Soosan Kurian v Camp Australia Services Pty Ltd T/A Camp Australia

[2014] FWC 2168

[2014] FWC 2168

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Soosan Kurian
v
Camp Australia Services Pty Ltd T/A Camp Australia
(U2013/12334)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 2 APRIL 2014

Application for relief from unfair dismissal - resignation - jurisdictional objection dismissed - compensation amount to be determined..

Background

[1] Ms Soosan Kurian was employed by Camp Australia Services Pty Ltd (Camp Australia) from 30 March 2012. Ms Kurian says her employment was terminated unfairly on 20 July 2013. Camp Australia said that she resigned her employment on 19 July 2013.

[2] Ms Kurian was employed as a casual OSHC co-ordinator. She worked a split shift five days per week.

[3] Ms Kurian was on approved leave from 17 May 2013 until 21 June 2013. She reported for duty on 24 June 2013 but found another employee working as the co-ordinator and so she left the workplace.

[4] So much is not disputed.

Ms Lester’s evidence

[5] Ms Jane Lester was Ms Kurian’s supervisor. Ms Lester gave evidence that Ms Kurian had sought leave to go overseas to have a medical procedure. She had organised staff to replace her while she was away. There was no issue about her going on leave. Ms Lester said she told Ms Kurian that she would be required to provide a medical certificate upon her return.

[6] Prior to her return, Ms Lester attempted to call Ms Kurian but there was no answer. It was clear from Ms Lester’s evidence that these calls occurred at a time when Ms Kurian was still overseas. Ms Lester said that Ms Kurian was not aware that she was not to automatically return to her position. That was why Ms Lester was trying to contact her. Ms Lester was told by another staff member that Ms Kurian had been into work on 24 June 2013.

[7] Ms Lester rang Ms Kurian and told her that she wanted to meet with her. Ms Kurian asked her whether she was still working and whether they had employed someone else. Ms Lester did not answer these questions and simply told her that she wanted to meet with her face-to-face. Ms Lester was “pretty sure” that she asked for a medical certificate and organised to meet Ms Kurian at a cafe. On reflection Ms Lester decided that it would be more appropriate to meet Ms Kurian at head office and rang Ms Kurian to change the venue. Ms Kurian told her that she could not come to head office and Ms Lester said that Ms Kurian hung up. Ms Lester made no further attempt to contact Ms Kurian.

[8] Ms Lester could not remember whether Camp Australia had advertised Ms Kurian’s position in her absence. It was her evidence that Camp Australia advertised positions all the time. She did however admit that she had placed a new person in the position on a full-time, albeit casual, basis.

[9] Ms Lester could not say that had Ms Kurian provided a medical certificate she would have been returned to her position. However Ms Lester said that there were many other positions that she could have filled in the same area.

Ms Kurian’s evidence

[10] Ms Kurian denied receiving phone calls from Ms Lester prior to 24 June 2013. Ms Kurian did not return to Australia until 21 June 2013.

[11] Ms Kurian denied that she was ever asked to produce a medical certificate. When asked why she turned up for work on the 24 June 2013 when she wasn’t rostered, Ms Kurian replied that that was the date she was due back at work. Her hours of work did not change from week to week so she simply turned up at her rostered starting time. She asked the person who was there what was happening and she was told that this person was the manager and that she had answered an advertisement for the position on seek.com and that she was permanently appointed to the position.

[12] Ms Kurian said that after she attended for work, Ms Lester rang her. She told Ms Lester that she had a medical certificate and that she was fit to work. Ms Kurian said that when Ms Lester rang her later in the day she told her that she was not going back to her school and that they did not have any other schools in her area. 1 Ms Kurian asked her why but Ms Lester did not provide a response she simply told her she wanted to speak to her in person.

[13] Ms Kurian said that Ms Lester organised and cancelled three meetings with her. She denied that she was asked to meet at head office. Ms Kurian asked her what was going on and Ms Lester replied “nothing.”

[14] After the meeting on the 27 June 2013 was cancelled Ms Kurian contacted Mr Glen at head office to find out what was happening but he told her she needed to speak to Ms Lester. 2

[15] On 15 July 2013, Ms Kurian sent an email to Ms Kuti, the HR Manager, in which she wrote:

“I want to know my Job status and if I am no longer employed with Camp Australia please send me job separation certificate as early as possible and that will help me for everything in the future.”

[16] Ms Kuti replied on 16 July 2013 stating that:

“As you are aware, several attempts were made to contact you upon your return to Melbourne following elective surgery. As you were unwilling to respond, our assumption was that you did not wish to return to the role. If this is the case our Payroll Department will issue you with a separation certificate.”

[17] Ms Kurian replied on 19 July 2013 as follows:

“Can you please send me job separation certificate as early as possible.”

[18] Ms Kuti replied on the same day as follows:

“Thank you for your email. I accept your resignation and have now arranged for you to be sent a separation certificate.”

[19] Ms Kurian replied on 7 August 2013 as follows:

“Please note I have not resigned my job. If you have any such paper work or supporting documentation for my resignation please let me know. In my knowledge I have not resigned my job. In fact I contacted you and my area manager Jain Lester many times after my return from medical leave and there was no clear answer about my job from any of you.

In your email dated July 16, 2013 you mention that you made several attempts to contact me upon my return to Melbourne after my surgery, this is not true. If it is true that you sent me a reply and I sent an email enquiry my status of employment, other than that there was communication from your side.

I would like to know my job status immediately. Your immediate response in this matter will be highly appreciated.”

[20] On 8 August 2013, Ms Kuti replied saying:

“Jane attempted to call you on 20, 21, 24 and 27 June 2013 without success. On 19 July 2013, you emailed me a request (below) for a separation certificate. This is a certificate in which an employer provides basic employment details of a former employee who wishes to apply to the Federal Department of Social Security for unemployment benefits.

You would not ask for a separation certificate if you had neither left Camp Australia, nor resigned, hence my response I trust this clarifies your question.”

[21] When asked why she requested a separation certificate, Ms Kurian said she had no money and went to Centrelink who told her that she needed to provide a separation certificate. Ms Kurian did not ask Centrelink why they needed the form or what the form meant.

[22] Ms Kuti submitted that there were performance issues associated with Ms Kurian’s performance. Ms Lester did not give any evidence of any performance issues. A performance improvement plan dated 13 February 2013 was attached to the employer response. Ms Kurian said that Ms Lester told her that she was not to return to work as the co-ordinator but Ms Lester said she did not give Ms Kurian any information about what was happening.

[23] The employer’s response to the application contained information which was not supported by any evidence given at the conference and as such I am unable to conclude that there were any issues with Ms Kurian’s performance.

[24] I do not accept the submission contained in the employer’s response that Ms Kurian did not take any steps to enquire about her employment until 15 July 2013. Ms Lester was aware that Ms Kurian had attended work on 24 June 2013. It cannot be suggested that Ms Kurian refused to meet with Ms Lester. On Ms Lester’s evidence she agreed to meet her on the 24 June but Ms Lester cancelled the appointment. On Ms Kurian’s evidence Ms Lester cancelled a number of appointments. Further, both Ms Lester and Ms Kurian agreed that Ms Kurian was asking Ms Lester what was happening with her job and Ms Lester said she did not give Ms Kurian any information apart from telling her she was not returning to her school.

Did Ms Kurian resign from her employment?

[25] Ms Kurian, while employed as a casual employee, worked a regular pattern of work at one location. She had been appointed as a co-ordinator at that location. She took approved sick leave from her position and returned to work as expected on 24 June 2013. Ms Lester accepted that Ms Kurian had not been told that she was not to return to her position. That was why she tried to contact her before 24 June 2013. However it was clear from the evidence that any phone calls that were made before that date were made whilst Ms Kurian was still overseas.

[26] Ms Lester gave evidence that she told Ms Kurian that she would be required to provide a medical certificate upon her return and Ms Kurian did not provide a medical certificate. However, it was Ms Kurian’s unchallenged evidence that she had such a medical certificate however no such medical certificate was in evidence before me.

[27] In the end, Ms Lester and Ms Kurian did not have any conversation about what was happening because on Ms Lester’s own evidence, she wanted to have that conversation face-to-face.

[28] In the circumstances where a face-to-face meeting had not been arranged, one would have expected Camp Australia to have advised Ms Kurian formally that it did not intend rostering her for work until she had provided a medical certificate and had met to discuss the performance issues. It did not.

[29] It was Ms Kurian who made contact with Camp Australia and asked about her employment status.

[30] Camp Australia rely on Ms Kurian’s email of 19 July 2013 to support their submission that Ms Kurian had resigned. I do not accept this submission.

[31] Ms Kurian expected to return to her co-ordinator’s position upon her return from sick leave. She attended work and found someone else doing her job. She agreed to meet Ms Lester but Ms Lester changed the meeting arrangements. Camp Australia sought to rely on their attempts to contact Ms Kurian before she was due to return to work, yet it did so when it knew Ms Kurian was overseas.

[32] After cancelling one meeting, Ms Lester gave evidence that she asked Ms Kurian to meet her at the head office and Ms Kurian hung up. Ms Kurian denied doing so. I accept her evidence. Ms Kurian was keen to return to work, so much was evidenced by her attendance at work as normal on 24 June 2013. After her cancelled meetings she spoke to Mr Glen at head office to find out what was happening but was told that she had to speak to Ms Lester. Ms Lester took no further steps to contact Ms Kurian; she did not write or subsequently call her.

[33] No further steps were taken to contact Ms Kurian to discuss any issues Camp Australia might have had with her performance. No offers of alternative employment were made.

[34] It is therefore not surprising that, having not been provided with work upon her return, Ms Kurian contacted Centrelink. She was told that she needed a separation certificate to obtain benefits. She contacted Camp Australia and made it clear that she wanted to know about her job status. There was nothing in that email that could have caused Camp Australia to conclude that she had resigned.

[35] The reply email sent to Ms Kurian at that time falsely suggested that Ms Kurian had been unwilling to respond to their attempts to contact her. I can only assume that the author of the email had not been given the correct information, namely that Ms Kurian had attended work, agreed to meet with Ms Lester only to have the meetings cancelled and contacted Camp Australia to try and find out what was happening with her job.

[36] However, that email did advise Ms Kurian that if she did not wish to return Camp Australia they would issue her with a separation certificate and Ms Kurian then replied asking for the separation certificate. This, Camp Australia said, was her resignation.

[37] I accept that Ms Kurian did not intend her request for a separation certificate to be taken as a resignation.

[38] I also note that employers can be asked for separation certificates in circumstances other than termination such as when an employee has had a reduction in hours or has change from full time to casual employment. In those cases, the employer makes it clear on the form that there has not been a termination. Clearly Ms Kurian, as a casual employee who had not been offered work for three weeks after her return, was required by Centrelink to provide advice about her employment status.

[39] I do not accept that this was a resignation and as such Camp Australia’s jurisdictional objection is dismissed.

[40] There were no other jurisdictional objections to the application. Camp Australia is not a small business.

Was the termination of employment harsh, unjust or unreasonable?

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

Whether there was a valid reason for the dismissal related to Ms Kurian’s capacity or conduct (including its effect on the safety and welfare of other employees): s.387(a)

[42] Camp Australia accepted that if there was no resignation, the dismissal was harsh unjust or unreasonable. No submissions were made that there was a valid reason for the termination of Ms Kurian’s employment. There was no evidence put before the Commission that would support a finding that there was a valid reason for her termination.

Whether Ms Kurian was notified of that reason: s.387(b)

[43] Ms Kurian was never told why she was not permitted to return to her position or to another position at Camp Australia.

Whether Ms Kurian was given an opportunity to respond to any reason related to her capacity or conduct: s.387(c)

[44] Ms Kurian was never given an opportunity to respond.

Any unreasonable refusal by the employer to allow Ms Kurian to have a support person present to assist at any discussions relating to dismissal: s.387(d)

[45] Ms Kurian was not denied the opportunity to have a support person because no discussions occurred.

If the dismissal related to unsatisfactory performance—whether Ms Kurian had been warned about that unsatisfactory performance before the dismissal: s.387(e)

[46] The dismissal did not relate to unsatisfactory performance. Even accepting that there were performance issues, Ms Kuti made it clear that those issues would not have resulted in dismissal but to additional training and support being provided. In any event apart from the February performance management plan, no evidence was called to suggest that there were other performance issues or that this earlier issue had not been resolved.

The degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal: s.387(f)

[47] Camp Australia is not a small employer and its size had no impact on the procedures it followed in effecting the dismissal.

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)

[48] Camp Australia has dedicated human resources management personnel. After Ms Kurian’s attempts to find out why she was not permitted to return to her position after taking approved sick leave, it might be expected that someone would have spoken to her about her circumstances or at least sent her a letter outlining Camp Australia’s position in relation to her employment.

Any other matters that the Commission considers relevant: s.387(h)

[49] No submissions were made that there were any other relevant matters.

Conclusion

[50] Camp Australia accepted that if its jurisdictional objection was dismissed the termination of Ms Kurian’s employment was harsh, unjust or unreasonable. I agree.

Remedy

[51] Ms Kurian is not seeking reinstatement of her employment.

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

The effect of the order on the viability of the employer’s enterprise: s.392(2)(a)

[53] No submissions were made that any order would affect the viability of Camp Australia.

The length of Ms Kurian’s service with the employer: s.392(2)(b)

[54] Ms Kurian had worked for Camp Australia for a relatively short period of time. However, I am not prepared to specifically reduce the amount of compensation because of this and have taken this into account in assessing the general reduction for contingencies.

The remuneration that Ms Kurian would have received, or would have been likely to receive, if she had not been dismissed: s.392(2)(c)

[55] I consider that Ms Kurian would have continued working for Camp Australia for another two years. Ms Kuti submitted that while some staff were unresponsive to training aimed at improving performance, there is nothing to suggest that Ms Kurian would have been unresponsive.

The efforts of the person (if any) to mitigate the loss suffered by Ms Kurian because of the dismissal: s.392(2)(d)

[56] Ms Kurian gave some oral evidence about her attempts to find work. She had focused her job search on obtaining a teaching position as she is qualified to teach both primary and secondary students. She was not successful in obtaining ongoing employment but she had obtained some casual teaching work. She did apply for one job in after school care but had been unsuccessful. Ms Kuti made reference to offers of settlement made during conciliation. I have not had regard to that as no open offer was made to Ms Kurian.

The amount of any remuneration earned by Ms Kurian from employment or other work during the period between the dismissal and the making of the order for compensation: s.392(2)(e)

[57] At the time of this hearing Ms Kurian had worked four days as a casual teacher. No evidence was provided about her total earnings in this period. However, I have taken that into account in calculating the amount of compensation.

The amount of any income reasonably likely to be so earned by Ms Kurian during the period between the making of the order for compensation and the actual compensation: s.392(2)(f)

[58] Given my decision, this criteria is not relevant.

Any other matter that the Commission considers relevant: s.392(2)(g)

[59] I will deduct an amount of 15 percent for the possibility that Ms Kurian may have been made redundant or no longer been able to be employed as a co-ordinator and been demoted to a lesser paid position.

Conclusion

[60] Given my conclusion that Ms Kurian would have been employed for a further two years, even allowing for the deduction for monies earned and the amount of contingencies, the amount of compensation to be paid to Ms Kurian exceeds the compensation cap.

[61] The compensation cap for Ms Kurian is the amount of remuneration she received or would have received had she not been on leave without pay in the 26 weeks prior to her dismissal. I therefore order that Camp Australia pay this amount to Ms Kurian subject to deduction for taxation in accordance with law within 21 days of the final order in this matter.

[62] I direct the parties to confer about the amount to be paid and to provide to the Commission within seven days an agreed amount or, if they cannot agree, their calculations of the amount and any supporting evidence.

DEPUTY PRESIDENT

Appearances:

Mr J. Varghese and Ms S. Kurian for the Applicant

Ms M. Kuti for the Respondent

Hearing details:

2014:

Melbourne;

6 February.

 1 Exhibit A1 at [10].

 2 Ibid at [13].

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