Zoe Zelman v Billboard Media
[2020] FWC 5
•2 JANUARY 2020
| [2020] FWC 5 |
| FAIR WORK COMMISSION |
EX-TEMPORE DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Zoe Zelman
v
Billboard Media
(U2019/9862)
DEPUTY PRESIDENT MASSON | MELBOURNE, 2 JANUARY 2020 |
Application for an unfair dismissal remedy.
[1] This matter was heard in Melbourne on 20 December 2019. At the conclusion of the proceedings, the matter was briefly adjourned following which I handed down the decision on transcript. This is the published version of the decision in transcript edited for style and clarity.
[2] On 3 September 2019, Ms. Zoe Zelman (the Applicant) made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy, alleging that she had been unfairly dismissed from her employment with Billboard Media (the Respondent). The Applicant seeks a remedy of compensation.
When can the Commission order a remedy for unfair dismissal?
[3] Section 390 of the FW Act provides that the Commission may order a remedy if:
(a) the Commission is satisfied that the Applicant was protected from unfair dismissal at the time of being dismissed; and
(b) the Applicant has been unfairly dismissed.
[4] Both limbs must be satisfied. I am therefore required to consider whether the Applicant was protected from unfair dismissal at the time of being dismissed and, if I am satisfied that the Applicant was so protected, whether the Applicant has been unfairly dismissed.
When is a person protected from unfair dismissal?
[5] Section 382 of the Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the employment;
(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high-income threshold.
When has a person been unfairly dismissed?
[6] Section 385 of the Act provides that a person has been unfairly dismissed if the Commission 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.
[7] I must consider each of those matters.
Background
[8] The uncontested factual background to the matter is as follows:
[9] The Applicant commenced employment on 3 July 2018. Her employment ceased on 13 August 2019. The Applicant was employed by the Respondent initially as an accounts receivable officer but proceeded to perform other administrative duties within the Respondent's business.
[10] At the time of the Applicant's termination of employment she was employed on an annual salary of $55,000 per annum on the basis of 38 hours per week. At the time of the Applicant's dismissal there were approximately 70 employees employed by the Respondent at its Cheltenham business.
The hearing
[11] There being contested facts involved, the Commission is obliged by s.397 of the FW Act to conduct a conference or hold a hearing.
[12] After considering the views of the Applicant and whether a hearing would be the most effective and efficient way to resolve the matter, I considered it appropriate to hold a conference for the matter (s.399 of the FW Act).
[13] The Applicant appeared and gave evidence on her own behalf.
[14] The Respondent did not attend the proceedings. I now wish to say something about the Respondent's non-attendance at the proceedings.
[15] The Respondent wrote to my Chambers on 13 December 2019 requesting that the matter be adjourned. In a response sent to the Respondent on my behalf by my Chambers on 16 December 2019, that request for an adjournment was declined. It was made clear in the correspondence to the Respondent that the matter was originally listed for arbitration in correspondence sent to parties on 18 October 2019. Simply stated, the Respondent had two months' notice of the hearing date of 20 December 2019.
[16] Confirmation was provided to the Respondent in that correspondence that the Director of the company, Mr Randall Shreeve was required to attend the hearing and confirmation was sought from the Respondent that he would be attending. It was foreshadowed in that correspondence that in the absence of confirmation from the Respondent that the director would be attending, it was my intention to issue an order for Mr Randal Shreeve to appear. No such confirmation was provided by the Respondent.
[17] Further correspondence was received from the Respondent on 19 December 2019 again urging that the matter be adjourned. It set out various reasons why it sought the adjournment but simply stated, it was claimed to be due to business and operational requirements that would prevent the attendance of representatives of the company. In response to that correspondence my Chambers again wrote to the Respondent and advised that after considering the Respondent's further request for an adjournment of proceedings that request was declined.
[18] Prior to that correspondence having been received from the Respondent on the 19 December 2019, the Commission had issued orders on 18 December 2019 for Mr Randal Shreeve to attend the proceedings. The Respondent’s correspondence to my Chambers on 19 December 2019 also requested that the order for Mr Shreeve to attend be revoked. That request was also declined.
[19] My Chambers again stated on my behalf the reasons why the Respondent’s requests were declined. They were; the Respondent was notified of the hearing listing in correspondence dated 18 October 2019, the Respondent had eight weeks' notice of the hearing and had had ample opportunity to prepare its case or seek an adjournment at an earlier point in time. Furthermore, a delay in the hearing would, because of the schedule of my matters in the new year, have delayed the proceedings until at least early February 2020. In my view, such a delay would have unreasonably prejudiced the Applicant. It was confirmed to the Respondent in that correspondence that the hearing would proceed at 10am on 20 December 2019 as listed.
[20] Further correspondence was received, from the Respondent, at 8.45 am on 20 December 2019 advising with regret that the workflow of the Respondent made it impossible for it to attend the arbitration hearing that day. In response to that correspondence at 9.17 am on 20 December 2019 the Commission again wrote to the Respondent and advised as follows:
“Section 677 of the Fair Work Act provides that a failure of a person to attend before the Fair Work Commission, where so ordered, is an offence, under the Fair Work Act, which carries a penalty of imprisonment of up to six months.”
[21] Mr Shreeve, it was noted in the correspondence, had been ordered to attend the proceedings. It was also drawn to the Respondent's attention that section 600 of the Act also allows the Fair Work Commission to determine a matter in the absence of a person who has been required to attend before it.
[22] Finally, it was again confirmed that the adjournment request was declined and that the matter would proceed to be heard and determined. The fact that Mr Shreeve was ordered to attend the proceedings but did not attend is a matter that will be referred to the General Manager of the Fair Work Commission for appropriate investigation and if deemed necessary, further action.
[23] I just say in conclusion, on that point, that the attitude of the Respondent to these proceedings has in my view been contemptuous and deserves censure.
Submissions
[24] The Applicant filed submissions in the Commission on 19 November 2019. In response the Respondent filed submissions in the Commission on 9 December 2019.
Has the Applicant been dismissed?
[25] It is apparent from reviewing that material, that there is a threshold issue to be determined and that is whether the Applicant has been dismissed from her employment.
[26] Section 386(1) of the FW Act provides that the Applicant has been dismissed if:
(a) the Applicant’s employment with the Respondent has been terminated on the Respondent’s initiative; or
(b) the Applicant has resigned from her employment but was forced to do so because of conduct, or a course of conduct, engaged in by the Respondent.
[27] Section 386(2) of the FW Act sets out circumstances where an employee has not been dismissed, none of which are presently relevant.
[28] The Respondent in its submissions and material filed prior to the proceedings, contested the Applicant’s claim that she had been dismissed and submitted that she had resigned on 13 August 2019. It is therefore necessary for me to determine the nature of the termination of employment as a threshold issue.
[29] The Applicant gave evidence that some six months after her employment commenced, she was promoted and undertook a range of additional duties within the organisation and was well-regarded by her employer. Her duties included accounts receivable, accounts payable and other general administrative duties within the business. 1
[30] The Applicant gave evidence that in the week prior to 13 August 2019 she had been absent from work due to illness and had been working from home. Sick leave certificates were, according to the Applicant, furnished to the HR Manager of the business Mr Greg Raines. 2
[31] Despite continuing to feel unwell she came into work on the morning of 13 August 2019 and had indicated to Mr Raines that in doing so she expected to work half a day despite feeling unwell. The Applicant left the workplace on or around lunch time on 13 August 2019 as she continued to feel unwell. In doing so, she didn't alert the HR manager or anyone else for that matter that she was leaving the workplace having previously indicated to Mr Raines of her intention to do so after working half a day. 3
[32] The Applicant also referred in her evidence to the background to the separation of her employment from the Respondent. She referred to inappropriate conduct and behaviour by various employees of the Respondent including an engineer by the name of “Richard”. She referred to inappropriate comments that he had made to her and she stated that she felt uncomfortable in the workplace in his presence. 4 She also stated in her evidence that a security camera had been positioned in the office in which she and the HR Manager Mr Raines occupied, and that the camera had been focused on her. She states it was her belief that the security camera had been placed up in the office during her absence on sick leave.5
[33] The Applicant referred to previous complaints she had made verbally to Mr Raines in relation to “Richard”, and also a written complaint. 6
[34] On 13 August 2019 the Applicant left at lunch time prior to 1 pm. She states that Mr Raines was aware she would be only working half a day. She also states that she never spoke to Mr Shreeve on 13 August 2019 and that he was not in the office at the time she departed the workplace.
[35] At approximately 2.30 pm in the afternoon she received an email from Mr Raines. That email stated as follows:
“Dear Ms Zelman,
Thank you for your resignation. We accept your notice as of today's date. We will be arranging the payment of your entitlements in the next pay run. Should you wish to discuss this matter further, please contact me on the number below.” 7
[36] On receipt of that email Ms Zelman states that she called Mr Raines immediately. She states that she advised Mr Raines that she had not resigned and did not understand why the email had been sent. In response she states that Mr Raines explained that Mr Shreeve had come in later that day after she had left and had sat down with Mr Raines to compose the email to which I have referred above. 8
[37] Ms Zelman was adamant in her evidence that she did not resign and had told Mr Raines that during their telephone conversation. 9 She confirmed that she received a weeks' pay in lieu of notice but had not received a separation certificate.10 No evidence was provided by any company representative or witnesses in relation to the circumstances of the Applicant's separation of employment.
[38] I found the Applicant to be genuine and credible in her evidence. I have no reason to doubt the accuracy or honesty of her evidence. There being no contrary evidence I have no hesitation in accepting the Applicant’s evidence. I am satisfied that the Applicant did not resign from her employment with the Respondent. On the Applicant's evidence, the alleged resignation was a fabrication by the Respondent, and I accept that evidence.
[39] Having considered the evidence I am satisfied that the Applicant has been dismissed within the meaning of section 385 of the Fair Work Act.
Initial matters
[40] I now turn to deal with some further preliminary matters.
[41] Under section 396 of the FW Act, the Commission is obliged to decide the following matters 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.
Was the application made within the period required?
[42] Section 394(2) requires an application to be made within 21 days after the dismissal took effect. It is not disputed, and I find that the Applicant was dismissed from her employment on 13 August 2019 and made the application on 3 September 2019, that being a period of 21 days. I am therefore satisfied that the application was made within the period required in subsection 394(2).
Was the Applicant protected from unfair dismissal at the time of dismissal?
[43] I have set out above when a person is protected from unfair dismissal.
Minimum employment period
[44] It was not in dispute and I find that the Respondent is not a small business employer, having 15 or more employees at the relevant time.
[45] Further, it was not in dispute and I find that the Applicant was an employee who commenced their employment with the Respondent on 3 July 2018 and was dismissed on 13 August 2019, a period in excess of the six-month minimum qualifying period. I am therefore satisfied that, at the time of dismissal, the Applicant was an employee who had completed a period of employment with the Respondent of at least the minimum employment period.
Modern award coverage
[46] I now turn to consider whether the Applicant was covered by a modern award or enterprise agreement or was below the remuneration threshold.
[47] Whist the Applicant was unclear in terms of award coverage, I find that at the time of the dismissal the Applicant was covered by an award, that being the Clerks - Private Sector Award 2010 11 having regard to her duties and the classification that she occupied.
[48] I am therefore satisfied that at the time of the dismissal the Applicant was a person protected from unfair dismissal.
Was the dismissal consistent with the Small Business Fair Dismissal Code?
[49] I now turn to consider whether the dismissal was consistent with the Small Business Fair Dismissal Code.
[50] Section 388 of the FW Act provides that a person’s dismissal was consistent with the Small Business Fair Dismissal Code if:
(a) immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person’s employer was a small business employer; and
(b) the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal.
[51] As mentioned above, I find that the Respondent was not a small business employer within the meaning of section 23 of the Fair Work Act at the relevant time, having in excess of 14 employees including casual employees engaged on a regular and systematic basis. I am therefore satisfied that the Small Business Fair Dismissal Code does not apply as the Respondent is not a small business employer within the meaning of the Fair Work Act.
Was the dismissal a case of genuine redundancy?
[52] I also now turn to consider whether the dismissal was a case of genuine redundancy. Under s.389 of the FW Act, a person’s dismissal was a case of genuine redundancy if:
(a) the 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.
[53] It was not in dispute and I find that the Applicant’s dismissal was not due to the Respondent no longer requiring the Applicant’s job to be performed by anyone because of changes in the operational requirements of the Respondent’s enterprise.
[54] I am therefore satisfied that the dismissal was not a case of genuine redundancy.
[55] Having considered each of the initial matters, I am required to consider the merits of the Applicant’s application.
Was the dismissal harsh, unjust or unreasonable?
[56] Section 387 of the FW Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission 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.
[57] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me. 12
[58] I set out my consideration of each below.
Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct?
[59] In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded” 13 and should not be “capricious, fanciful, spiteful or prejudiced.”14 However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.15
[60] Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination.16
“The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.” 17
[61] The Applicant submitted that there was no valid reason for the dismissal related to the Applicant's capacity or conduct. She gave evidence that no reason was advanced by the Respondent for her dismissal. 18 She gave further evidence, as I have previously recounted, that she did not, contrary to the Respondent's submissions, resign from her employment.
[62] There is simply no evidence before me as to there being any capacity or conduct issues that would have justified the dismissal of the Applicant. Simply stated, there is no valid reason to justify the dismissal of the Applicant.
[63] I find that there was no valid reason for dismissal related to the Applicant's capacity or conduct. This weighs heavily against a finding that the dismissal was not unfair.
Was the Applicant notified of the valid reason?
[64] As I am not satisfied that there was a valid reason related to dismissal, this factor is not relevant to the present circumstances. 19
Was the Applicant given an opportunity to respond to any valid reason related to their capacity or conduct?
[65] I turn now to consider whether the Applicant was given an opportunity to respond to any valid reason, related to her capacity or conduct. As I found that there was not a valid reason related to dismissal, this factor is again, not relevant to the present circumstances. 20
Did the Respondent unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal?
[66] I turn to consider whether the Respondent unreasonably refused to allow the Applicant to have a support person present to assist at discussions relating to the dismissal. In the circumstances of the Applicant's dismissal, the opportunity for a support person was somewhat moot. It is, therefore, a neutral factor.
Was the Applicant warned about unsatisfactory performance before the dismissal?
[67] The Applicant gave evidence that at no point had she been counselled or warned in relation to her performance. 21 The dismissal did not relate to unsatisfactory performance; therefore, this factor is not relevant in the present circumstances.
To what degree would the size of the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal?
[68] The Applicant states that the employer did not go through proper procedures. It's hard to see that any procedure at all was followed. Nevertheless, the Applicant didn't submit that the size of the enterprise was likely to impact on the procedures followed in affecting her dismissal and I find that the size of the Respondent's enterprise had no such impact. Put more simply, the size of the enterprise was no excuse for the procedure that was followed by the employer.
To what degree would the absence of dedicated human resource management specialists or expertise in the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal?
[69] I now turn to consider to what degree the absence of dedicated human resource management specialists or expertise in the Respondent's enterprise was likely to have impacted on the procedures followed in affecting the dismissal.
[70] The evidence was clear that the Respondent has a HR Manager in its business, therefore I find that the Respondent's enterprise did not lack dedicated human resource management specialists and expertise and therefore there can be no excuse for or mitigation of the process that was followed by the Respondent.
What other matters are relevant?
[71] Section 387(h) goes to other matters that I may take into account when considering whether the dismissal was harsh, unjust or unreasonable.
[72] The Applicant gave evidence that during her employment with the Respondent she had been subject to sexual harassment, innuendo and inappropriate comments. 22 She states that on at least two occasions she made verbal complaints and a written complaint to the HR manager, Mr Raines, in relation to that harassment. No investigation was undertaken according to the Applicant. If that be the case, then that reflects poorly indeed on the Respondent.
[73] No employee be that a female employee of a young age, or any other age, or a male employee, should have to work in an environment where they are subject to inappropriate conduct. The nature of the environment in which the Applicant worked, on her evidence, which I have no reason to doubt, is such that she was exposed to inappropriate conduct from male work colleagues. This reflects poorly on the management of the Respondent and is an aggravating factor in the matter of the termination of the Applicant's employment. I find that those circumstances further weigh in favour of a conclusion that the dismissal was harsh, unjust or unreasonable.
Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust or unreasonable?
[74] I have made findings in relation to each matter specified in section 387 as relevant. I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable. 23
[75] I am not satisfied that there was a valid reason for the Applicant's dismissal. The process followed by the employer lacked procedural fairness, if it can be called a process. The fact that this occurred in circumstances where the employer had a HR manager involved is troubling indeed.
[76] The size of the employer's business, on the evidence of the Applicant, of approximately 70 employees, cannot be used as an excuse for the manner in which the Applicant's employment came to an end. There was a HR Manager, which ought to have assisted the employer ensure appropriate processes were in place. Regrettably that did not occur.
[77] Finally, as I have found, the environment in which the Applicant worked is in my view a relevant background to the termination of employment and weighs in favour of the Applicant's termination being unfair.
[78] Having considered each of the matters specified in section 387 of the Fair Work Act, I am satisfied that the dismissal of the Applicant was harsh, unjust and unreasonable.
Conclusion
[79] In light of my findings above I am satisfied that the Applicant was unfairly dismissed within the meaning of section 385 of the FW Act.
[80] Having reached the above finding, I am now required to turn my mind to remedy. As I stated at the outset, the Applicant seeks compensation. There is however insufficient material before me at this stage to determine the question of remedy. I intend therefore to issue a decision reflecting my finding that the Applicant’s dismissal was unfair which will shortly be provided to the Applicant and the Respondent. I will then issue directions to the Applicant and the Respondent in relation to the filing of submissions and materials going to the question of remedy.
DEPUTY PRESIDENT
Appearances:
Z. Zelman on her own behalf
Hearing details:
2019
Melbourne
20 December
Printed by authority of the Commonwealth Government Printer
<PR715665>
1 Transcript at PN53-PN54
2 Ibid at PN60-PN63
3 Ibid at PN64-PN65, PN79
4 Ibid at PN70
5 Ibid at PN70, PN77
6 Ibid at PN71
7 Exhibit A2, Email from Mr Greg Raines dated 13 August 2019
8 Transcript at PN85-PN89
9 Ibid at PN93
10 Ibid at PN95-PN101
11 MA000002
12 Sayer v Melsteel Pty Ltd[2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].
13 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
14 Ibid.
15 Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681, 685.
16 Edwards v Justice Giudice [1999] FCA 1836, [7].
17 King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24].
18 Transcript at PN106-PN107
19 Chubb Security Australia Pty Ltd v Thomas Print S2679 (AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 2000), [41]; Read v Cordon Square Child Care Centre [2013] FWCFB 762, [46]-[49].
20 Chubb Security Australia Pty Ltd v Thomas Print S2679 (AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 2000), [41]; Read v Cordon Square Child Care Centre [2013] FWCFB 762, [46]-[49].
21 Transcript at PN112
22 Transcript at PN121-PN122
23 ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]–[7].
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