Tracy Mason v Albury Wodonga Community Network Incorporated

[2015] FWC 1745

[2015] FWC 1745

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Tracy Mason
v
Albury Wodonga Community Network Incorporated
(U2014/9522)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 13 MARCH 2015

Application for relief from unfair dismissal.

[1] Ms Tracy Mason claims that the termination of her employment by the Albury Wodonga Community Network Incorporated (the Association) was unfair.

[2] The Association did not file a response to the application nor did any representative attend the hearing of this matter.

[3] Ms Wendy Grove, who was the public officer of the Association, advised on 28 October 2014 that the Association no longer existed and all the members of the Board had resigned.

[4] The advice stated that the Board had asked the Fair Work Commission to appoint an administrator. Of course the Commission plays no role in the administration of incorporated associations. There was no evidence that the Association had been placed in administration in accordance with the Associations Incorporations Act 2009 (NSW).

[5] The notices of listing were sent to the registered address of the Association. Those notices were returned to the Commission. However I am satisfied that the notices were served properly and that the Association was on notice of the hearing.

[6] Ms Mason was employed as an Aboriginal Community Development Manager for 3.5 years. She worked a 70 hour fortnight.

[7] Ms Mason received an email on 8 August 2014 from Ms Angelina Moore-Tabuteau the CEO advising that she was on two weeks leave. The same day she also received an email from Ms Patricia Cerminara, a director, advising the Chair was also taking leave. She provided contact numbers of directors if any issues arose during this time.

[8] In the week of 25 August 2014, Ms Mason was on approved paid study leave.

[9] On 28 August 2014, she received an email advising that the CEO and Chair were no longer with the Association.

[10] On 1 September 2014, Ms Mason received a phone call from a staff member of the Council who advised her that the Association may fold.

[11] On 2 September 2014, Ms Mason emailed Mr Michael Whiteside, a director of the Association, asking what was happening. Mr Whiteside told her that the Association was likely to be wound up.

[12] On 3 September 2014, Ms Mason contacted Ms Megan McMahon from the NSW Department of Premier and Cabinet who advised her that she had no knowledge of what was happening.

[13] On 4 September 2014, Ms Mason was sent an email by Mr Whiteside who told her that the funding for the project she worked on expired in December 2014 but that Ms McMahon had told him that the program will continue until funding runs out. He advised her to contact Ms McMahon about this.

[14] On 4 September 2014, Ms Mason sent an email to Ms Cerminara seeking further information. She spoke to her by phone on 5 September 2014 and Ms Cerminara advised that the project was being transferred and she should speak to Ms McMahon. Ms Mason phoned Ms McMahon who told her that she should not have been told to contact her about these issues. Ms Mason told Ms McMahon that she wanted to be paid her entitlements. Ms Mason then emailed Ms Cerminara asking that she be paid her redundancy pay. Ms Cerminara advised her that she was no longer a director.

[15] Ms Mason attended work late on 8 September 2014 and Ms Cerminara was present and told her she was meant to be at work. Ms Mason advised Ms Cerminara that she was unwell and she attended a medical practitioner who declared that she was unfit to work from 8- 12 September 2014. A further medical certificate was issued for 15-19 September 2014.

[16] On 26 September 2014, Ms Mason was told by Ms McMahon that Ms Cerminara had informed her that the Board was in the process of winding up the Association.

[17] Ms Mason emailed her time sheet for the week ending 22 September 2014 to the Association and advised that she had not been paid whilst on sick leave.

[18] Ms Mason was given no notice of termination, nor was she paid in lieu of notice or redundancy pay.

[19] On 15 October 2014, Ms McMahon advised Ms Mason that she was advised that an administrator was being appointed and she needed to contact the NSW Office of Fair Trading Legal Department regarding her entitlements.

[20] On 6 January 2015, the NSW Office of Fair Trading advised that no administrator had been appointed. At the time of the hearing the Association was still registered.

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 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] The Association provided no explanation for the termination of Ms Mason’s employment. I am therefore unable to find that there was a valid reason for the termination of her employment.

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

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

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

[24] Ms Mason was not given any opportunity to respond.

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

[25] No such discussions took place.

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

[26] The dismissal was not related to her performance or conduct.

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;

[27] No submissions were made in relation to this criterion.

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;

[28] The Association is an unincorporated association and there is no evidence that it had human resource management specialists or expertise. However I am unable to conclude that this explains the procedure adopted by the Board. The Board members showed no regard to their obligations as employers.

s387(h) any other matters that the Commission considers relevant.

[29] Ms Mason was terminated without notice or explanation.

Conclusion

[30] For the reasons set out above I find that the termination of Ms Mason’s employment was harsh, unjust and unreasonable.

[31] While it was not put that Ms Mason’s position had been made redundant given the evidence I can only conclude that when the Association ceased to operate her position was redundant. However there was no consultation with Ms Mason and hence this could not be a genuine redundancy.

[32] There was no valid reason for the termination of her employment and she was denied any semblance of procedural fairness. I understand that people get involved in not for profit associations to improve the lives of people in the community and that board members do so in a voluntary capacity. However employees who work for such organisations are entitled to be treated with respect and dignity. Here the Board did not even give Ms Mason the courtesy of telling her that her employment had been terminated. The failure to pay the outstanding entitlements made her situation more difficult.

Remedy

[33] Ms Mason is not seeking reinstatement of his employment.

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

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

[35] It is clear that the Association has ceased to function. There was no evidence about any impact that an order would have on the viability of the Association.

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

[36] Ms Mason had been employed for 3.5 years. I do not consider there is any reason to make any adjustment to the amount of compensation.

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

[37] Ms Mason submitted that had she not been dismissed she would have remained in employment for the foreseeable future. This is difficult to accept given the evidence filed by Ms Mason that at least from 22 September 2014 the Association has ceased to function. Ms Mason has not performed work for the Association after that date. I find that Ms Mason would not have remained in employment after that date because irrespective of the legal status of the Association it had ceased to operate. I am therefore unable to conclude that she would have received any remuneration after that date. At the date her employment was terminated, she should have been paid her outstanding entitlements including unpaid wages, sick leave and redundancy pay. However those are not amounts she would have been paid had she not been dismissed.

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

[38] Evidence was given that Ms Mason applied for new positions but had not been successful.

(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;

[39] Given my decision this is not a relevant consideration.

(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;

[40] This criterion is not relevant.

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

[41] Ms Mason has five dependent children and the loss of her employment has had a significant impact on her personal life. Ms Mason was last paid on 28 August 2014.

[42] It was submitted that Ms Mason should be awarded the maximum compensation available.

Conclusion

[43] The Commission in awarding compensation is not able to order the Association pay monies that are payable to her under her contract of employment, the award or the National Employment Standards. From the evidence before me it is clear that she has a claim for outstanding entitlements. The difficulty in this case is that Ms Mason would not have remained in employment for longer than she did because the Association ceased to function. In those circumstances I am unable order any compensation be paid to Ms Mason.

DEPUTY PRESIDENT

Appearances:

F. Rainey for the Applicant.

No appearance for the Respondent.

Hearing details:

2015.

Wodonga:

10 February.

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<Price code C, PR561977>