siskovska was paid petrol allowance. Ms Siskovska raised those concerns with here manager. 1 However despite repeatedly raising those concerns and facing significant period of time when she was not paid or paid late she continued to work and continued to incur expenses whilst performing work.2

[5] On 21 May 2013 Ms Siskovska wrote to Mr Pucci, the Chief Operating Officer with National Contractors, and told him that she was owed at least $8,072 and that she was facing difficulties meeting her financial obligations. 3 On 23 May 2013 she advised Mr Ross Pucci and Mr Enrico Pucci that she was experiencing “serious financial difficulties” and that despite raising the issue previously with them both it remained unresolved.4 Mr Ross Pucci said that the monies would be paid on the following Monday. On 27 May 2013, Ms Siskovska advised Mr Pucci that she was waiting for the money to be paid so that she could go on site for inspections.5 On 28 May 2013, National Contractors transferred $1,000 to Ms Siskovska’s account. It is not clear what this amount was for but it was less than Ms Siskovska was paid per fortnight, and less than she was owed.

[6] On 30 May 2013, Mr Pucci sent an email in which he noted that Ms Siskovska had not visited sites and performed her duties from 23 May 2013. Ms Siskovska responded to this email and advised that because she had not been paid she could not afford to pay for the petrol necessary for her to perform workplace visits. 6

[7] Sometime between 28 May 2013 and 31 May 2013, Ms Siskovska and Mr Pucci spoke and Mr Pucci advised Ms Siskovska that while she was doing a good job their budget did not allow for her position and that they would probably need to offer her a part time position or less salary but that this would be discussed when their HR person returned from leave. 7 Ms Siskovska did not indicate if she would accept this. Mr Pucci spoke about the fact that Ms Siskovska was not going to visit sites and when she raised the issue of the monies owed to her Mr Pucci referred to the $1000 that had been recently paid to Ms Siskovska. Ms Siskovska said she could not use that money to pay for petrol as she needed it to pay her mortgage.8 When she asked to be paid Mr Pucci said “Okay if you don’t like the work I will find someone else.9

[8] On 31 May 2013, National Contractors arranged to have Ms Siskovska’s company car and mobile phone and ipad collected. The person who collected the car signed a note that the car was in good condition when he collected it. 10 Mr Pucci later expressed concern that there had been a delay in returning the property caused by Ms Siskovska transferring data to her computer from the phone and computer. Mr Pucci advised that there would be an investigation into her concerns and advised her that someone else would perform her duties until further notice as she was “not prepared to adopt the dispute & grievance clause 24 part 1-3.” He advised that HR would return on 10 June and she would be contacted after that date.

[9] On 3 June 2013, Ms Siskovska provided a detailed response to Mr Pucci and outlined all the steps she had taken to resolve the dispute over her wages. Mr Pucci acknowledged the email and advised Ms Siskovska that her concerns would be addressed and a fair outcome resolved. Ms Siskovska replied advising that the non payment of the outstanding monies was causing her severe financial difficulties.

[10] On 11 June 2013, Ms Kristina Voytenko from Human Resources contacted Ms Siskovska to arrange a telephone conference call the next day however Ms Siskovska declined to participate advising she was unwell.

[11] On 12 June 2013, Ms Siskovska received a letter advising her that her employment had been terminated for misconduct, breach of confidentiality, damage to the company vehicle, refusing to return company property, not adhering to the dispute resolution procedure and abandonment of her job.

[12] There was no dispute that National Contractors owed Ms Siskovska a significant amount of money, Mr Pucci put the figure at $13,566. 11 Ms Siskovska put the figure at $16,420.17.12 The monies owed had not been paid at the date of the hearing. National Contractors tendered a record of payments made to Ms Siskovska since 6 December 2012.13 Those records show a history of late payments or missing payments during this period.

[13] Ms Siskovska gave evidence that she had been unsuccessful in finding alternative work. She said she had applied for ten jobs and had two interviews. 14

[14] National Contractors did not call any witnesses. Documents were tendered to support the claim that Ms Siskovska had breached her obligation to keep confidential documents confidential.

[15] Ms Siskovska admitted that she sent minutes of meeting, 15 information about a prospective client,16 and other information17 to her son. Documents were also tendered which showed that Ms Siskovska’s son assisted her with her work.18

[16] It was Ms Siskovska’s evidence that she needed her son to give her advice and it was her evidence that once National Contractors stopped paying her “she didn’t know what to do and [she started] to ask [her] son for everything to advise [her]. He was like my solicitor. 19

[17] Ms Siskovska accepted that she stopped doing site visits after 22 May 2013 but denied that she stopped performing work. She gave evidence that she remained in contact with clients by phone. 20

[18] National Contractors tendered a letter dated 16 January 2014 containing a complaint sent to Grouped Property Services Pty Ltd raising complaints about work performed by National Contractors on the AMF contract. The difficulty with this evidence is that the complaint post dates Ms Siskovska’s termination by six months.

[19] Mr Pucci submitted from the bar table that the company car had been damaged. He also alleged that the person who signed the receipt for the car which acknowledged it was undamaged at the time it was picked up was under duress when he signed the document. No evidence was called to support this allegation.

[20] National Contractors submitted that Ms Siskovska had abandoned her employment and that she had refused to visit sites even after some money had been paid to her. 21

Was the termination of employment harsh, unjust or unreasonable?

[21] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Fair Work Commission must take into account the following:

s387(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);

[22] I accept the submissions of Ms Siskovska that the real reason for the termination of her employment was because she complained about not getting paid her wages either at all or on time. I accept her evidence that it was only when she advised Mr Pucci that she could not continue visiting sites without being paid that he made the decision to terminate her employment. This was evident from the decision to remove the car, ipad and phone from Ms Siskovska on the day she was advised that National Contractors could not afford her position and that it would either have to reduce her pay or make her go part time. That decision was made on 31 May 2013. I do not accept that Ms Siskovska abandoned her employment. She was ready willing and able to perform her role but National Contractors was not willing to pay Ms Siskovska the monies owed so that she could put petrol in the car. I also accept that she continued to do what work she could by telephone.

[23] I do not accept the submissions that Ms Siskovska refused to return company property. Without warning and out of hours, National Contractors sent an employee to collect the vehicle, ipad and phone. Ms Siskovska’s request that she be permitted time to download personal information from the devices was not unreasonable. There was no evidence that Ms Siskovska breached any company policy by having personal information on the devices.

[24] I do not accept the submissions that Ms Siskovska damaged the company vehicle. This submission was not supported by evidence.

[25] I do not accept the submission that Ms Siskovska failed to comply with the dispute resolution procedure in her contract. The evidence established that Ms Siskovska attempted to resolve her dispute over the payment of wages from January 2013. National Contractors did not fulfil its side of the dispute resolution process.

[26] I do accept that Ms Siskovska sent information to her son. I accept that some of this information may have been confidential. I do not accept Ms Siskovska’s evidence that she did this because of the difficulties she faced getting National Contractors to pay her the monies owed. The documents forwarded to her son were not relevant to that issue.

[27] There was no evidence called by National Contractors about when they became aware that Ms Siskovska was sending documents to her son. Further there was no evidence, apart from assertions from the bar table that the information was confidential. While I find that some of the documents contained confidential information, not every breach of confidentiality justifies the termination of an employee’s employment.

[28] I have found that the real reason for the termination of Ms Siskovska’s employment was because she complained about not being paid and because she was unwilling to continue using her own funds to finance work visits. I find that for these reasons there was no valid reason for the termination of Ms Siskovska’s employment.

s387(b) whether Ms Siskovska was notified of that reason;

[29] I find that Ms Siskovska was not notified of the reason for her termination before the decision to terminate her employment was made. While Ms Voytenko wanted Ms Siskovska to participate in a phone conference on 11 June 2013 which Ms Siskovska declined to do, the first Ms Siskovska knew of her termination was when she received an email advising her of it on 12 June 2013.

s387(c) whether Ms Siskovska was given an opportunity to respond to any reason related to the capacity or conduct of the person;

[30] Some of the allegations set out in the letter of termination were never put to Ms Siskovska and she was provided with no opportunity to respond. She was provided with an opportunity to respond to the allegations that she had not complied with the dispute resolution procedure, that she had not returned company property and that she had abandoned her employment.

s387(d) any unreasonable refusal by the employer to allow Ms Siskovska to have a support person present to assist at any discussions relating to dismissal;

[31] There was no refusal to allow Ms Siskovska to have a support person present.

s387(e) if the dismissal related to unsatisfactory performance by the person—whether Ms Siskovska had been warned about that unsatisfactory performance before the dismissal;

[32] There was no issue that Ms Siskovska was dismissed for unsatisfactory performance.

s387(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;

[33] No submissions were made that the size of the employer’s enterprise was likely to have an impact on the procedures followed. There was no suggestion that this was a small business.

s387(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;

[34] National Contractors employ a human resources employee. This criterion is neutral.

s387(h) any other matters that FWA considers relevant.

[35] National Contractors admitted that it owed Ms Siskovska significant payments which had been raised with it since January 2013 and these underpayments were not rectified by the date of the dismissal.

Conclusion

[36] There was no valid reason for the termination of Ms Siskovska’s employment and Ms Siskovska was not afforded procedural fairness. I find therefore that the termination of Ms Siskovska’s employment was harsh, unjust and unreasonable.

Remedy

[37] Ms Siskovska is not seeking reinstatement of her employment.

[38] In assessing any amount in lieu of reinstatement, the Fair Work Commission is required to have regard to the following:

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

[39] No evidence was put before me that any order would affect the viability of the employer’s enterprise.

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

[40] Ms Siskovska was employed on a one year contract from 12 November 2012.

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

[41] Ms Siskovska was on an annual salary of $60,000 plus 9% superannuation. In addition she was paid a fuel allowance of $7,500 to cover petrol costs. Had she continued in employment until November 2012 she would have earned $25,000 plus $2,250 would have been paid in superannuation. I have not included the fuel allowance in the calculation as that was paid to reimburse fuel costs.

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

[42] Ms Siskovska gave evidence that she had applied for ten jobs in the seven months that she had been out of work. She has not received any income since the termination of her employment. I agree with the submissions of National Contractors that Ms Siskovska had not made sufficient effort to mitigate her loss. This warrants a reduction in the amount of compensation of 5%.

(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;

[43] Given my findings this criteria is neutral.

(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;

[44] Given my findings this criteria is neutral.

(g) any other matter that the Fair Work Commission considers relevant.

[45] Given that National Contractors had not fulfilled its contractual obligations to Ms Siskovska since January and had been unwilling to resolve the dispute over wages, and given Mr Pucci’s advice to Ms Siskovska that National Contractors would need to consider offering her part time work or a lower paid position, I have deducted 15% for the contingency that her employment may have ended prior to the end of the contract, either at her initiative or because her position was made redundant.

[46] Section 392(3) provides that if I am satisfied that Ms Siskovska’s misconduct contributed to National Contractors decision to terminate her employment I must reduce the amount of compensation. I have accepted that Ms Siskovska sent confidential information to her son and this breached her obligations to her employer. While I have found that this misconduct was not a valid reason for the termination of her employment it contributed to the decision to terminate her employment. I will therefore deduct 10% from the compensation.

Conclusion

[47] I therefore order that National Contractors pay Ms Siskovska $19,075 less applicable taxation within 21 days of the date of this decision.

DEPUTY PRESIDENT

Appearances:

S. Siskovska on her own behalf.

R. Pucci on behalf of the Respondent.

Hearing details:

2014.

Melbourne:

January 20.

 1   Exhibit A1 at Appendix A

 2   Ibid at [1.5]-[1.6]

 3   Ibid at Appendix A

 4   Ibid

 5   Ibid

 6   Ibid

 7   Transcript PN 224

 8   Exhibit A1 at Appendix A

 9   Ibid

 10   Ibid at Attachment 2

 11   Transcript PN 171

 12   Exhibit A2

 13   Exhibit R8

 14   Transcript PN 270-272

 15   Exhibit R1

 16   Exhibit R2

 17   Exhibit R3

 18   Exhibit R4 and R5

 19   Transcript PN 71

 20   Ibid PN 150-151

 21   Ibid PN 374

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