| [2022] FWC 782 [Note: a variation has been issued to this document] |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Elizabeth McCallum
v
Everstone Pty Ltd
(U2021/6660)
COMMISSIONER MATHESON |
SYDNEY, 8 APRIL 2022 |
Application for an unfair dismissal remedy – unsatisfactory performance – valid reason for dismissal – no notification of reason for dismissal – no opportunity to respond to reason for dismissal – no warning given prior to dismissal – Applicant unfairly dismissed – reinstatement inappropriate – compensation ordered.
[1] On 28 July 2021, Ms Elizabeth McCallum (Applicant) made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy, alleging that she had been unfairly dismissed from her employment with Everstone Pty Ltd (Respondent). The Applicant seeks financial compensation.
[2] 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.
[3] 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.
[4] Section 382 of the FW 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.
[5] Section 385 of the FW 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.
[6] The uncontested factual background to the matter is as follows:
• The Applicant was dismissed from her employment by the Respondent on 7 July 2021. 1
• The Applicant was paid $1,155.00 per week at the time of her dismissal, exclusive of superannuation. 2
• The Respondent employed 15 or more employees at the time the Applicant was dismissed. 3
[7] By way of summary, the Applicant submits that there was no valid reason for the dismissal related to conduct or capacity, there were deficiencies in procedural fairness in effecting the dismissal and the dismissal was harsh in the circumstances. The Applicant submits that in these circumstances the dismissal was harsh, unjust and/or unreasonable and was unfair.
[8] By way of summary, the Respondent submits that the dismissal was fair and that the dismissal was on account of unsatisfactory work performance.
[9] There being contested facts involved, the Commission is obliged by s.397 of the FW Act to conduct a conference or hold a hearing.
[10] After taking into account the views of the Applicant and the Respondent and whether a hearing would be the most effective and efficient way to resolve the matter, I considered it appropriate to hold a hearing for the matter (s.399 of the FW Act). Accordingly, the matter was listed for hearing on 14 January 2022 (Hearing).
Permission to appear
[11] The Respondent was self-represented at the Hearing.
[12] The Applicant sought to be represented before the Commission by a paid agent, Mr Garry Dircks.
[13] Relevantly, s.596(1) of the FW Act provides that a party may be represented in a matter before the Commission by a lawyer or paid agent only with the permission of the Commission.
[14] Section 596(2) provides that the Commission may grant permission for a person to be represented by a lawyer or paid agent in a matter before the Commission only if:
(a) it would enable the matter to be deal with more efficiently, taking into account the complexity of the matter; or
(b) it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or
(c) it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.
[15] The decision to grant permission is not merely a procedural step but one which requires consideration in accordance with s.596 of the FW Act. 4 The decision to grant permission is a two-step process. First, it must be determined if one of the requirements in s.596(2) have been met. Secondly, if the requirement has been met, it is a discretionary decision as to whether permission is granted.5
[16] On the question of representation, the Applicant submitted that:
(a) it would enable the matter to be deal with more efficiently, taking into account the complexity of the matter; or
(b) it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively as the Applicant has not had previous experience in such matters.
[17] The Respondent did not object to the Applicant being represented by a paid agent.
[18] Having considered those matters and the materials filed, I determined that allowing the Applicant to be represented by a paid agent would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter.
[19] I have therefore decided to exercise my discretion to grant permission for the Applicant to be represented.
[20] Accordingly, at the Hearing, the Applicant was represented by Mr Dircks and the Respondent was self-represented.
Witnesses
[21] The Applicant gave evidence on her own behalf. 6
[22] The following witnesses gave evidence on behalf of the Respondent:
• Ms Fiona Zou, Director of the Respondent; 7
• Mr Joseph Audet, National Sales Director of the Respondent; 8
• Ms Amanda Collard, Customer Service Team Leader of the Respondent; 9 and
• Ms Diana Wang, Senior Customer Service Officer of the Respondent. 10
Submissions
[23] The Applicant filed submissions in the Commission on 1 December 2021. The Respondent filed submissions in the Commission on 15 December 2021. Final written submissions were filed by the Applicant on 29 December 2021.
[24] A threshold issue to determine is whether the Applicant has been dismissed from her employment.
[25] 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 their employment but was forced to do so because of conduct, or a course of conduct, engaged in by the Respondent.
[26] Section 386(2) of the FW Act sets out circumstances where an employee has not been dismissed, none of which are presently relevant.
[27] There was no dispute and I find that the Applicant’s employment with the Respondent terminated at the initiative of the Respondent.
[28] I am therefore satisfied that the Applicant has been dismissed within the meaning of s.385 of the FW Act.
[29] Under s.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?
[30] Section 394(2) requires an application to be made within 21 days after the dismissal took effect.
[31] The Applicant was dismissed from her employment on 7 July 2021 and made the application on 28 July 2021. 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?
[32] I have set out above when a person is protected from unfair dismissal.
Minimum employment period
[33] 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. 11
[34] It was not in dispute and I find that the Applicant was an employee.
[35] Pursuant to my earlier decision in this matter, 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. 12
[36] It was not in dispute and I find that, at the time of dismissal, the sum of the Applicant’s annual rate of earnings (being $60,060.00), worked out in accordance with regulation 3.05 of the Fair Work Regulations 2009, was less than the high income threshold, which, for a dismissal taking effect on or after 1 July 2021, is $158,500.00. 13
[37] I am therefore satisfied that, at the time of dismissal, the Applicant was a person protected from unfair dismissal.
Was the dismissal consistent with the Small Business Fair Dismissal Code?
[38] 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.
[39] As mentioned above, I find that the Respondent was not a small business employer within the meaning of s.23 of the FW Act at the relevant time, having in excess of 14 employees (including casual employees employed on a regular and systematic basis).
[40] 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 FW Act.
Was the dismissal a case of genuine redundancy?
[41] 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.
[42] 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.
[43] I am therefore satisfied that the dismissal was not a case of genuine redundancy.
[44] Having considered each of the initial matters, I am required to consider the merits of the Applicant’s application.
[45] 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.
[46] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me. 14
[47] I set out my consideration of each below.
Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct?
[48] In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded” 15 and should not be “capricious, fanciful, spiteful or prejudiced.”16 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.17
[49] Consideration of this criterion requires examination of whether there was a valid reason for an employee’s dismissal related to the person’s capacity or conduct.
The Respondent’s case regarding valid reason
[50] The Respondent submitted that it dismissed the Applicant on the grounds of unsatisfactory work performance. The performance issues that the Respondent submits resulted in the Applicant’s dismissal are described in the Respondent’s submissions as follows: 18
• “Attitude and manner on the phone was rude. Received continuous complaints from customers.”
• “Could not do touch‐type, slow on computer, sorting orders, etc which affected the whole team.”
• “Can not perform multi task at the same time.”
• “Didn’t follow the supervisor and senior co‐worker’s instruction on work procedure, always did the work in her own way.”
[51] In support of these contentions, Ms Zou’s evidence was that: 19
• Ms Zou had monitored the Applicant’s work performance by consulting with Mr Audet, Ms Collard and Ms Wang.
• In March 2021, she spoke to Ms Collard about the Applicant. Ms Collard informed her that the Applicant “was quite slow, hasn’t started much, only receiving phone calls, sorting Packing Slips and Scanning invoices. Didn’t process order and answer order enquiries”.
• Ms Zou asked Ms Collard to “try her best to teach [the Applicant] as much as she could” and the situation would be reviewed after more time.
• In April 2021, Mr Audet and Ms Collard reported to Ms Zou that they had received complaints from customers about the Applicant’s phone manner. Ms Collard informed Ms Zou she was going to have a meeting with the Applicant and the following day confirmed with Ms Zou that this had occurred.
• In May 2021, Ms Wang raised concerns with Ms Zou that the Applicant was slow and that this was causing workload pressure for the other two team members. Ms Wang reported that the Applicant seemed to spend the whole day sorting packing slips which the other employees could do within a half to one hour and that this meant the Applicant could not attend to scanning activities.
• Ms Zou asked employees within the payroll team to assist with invoicing in order to prevent complaints from customers about not receiving their invoices on time and to ensure weekly and monthly sales reports could be completed to enable payment of monthly commissions.
• In June 2021, Ms Collard reported further complaints from customers about the Applicant’s “inappropriate phone manner”. Ms Zou asked Ms Collard whether the Applicant could now process orders and Ms Collard advised that the Applicant could do so on a very limited basis and that the Applicant was “slow on everything”.
• In June 2021, Mr Audet told Ms Zou that he had received the same feedback about the Applicant from his sales team and that he had observed the Applicant typing slowly. Mr Audet advised Ms Zou that Ms Wang had spoken to him a few times, upset about her workload pressures as the Applicant bore a limited workload.
• A management meeting was held and a decision was made to terminate the Applicant’s employment as improvements in phone manner and efficiency had not been observed over a period of 4.5 months.
[52] In support of the Respondent’s contentions regarding the Applicant’s unsatisfactory work performance, Mr Audet’s evidence was that: 20
• The Applicant started working in November 2020 as a warehouse assistant before moving into the customer service team on a trial basis.
• On her second day in the role, the Applicant asked him how to check stock and he gave her a “brief rundown of how to check stock and how to use [the Respondent’s] price book and stock gallery”.
• In late March, he received two complaints from the sales team that customers had complained about the Applicant’s phone manner as she was telling customers she didn’t have the time to help them and the Respondent was understaffed.
• Approximately one week later, Ms Collard sought Mr Audet’s advice as she had received a few complaints from customers about the Applicant’s phone manner and that she had told a customer she was too busy to help. Mr Audet’s advice was that she speak to both employees in the team about good customer service, so as not to single the Applicant out, and then monitor the Applicant for improvement as she was still in a trial period.
• Approximately two weeks later, around late April 2021, Ms Wang came to see him and expressed concern about the slow pace of the Applicant’s work and her refusal to do orders.
• Two weeks later, in May 2021, Mr Audet asked Ms Wang how things were going and Ms Wang reported that the Applicant was still very slow and aggressive on the phone, could only perform one task at a time, still had slow computer skills and that this was putting pressure on the customer service team. Mr Audet had a conversation with Ms Zou about these concerns.
• During the weekly sales meetings, sales staff complained about the slow pace of the customer service team in responding to customer requests and answering phones. During the Applicant’s time in the customer service role, Mr Audet had several complaints about slow customer service in answering phones.
• In approximately the third week of May, the Applicant said to Mr Audet that she had to get scanning done rather than answering the phones and in response Mr Audet said that phones and orders were the Respondent’s priorities. The Applicant disagreed with this statement and said scanning was too important and she could not keep up with the workload.
• During the June management meeting, it was decided that the Applicant would be dismissed due to customer complaints, because it was understood that the Applicant was not happy in her role and because the Applicant was in a “trial period”.
[53] In support of the Respondent’s contentions regarding the Applicant’s unsatisfactory work performance, Ms Collard’s evidence was that: 21
• Ms Collard has been working in the customer service team of the Respondent for 18 years.
• During her time at the Respondent, she has trained more than 20 staff members and she also trained the Applicant in her customer service role as she would any other new employee in the customer service role.
• The main duties for customer services team members are processing orders, handling enquiries, issuing invoices, sorting packing slips, answering phone calls and scanning completed invoices.
• After four months in the role, the Applicant could only do simple tasks including scanning invoices and sorting packing slips. While the Applicant could answer phone calls, she could not answer customer questions or remember product codes and found it hard to process sales orders with forms, which is a major component of the role.
• When taking a telephone call, this was all the Applicant could focus on and there is a need for the person in the role to focus on multiple tasks at once, such as taking a phone call whilst looking up stock or entering an order.
• The Applicant’s slow pace in undertaking her duties put pressure on remaining team members.
• In or around April 2021, she received three to four phone calls from customers stating that the Applicant was rude to them on the phone.
• Ms Collard sought advice from Mr Audet on how to address this with the Applicant and together they “decided to do it in a softer way rather than a harsh way” so Ms Collard was not “singling” the Applicant out. As a consequence, Ms Collard spoke to both the Applicant and Ms Wang about the manner in which they spoke to customers and both confirmed that they would be more careful.
• Ms Collard also reported the customer complaints and her meeting with the Applicant to Ms Zou.
• At a later stage, in May and June, Ms Collard continued to receive complaints from customers concerning the Applicant’s telephone manner and these were reported to Ms Zou in June 2021.
[54] By way of summary, Ms Wang’s evidence was that: 22
• For the period the Applicant was working in her team, “she appeared to be a slower learner, she was not efficient and she couldn’t multi-task”.
• The Applicant took longer to complete the same task than any other team member. This had a negative impact on other team members and Ms Wang had to stay back for more than an hour almost every day.
• The Applicant complained about the customer service role being stressful and acknowledged she was slow and could not contribute much to the team.
The Applicant’s case regarding valid reason
[55] The Applicant submitted that there was no valid reason for the dismissal related to the Applicant’s capacity or conduct because:
• The Applicant was not provided with any reasons for her dismissal related to capacity or conduct when she was dismissed on 7 July 2021, instead being told that “there was nothing wrong, it is just a business decision.” 23
• After the dismissal, when the Applicant specifically asked in an email, “[i]f you could also please give me a reason for letting me go as I have not been given any indication to any performance issues or any other cause for this action”, 24 the reason was changed to the Applicant allegedly being “[q]uite slow in the computer and we received complaints from customers that your attitude on the phone is not acceptable”.25
• However, despite asking for more details, these were not provided 26 until the Respondent lodged its Form F3 on 10 August 2021, in which it has further changed/expanded the reasons to:
• “Unsatisfactory work performances”.
• “Attitude and manner on the phone was rude. Received continuous complaints from customers”.
• “Could not do touch-type therefore very slow on the computer, especially large volume of emails to be responded in her role”.
• “Can not perform multi task at the same time, for example, refused to take the phone call while processing an order, refused to take the phone call while scanning the Invoices. Etc”.
• “Didn’t follow the supervisor and senior co-worker’s instruction on work procedure, always did the work in her own way”.
• The reasons provided by the Respondent both at the time of the dismissal and after are not valid reasons in that they are not sound, well founded and defensible. 27 In the alternative, the termination was disproportionate.28
[56] The Applicant provided her evidence in relation to the performance allegations in her witness statement. By way of summary, the Applicant’s evidence was that: 29
• The Applicant was never told that her personal phone manner was a problem, let alone a problem that could lead to her dismissal if she did not fix it. During the Hearing, the Applicant gave evidence that the only conversation that took place was one that took place between Ms Collard, the Applicant and Ms Wong in or around early March in which Ms Collard asked both employees to be more tolerant of customers and to watch what was said to them after which the Applicant advised that she would and apologised.
• The Applicant was not aware of any alleged complaints from any customers.
• The Applicant can touch type and can use computers well and was never provided with feedback to the effect that she was not able to do so.
• The Applicant could multi-task and did so frequently each day, however some tasks required her to be away from the telephone, such as scanning invoices.
• Some of the Applicant’s regular tasks were to scan invoices, collate packing slips and answer the telephone. When the Applicant asked Ms Collard if she should scan, she was usually told to focus on sorting packing slips while trying to answer anywhere between 60 to over 100 calls each day.
• The Applicant only refused to take calls once in early February on a day when only she and Ms Wang were in the office. There were limited staff in the Melbourne warehouse that day and a very large volume of calls so the Applicant did not answer all of them.
• There had been no training in many tasks and the Applicant perceived that some of the training she did receive was inadequate. During cross examination, the Applicant stated that she received “very little” training from Ms Collard who “showed her how to do some things” and that Mr Audet showed her how to work aspects of the system for about 15 minutes and this was the main training she had whilst she was in the office. The Applicant stated that Ms Wang also showed her how to do things but that both Ms Collard and Ms Wang were rushed in giving this training.
[57] During cross examination, the Applicant was also taken to paragraphs 27 and 28 of her witness statement, which indicated that she received positive feedback from Ms Zou. The Applicant stated that in February she walked into her office and asked whether she was “going ok” and Ms Zou confirmed that she was. The Applicant’s evidence was that she then asked whether she would be made full time and Ms Zou confirmed that she would be. The Applicant’s employment was subsequently converted to a full time role on 24 February 2021.
Capacity – Dismissal for unsatisfactory performance
[58] Having regard to the matters I have referred to above and the evidence in these proceedings, I am satisfied that the Applicant’s work performance was poor. The evidence of the Respondent’s witnesses is broadly consistent in relation to their concerns about the Applicant’s performance and I am satisfied that this was having a negative impact on her team members who had escalated their concerns to management. I am satisfied that the Respondent’s management team decided to dismiss the Applicant on the grounds of poor performance and that this constitutes a valid reason for dismissal. This weighs against a finding of unfairness.
[59] However, the procedures followed by the Respondent in giving effect to the dismissal warrant scrutiny and I have dealt with this below in relation to the remaining considerations falling within s.387 of the Act.
Was the Applicant notified of the valid reason?
[60] Proper consideration of s.387(b) of the FW Act requires a finding to be made as to whether the Applicant “was notified of that reason”. Contextually, the reference to “that reason” is the valid reason found to exist under s.387(a) of the FW Act. 30
[61] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment, 31 and in explicit and plain and clear terms.32
The Applicant’s case
[62] The Applicant submitted that the Respondent has relied upon reasons for dismissal that were not provided in plain, clear and explicit terms prior to the decision to dismiss, including reasons provided only after the commencement of this unfair dismissal matter. 33
[63] The Applicant was dismissed from her employment on 7 July 2021. The Applicant provided the following account of when Mr Audet notified her of the decision to terminate her employment: 34
“On 7 July I had a very brief meeting with Mr Audet. I had thought the meeting was going to be regular business meeting, which we would have reasonably frequently.
There was no indication prior to the start of the meeting that it was to discuss my employment potentially terminating and there was no indication that a support person might be appropriate for the meeting.
Mr Audet was brief and to the point, indicating at the outset of the meeting either “We’ve decided to part ways” or “Sorry, we’ve decided to part ways”. I think he said “sorry” at the start, though … I am not certain of it.
I was in shock and asked “why? What did I do wrong?”
Mr Audet indicated “there was nothing wrong, it is just a business decision.”
Mr Audet then said words to the effect of “you don’t seem happy in the role.”
I replied with words to the effect of “I am happy, I like it here, but I’m frustrated with the issues in Melbourne and not being able to help the other two girls with the orders.”
Mr Audet said words to the effect of “I understand, but we’ve decided to part ways”.
I may have repeated asking “what did I do wrong?”
There was no indication in the meeting that there were any alleged performance concerns, and the meeting was over in a matter of minutes.”
The Respondent’s case
[64] The Respondent’s submissions and Mr Audet provided the following account of the discussion between the Applicant and Mr Audet when he told the Applicant she was being dismissed: 35
“In the afternoon of 7 July 2021, Mr Joseph Audet called Ms McCallum to his office,
He said to her: we do not think you are suitable for this position and we feel it better if we part way.
She said: why, what did I do wrong?
He said: this role was only a trial for you.
She said something like: no it is not.
He said: you don’t seem happy.
She said something like: I am happy, but I am frustrated and not being able to help the other two girls with the orders as they are a lot quicker than me.
He repeated: I am sorry however we feel it better if we part ways.
She then left his office…”
[65] The Respondent’s submissions appear to concede that the Applicant was not notified of the reasons for the dismissal prior to her dismissal, 36 although this is inconsistent with statements made elsewhere in the submissions.37
[66] The Respondent’s submissions also indicate that Ms Zou provided reasons for the dismissal the day following the Applicant’s dismissal upon the Applicant’s request. 38
[67] This is consistent with the Applicant’s evidence that she emailed Ms Zou on 8 July 2021 seeking reasons for her dismissal, with Ms Zou responding via email informing the Applicant that:
“The main reason is that we think you are not suitable for this role: Quite slow in the computer and we received complaints from customers that your attitude on the phone is not acceptable”. 39
[68] During cross examination, the Applicant confirmed that following her dismissal she wrote to the Respondent and indicated she was not aware of any reasons for dismissal relating to her performance and that, upon asking this question, she was advised by Ms Zou that poor performance was the reason for her dismissal.
Findings
[69] Having regard to the matters referred to above and the evidence in these proceedings, I find that the Applicant was not notified of the reason for her dismissal in explicit and plain and clear terms prior to the decision to dismiss being made.
[70] In all the circumstances, I find that the Applicant was not notified of the reason for her dismissal in accordance with s.387(b) of the FW Act. This weighs in favour of a finding of unfairness.
Was the Applicant given an opportunity to respond to any valid reason related to their capacity or conduct?
[71] An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment. 40
[72] The opportunity to respond does not require formality and this factor is to be applied in a common sense way to ensure the employee is treated fairly. 41 Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements.42
The Applicant’s case
[73] The Applicant submitted that she did not have an opportunity to respond to any valid reason because she did not have the opportunity to present a case and to defend her job. 43
The Respondent’s case
[74] The Respondent submitted that the Applicant did have an opportunity to respond to any valid reason related to the Applicant’s capacity or conduct, stating:
“The dismissal meeting was held in Mr Joseph Audet’s office at around 4pm on the 7th July 2021. Mr Audet did give Ms McCallum the reason of dismissal but Ms McCallum denied. Mr Audet didn’t ask Ms McCallum to leave immediately. So Ms McCallum had opportunity to respond to the reasons as she had. Ms McCallum’s working hours were 8:30am to 5pm. Ms McCallum had another hour to respond.” 44
Findings
[75] Even if the Respondent’s account of Mr Audet’s conversation with the Applicant on 7 July 2021 is accepted, it is clear from this conversation that the decision to terminate the Applicant’s employment had been made, the reason of poor performance was not put to the Applicant and that the Applicant was not provided with an opportunity to respond before the decision was taken to terminate her employment
[76] Having regard to the matters referred to above, I find that the Applicant was not given an opportunity to respond to the reason for her dismissal prior to the decision to dismiss being made. This weighs in favour of a finding of unfairness.
Did the Respondent unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal?
[77] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present.
[78] There is no positive obligation on an employer to offer an employee the opportunity to have a support person:
“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.”45
[79] The Applicant had not been informed by the Respondent that she could have a support person present under s.387(d) of the FW Act. However, as noted by the Full Bench of the Fair Work Commission, “[t]he subsection is not concerned with whether or not the employee was informed that he or she could have a support person present, though that matter may be relevant and taken into account under s.387(h).”46
[80] In all the circumstances, I find that the Respondent did not unreasonably refuse to allow the Applicant to have a support person present at discussions relating to the dismissal. I consider this to be a neutral consideration
Was the Applicant warned about unsatisfactory performance before the dismissal?
[81] A dismissal relates to unsatisfactory performance where it refers to “the level at which the employee renders performance, including factors such as diligence, quality, care taken and so on.”47 This matter involves a dismissal on the grounds of unsatisfactory performance and, as such, s.387(e) of the FW Act is relevant.
[82] A warning for the purposes of s.387(e) must clearly identify:
• the areas of deficiency in the employee’s performance;
• the assistance or training that might be provided;
• the standards required; and
• a reasonable timeframe within which the employee is required to meet such standards.48
[83] In addition, the warning must “make it clear that the employee’s employment is at risk unless the performance issue identified is addressed.”49
[84] In order to constitute a warning for the purposes of s.387(d), it is not sufficient for the employer merely to exhort their employee to improve their performance.50
The Applicant’s case
[85] The Applicant submitted that she had not been warned about the unsatisfactory performance prior to dismissal. 51
The Respondent’s case
[86] The Respondent submitted that the Applicant had been warned about the unsatisfactory performance prior to dismissal on the basis that: 52
• Ms Collard spoke to the Applicant and Ms Wang about the manner of speaking to customers following receipt of customer complaints.
• The Applicant has admitted that she was slow and couldn’t help her team members much therefore a warning is not necessary.
Findings
[87] While Ms Collard’s evidence was that she spoke to both the Applicant and Ms Wang about the manner in which they spoke to customers, I do not consider that this constitutes a warning but was rather a general reminder to both team members to be mindful of telephone manner when speaking to customers. The areas of deficiency in the Applicant’s performance were not clearly identified by the Respondent and put to the Applicant and the Respondent did not make it clear that the Applicant’s employment was at risk unless they were addressed.
[88] Having regard to the matters above, I find that the Applicant was not warned of her unsatisfactory performance before dismissal. This weighs in favour of a finding of unfairness.
To what degree would the size of the Respondent’s enterprise and 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?
[89] Where an employer is substantial and has dedicated human resources personnel and access to legal advice, there will likely be no reason for it not to follow fair procedures.53
[90] The Respondent’s Form F3 response indicates that at the time of the dismissal it employed 21 employees. While not meeting the definition of small business employer in the FW Act, the Respondent is certainly not a large and substantial business and is small in general nature.
[91] While the FW Act recognises that “small business are genuinely different in nature both organisationally and operationally”,54 it does not follow that such an employer’s procedures in effecting a dismissal can be entirely devoid of fairness.
[92] The Applicant submitted that employees who are about to lose their employment are entitled to expect a fair go, regardless of the size of the employer’s undertaking or the absence of specialist human resources and that the manner in which the dismissal was effected was harsh and the Applicant was denied a fair go. 55
[93] The Respondent’s submissions indicate that it did not believe the size of the Respondent’s enterprise was likely to impact on the procedures followed in effecting the dismissal. 56
[94] With respect to s.387(g) of the FW Act, I find that Respondent did not have dedicated human resources management specialists at the time of the Applicant’s dismissal. It is likely that this, together with the Respondent’s relatively small size, impacted the procedures followed and, had the Respondent sought advice, the Applicant would have been afforded greater procedural fairness. However, the absence of dedicated human resource management specialists does not relieve an employer of extending an appropriate degree of courtesy to its employees “even when implementing something as difficult and unpleasant as the termination of a person’s employment.”57
[95] It is apparent from the evidence that the Respondent’s customer service team and management held concerns about the Applicant’s performance. However, rather than bringing these to her attention in a clear and transparent manner so she could properly address them with the knowledge that her employment was at risk if she did not improve, the Respondent merely gave the Applicant subtle hints that improvement might be required, as evidenced by the conversation that Ms Collard had with the Applicant and Ms Wang about telephone manner. While advice from a suitably qualified expert may have pointed the Respondent in the direction of resources to assist them in managing performance, and potentially dismissal, in a procedurally fair way, there is no explanation as to why the performance concerns were not put squarely and clearly to the Applicant so she had the opportunity to improve her performance. It seems likely that this did not occur as the Respondent was avoiding what would have been difficult but necessary conversations with the Applicant.
[96] In the circumstances of this case, I consider this criterion to be neutral.
What other matters are relevant?
[97] Section 387(h) of the FW Act requires the Commission to take into account any other matters that the Commission considers relevant.
[98] Although s.387(d) does not require an employer to inform an employee that they may have a support person present, that matter may be relevant in all the circumstances and taken into account under s.387(h).58 I accept the Applicant’s evidence that she did not know about the purpose of the termination meeting with Mr Audet on 7 July 2021 before that meeting, that there was no indication prior to the start of the meeting that it was to discuss the potential termination of her employment and there was no indication that she may request a support person. I have taken these circumstances into account.
[99] Procedural fairness is one factor that the Commission may take into consideration when deciding if a dismissal has been harsh, unjust or unreasonable. It concerns the decision-making process followed or steps taken by a decision maker, rather than the actual decision itself.
[100] In the context of administrative decision-making, the rules of natural justice are flexible and require fairness in all the circumstances, including the nature of the power exercised and the statutory provisions governing its exercise. 59 Ordinarily, procedural fairness requires that an allegation be put to a person and they be given an opportunity to answer it before a decision is made.60As noted above, it is apparent from the evidence that the Respondent’s customer service team and management held concerns about the Applicant’s performance. However, the Respondent did not bring these to the Applicant’s attention in a clear and transparent manner so she could properly address them with the knowledge that her employment was at risk if she did not. I have taken this into account.
[101] I have also had regard to the Applicant’s length of service, noting that the period between 24 November 2020 and 7 July 2021 is not a lengthy period of time.
Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust or unreasonable?
[102] I have made findings in relation to each matter specified in s.387 of the FW Act as relevant.
[103] I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable. 61
[104] Having considered each of the matters specified in s.387 of the FW Act, I am satisfied that the dismissal of the Applicant was harsh.
[105] I am therefore satisfied that the Applicant was unfairly dismissed within the meaning of s.385 of the FW Act.
[106] Being satisfied that the Applicant:
• made an application for an order granting a remedy under s.394;
• was a person protected from unfair dismissal; and
• was unfairly dismissed within the meaning of s.385 of the FW Act,
I may, subject to the FW Act, order the Applicant’s reinstatement, or the payment of compensation to the Applicant.
[107] Under s.390(3) of the FW Act, I must not order the payment of compensation to the Applicant unless:
(a) I am satisfied that reinstatement of the Applicant is inappropriate; and
(b) I consider an order for payment of compensation is appropriate in all the circumstances of the case.
Is reinstatement of the Applicant inappropriate?
[108] The Applicant did not seek an order for reinstatement and has since confirmed that she does not wish to be reinstated. In such circumstances, “the Applicant’s disposition is a sure guide to the Commission as to whether or not it would be appropriate to reinstate or re-employ the Applicant. To act contrary to the Applicant’s desired position in this respect would be to give effect to an order that may not yield a productive or cooperative workplace.”62
[109] The Applicant has also found alternative employment. As stated by the Full Bench, “[i]n assessing whether reinstatement is an appropriate remedy, it is obviously relevant as to whether the dismissed employee has obtained alternative employment. Where that new employment is satisfactory to the employee, it will be no remedy at all to reinstate the employee to the pre-dismissal employment to which the employee, for well-founded reasons, has no desire to return.” 63
[110] Having regard to the matters referred to above, I consider that reinstatement is inappropriate. I will now consider whether a payment for compensation is appropriate in all the circumstances.
Is an order for payment of compensation appropriate in all the circumstances of the case?
[111] Having found that reinstatement is inappropriate, it does not automatically follow that a payment for compensation is appropriate. As noted by the Full Bench, “[t]he question whether to order a remedy in a case where a dismissal has been found to be unfair remains a discretionary one…” 64
[112] Where an applicant has suffered financial loss as a result of the dismissal, this may be a relevant consideration in the exercise of this discretion. 65 I am satisfied that the applicant has suffered some financial loss as a result of her dismissal, including during the period where she was without earnings and noting her new role is paid less than her role prior to her dismissal.
[113] Section 392(2) of the FW Act requires all of the circumstances of the case to be taken into account when determining an amount to be paid as compensation to the Applicant in lieu of reinstatement including:
(a) the effect of the order on the viability of the Respondent’s enterprise;
(b) the length of the Applicant’s service;
(c) the remuneration that the Applicant would have received, or would have been likely to receive, if the Applicant had not been dismissed;
(d) the efforts of the Applicant (if any) to mitigate the loss suffered by the Applicant because of the dismissal;
(e) the amount of any remuneration earned by the Applicant from employment or other work during the period between the dismissal and the making of the order for compensation;
(f) the amount of any income reasonably likely to be so earned by the Applicant during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that the Commission considers relevant.
[114] In considering each of the criteria in s.392 of the FW Act, it is useful to refer to the helpful restatement of principles to be applied in the assessment of compensation in Johnson
v North West Supermarkets T/A Castlemaine IGA: 66
“[9] The well-established approach to the assessment of compensation under s 392 is to apply the ‘Sprigg formula’, derived from the Australian Industrial Relations Commission Full Bench decision in Sprigg v Paul Licensed Festival Supermarket. This approach was articulated in the context of the current legislative framework in Bowden v Ottrey Homes Cobram and District Retirement Villages. Under that approach, the first step to be taken in assessing compensation is to consider s.392(2)(c), that is, to determine what the applicant would have received, or would have been likely to receive, if the person had not been dismissed. In Bowden this was described in the following way:
“[33] The first step in this process - the assessment of remuneration lost - is a necessary element in determining an amount to be ordered in lieu of reinstatement. Such an assessment is often difficult, but it must be done. As the Full Bench observed in Sprigg:
‘... we acknowledge that there is a speculative element involved in all such assessments. We believe it is a necessary step by virtue of the requirement of s.170CH(7)(c). We accept that assessment of relative likelihoods is integral to most assessments of compensation or damages in courts of law.’
[34] Lost remuneration is usually calculated by estimating how long the employee would have remained in the relevant employment but for the termination of their employment. We refer to this period as the ‘anticipated period of employment’...”
[10] The identification of this starting point amount ‘necessarily involves assessments as to future events that will often be problematic,’ but, as the Full Bench observed in McCulloch v Calvary Health Care Adelaide, ‘while the task of determining an anticipated period of employment can be difficult, it must be done.’
[11] Once this first step has been undertaken, various adjustments are made in accordance with s.392 and the formula for matters including monies earned since dismissal, contingencies, any reduction on account of the employee’s misconduct and the application of the cap of six months’ pay. This approach is however subject to the overarching requirement to ensure that the level of compensation is in an amount that is considered appropriate having regard to all the circumstances of the case.” (references omitted)
[115] The Sprigg formula was discussed and refined in Ellawala v Australian Postal Corporation 67 as follows:
“[31] The principles applicable to determining an amount to be ordered in lieu of reinstatement are dealt with in Sprigg. In that case the Full Bench endorsed the following approach:
Step 1: Estimate the remuneration the employee would have received, or have been likely to have received, if the employer had not terminated the employment (remuneration lost).
Step 2: Deduct monies earned since termination.
Step 3: Discount the remaining amount for contingencies.
Step 4: Calculate the impact of taxation to ensure that the employee receives the actual amount he or she would have received if they had continued in their employment.
[32] Any amount provisionally arrived at by application of these steps is subject to whether offsetting weight is given to other circumstances, including those that need now to be taken into account under paragraphs 170CH(7)(a), (b) and (c). The legislative cap on the amount able to be ordered is then applied pursuant to ss.170CH(8) and (9).
[33] The first step in this process - the assessment of remuneration lost - is a necessary element in determining an amount to be ordered in lieu of reinstatement. Such an assessment is often difficult, but it must be done. As the Full Bench observed in Sprigg:
“...we acknowledge that there is a speculative element involved in all such assessments. We believe it is a necessary step by virtue of the requirement of s.170CH(7)(c). We accept that assessment of relative likelihoods is integral to most assessments of compensation or damages in courts of law.”
[34] Lost remuneration is usually calculated by estimating how long the employee would have remained in the relevant employment but for the termination of their employment. We refer to this period as the "anticipated period of employment". This amount is then reduced by deducting monies earned since termination. Only monies earned during the period from termination until the end of the "anticipated period of employment" are deducted. An example may assist to illustrate the approach to be taken.
[35] In a particular case the Commission estimates that if the applicant had not been terminated then he or she would have remained in employment for a further 12 months. The applicant has earned $3,000 a month for the 18 months since termination, that is $54,000. Only the money earned in the first twelve months after termination - that is $36,000 - is deducted from the Commission's estimate of the applicant's lost remuneration. Monies earned after the end of the "anticipated period of employment", 12 months after termination in this example, are not deducted. This is because the calculation is intended to put the applicant in the financial position he or she would have been in but for the termination of their employment.
[36] The next step is to discount the remaining amount for "contingencies". This step is a means of taking into account the possibility that the occurrence of contingencies to which the applicant was subject might have brought about some change in earning capacity or earnings.
…
[45] In relation to the fourth step set out in Sprigg we note that the usual practice is to settle a gross amount and leave taxation for determination.” (my emphasis, references omitted)
[116] In Balaclava Pastoral Co Pty Ltd t/a Australian Hotel Cowra v Darren Nurcombe, 68 the Full Bench stated that in quantifying compensation, it is necessary to set out with some precision the way in which the various matters required to be taken into account under s.392(2) (and s.392(3) if relevant), and the steps in the Sprigg formula, have been assessed and quantified. The Full Bench also proffered that the way in which a final compensation amount has been arrived at should be readily apparent and explicable from the reasons of the decision-maker.
[117] I will assess compensation having regard to these matters.
Remuneration that the Applicant would have received, or would have been likely to receive, if the Applicant had not been dismissed – s.392(2)(c)
[118] As stated by a majority of the Full Court of the Federal Court, “[i]n determining the remuneration that the Applicant would have received, or would have been likely to receive… the Commission must address itself to the question whether, if the actual termination had not occurred, the employment would have been likely to continue, or would have been terminated at some time by another means. It is necessary for the Commission to make a finding of fact as to the likelihood of a further termination, in order to be able to assess the amount of remuneration the employee would have received, or would have been likely to receive, if there had not been the actual termination.” 69
[119] When calculating the remuneration that the Applicant would have received or would have been likely to receive if the Applicant had not been dismissed, the intention is to put the Applicant in the financial position he or she would have been in but for the unfair dismissal.
[120] The Applicant submitted that the her employment would have been likely to continue for a further period of at least one year. 70 The Respondent submitted that the Applicant’s employment would not have lasted for another year because of her poor performance.71
[121] While the reason for the dismissal was poor performance and this constituted a valid reason, the Respondent should have implemented performance management measures so that the Applicant could take active steps to improve her performance with the knowledge that her job was at risk if she did not. While I am satisfied that implementation of performance management measures would have meant that the Applicant would have remained in her employment for longer, the evidence of the Respondent’s witnesses suggests that the Applicant’s performance was negatively impacting other team members and indicates that the gap between performance and expectations was going to be a difficult one for the Applicant to bridge. I consider it likely that the Applicant would have shown some degree of improvement had she been alerted to the seriousness of the situation in terms of risk to her employment and this would have given rise to continued employment for a time. However, it is unlikely that the level of improvement would have been so substantial such that the Applicant would not have been terminated at some time by another means following appropriate performance management measures, given the gaps in her performance and the expectations of the Respondent in what appears to be a fast-paced environment where someone was needed to ‘hit the ground running’.
[122] The Applicant was earning $1,155.00 per week at the time of her dismissal excluding superannuation. The Applicant submitted that her employment would have been likely to continue for a further period of at least one year and the amount of remuneration that the Applicant would have received or would have been likely to receive during that period is $65,765.70 inclusive of superannuation. 72
[123] The Applicant was dismissed from her employment by the Respondent on 7 July 2021. 73 The Respondent submitted that, from 19 July 2021, employees who lived in the Canterbury‐Bankstown Local Government Area (LGA) were not allowed to come to work and that the Applicant lives in this LGA. The Respondent submitted that the Applicant’s replacement also lived in the LGA, was informed not to come to work after 19 July 2021, started to work two days per week from 16 August 2021 and, from 8 July 2021 to 12 September 2021 (when the Applicant was out of work), only worked 15 days in total.74 Based on this logic, if the Applicant’s submissions and evidence are to be accepted, this would mean that the Applicant would have only earned $3,811.50 inclusive of superannuation. The Respondent provided an extract from its attendance system indicating the working hours of the Applicant’s replacement in support of these submissions.
[124] I accept that the Applicant resides in the LGA 75 and have informed myself as to the effect of the public health orders affecting that LGA. A Public Health (COVID-19) Temporary Movement and Gathering Restrictions) Order 2021 (Public Health Order) came into effect at the beginning of 19 July 2021.
[125] Clauses 20(1) and (2) of the Public Health Order provided:
(1) The Minister directs that an affected person must not without reasonable excuse—
(a) be away from the person’s place of residence, wherever located, or
(b) if the person is staying in temporary accommodation, wherever located—be away from the temporary accommodation.
(2) For the purposes of subclause (1), a reasonable excuse includes doing an activity specified by Schedule 1.
[126] Schedule 1 of the Public Health order provided that a reasonable excuse included work purposes if:
(a) it was not reasonably practicable for the employee to work at the employee’s place of residence, and
(b) if the person was required to visit another person’s place of residence to engage in work—the person was authorised under clause 22A.
[127] However, there was an exemption to this in cause 24E of the Public Health Order. This clause applied to a person:
(a) whose principal place of residence is in—
(i) an affected area, or
(ii) the local government areas of the City of Liverpool or Canterbury-Bankstown, or
(b) who is staying in temporary accommodation in—
(i) an affected area, or
(ii) the local government areas of the City of Liverpool or Canterbury-Bankstown.
[128] In these circumstances, Clause 24E of the Public Heath Order provided that, despite clause 20, a person must not, for the purposes of work, travel outside the local government area in which the person resides or is staying. The effect of this is that the Applicant would not have been permitted to travel to work.
[129] I accept that the main duties for customer services team members are processing orders, handling enquiries, issuing invoices, sorting packing slips, answering phone calls and scanning completed invoices. 76 It is apparent to me that at least some of these functions needed to be carried out in the warehouse environment, requiring an on-site presence.
[130] The LGA remained an area of concern that subjected residents to restrictions for a considerable amount of time. Notwithstanding this, it was apparent that the Respondent was able to find work for the Applicant’s replacement to carry out two days per week from 16 August 2021 until 9 September 2021 and had made arrangements with the Applicant’s replacement to implement reduced working arrangements for this period. Evidence was not provided in relation to working hours after this date. I am satisfied that, had the Applicant remained in employment, she would have likely reached an arrangement with the Respondent to work a pattern of hours in line with those worked by her replacement between 16 August 2021 and 10 September 2021.
Findings
• the Applicant’s employment was likely to continue for a further period of 10 weeks; and
• the remuneration likely to have been received by the Applicant during that period would have been $9,909.90 including superannuation calculated at 10% comprised of:
• $5,775.00 (5 weeks) + $231.00 (1 working day) for the period between 8 July 2021 and 15 August 2021, amounting to $6,606.60 inclusive of superannuation;
• $1,848.00 (8 working days) for the period between 16 August 2021 and 10 September 2021, amounting to $2,032.80 inclusive of superannuation; and
• $1,155.00 (5 working days) for the period between 11 September 2021 and 16 September 2021, amounting to $1,270.50 inclusive of superannuation.
Remuneration earned – s.392(2)(e) and income reasonably likely to be earned – s.392(2)(f)
[132] Remuneration earned from the date of dismissal to the date of any compensation order is required to be taken into account under s.392(2)(e) of the FW Act. Remuneration reasonably likely to be earned from the date of any compensation order to the date the compensation is paid is to be taken into account under s.392(2)(f) of the FW Act. Any remuneration likely to be earned after that date to the end of the period of anticipated employment determined for the purpose of s.392(2)(c) is a relevant amount to be taken into account under s.392(2)(g) in accordance with the Sprigg formula.
[133] The Applicant says she has earned $22,526.59 from employment or other work since the dismissal until the filing of her submissions on 1 December 2021. This not challenged by the Respondent. Assuming the Applicant continues to receive $1,938.08 per fortnight, I find that the amount of remuneration earned by the Applicant from employment or other work during the period since the dismissal is $28,517.46 until the date of the order.
[134] Based on the Applicant securing alternative employment and having been paid an amount of $1,938.08 per fortnight in relation to two weeks’ worth of work, I am satisfied that the amount of income reasonably likely to be earned by the Applicant between the making of the order for compensation and the payment of compensation is a further $1,938.08.
[135] As the Applicant commenced receiving remuneration from her new job from 13 September 2021 and this is before the time when her employment would, in my view, have ended (i.e. 16 September 2021 being a period of 10 weeks from the time of dismissal), earnings between 13 September 2021 and 16 September 2021 should reduce the amount of compensation ordered. This is a period of four working days which amounts to $775.23 based on the Applicant’s pay of $1,938.08 per fortnight.
[136] In mathematical terms, this means deducting the actual and likely income for Applicant for the 10 week period from the date of her dismissal ($775.23) from the amount calculated for the purpose of s.392(2)(c) ($9,909.90), which leaves $9,134.67 gross in compensation, inclusive of superannuation. The Applicant was also paid one week in lieu of notice, further reducing the amount by $1,155.00, leaving $7,979.67 gross in compensation, inclusive of superannuation.
Length of service – s.392(2)(b) and any other matters – s.392(2)(g)
[137] The Applicant’s length of service between 24 November 2020 and 7 July 2021 is not a lengthy period of time. As such, I apply a 5% discount to the amount of $9,909.90 reducing the amount of compensation by a further $495.50 to $7,484.17.
[138] I do not consider there is any basis for any deduction for contingencies in this matter and it will be left to the Respondent to deduct taxation required by law.
Effect of the order on the viability of the Respondent’s enterprise – s.392(2)(a)
[139] The Respondent has made submissions about the impacts of the COVID-19 on its enterprise that infer an effect on viability. As stated previously by Deputy President Hamilton, “[s]uch an inference must not be simply ‘conjecture or speculation’ 77, and there must be facts which in my view make an effect on viability of the enterprise sufficiently probable. The existence of trading difficulties and a general submission that ‘any additional expense will certainly be a problem for the business’ is not a submission that the viability of the business will be affected or even that it will probably be affected. … A mere submission that difficulties for the business will occur is, with respect, not enough.”78
[140] As the Commission observed in the context of earlier legislation, “where an employer seeks to rely on the circumstances referred to in s.170CH(7)(a) [which was in terms substantially the same as s.392(2)(a)], the employer must present evidence and/or argument as to the financial situation of the undertaking and the likely effect that an order for compensation would have on the viability of the undertaking...”.79
[141] While the Respondent made various submissions about the impacts of the COVID-19 on its enterprise, the evidence before the Commission does not establish that an order for compensation would not have an effect on the viability of the employer’s enterprise.
Efforts of the Applicant to mitigate the loss suffered by the Applicant because of the dismissal – s.392(2)(d)
[142] The Applicant must provide evidence that they have taken reasonable steps to minimise the impact of the dismissal. 80 What is reasonable depends on the circumstances of the case.81
[143] The Applicant’s evidence was that she was out of work and searching for work from 8 July 2021 to 10 September 2021 and commenced a new job on 13 September 2021, earning $1,938.08 per fortnight inclusive of superannuation.
[144] I am satisfied that the Applicant took reasonable steps to mitigate her loss by actively seeking and ultimately obtaining alternative employment.
Misconduct – s.392(3)
[145] I am not satisfied that the Applicant engaged in misconduct so no deduction is required under s.392(3) of the FW Act.
Compensation cap – s.392(5) & (6)
[146] I find that the total amount of the remuneration received by the Applicant and to which she was entitled during the 26 weeks immediately before the dismissal was $28,773.94 in wages and $2,739.31 in superannuation (i.e. $31,513.25).
[147] The high income threshold immediately before the dismissal was $158,500.00. Half of that amount is $79,250.00.
[148] The amount of compensation ordered by the Commission must therefore not exceed $28,773.94 in wages (plus $2,739.31 if superannuation is to be included).
Instalments – s.393
[149] I do not consider that there is any reason for compensation to be made by way of instalments.
Shock, Distress – s.392(4)
[150] The amount of compensation calculated must not and will not include a component for shock, distress, humiliation or other analogous hurt caused to the Applicant by the manner of her dismissal.
[151] I am satisfied that the Applicant was protected from unfair dismissal, that the dismissal was unfair and that an order for compensation equating to $7,484.17, less taxation to be deducted as required by law, is appropriate having regard to all the circumstances of the case.
[152] An order requiring the payment of this amount within 14 days will be issued with this decision.
COMMISSIONER
Appearances:
Mr G Dircks on behalf of the Applicant.
Ms F Zou and Mr J Audet on behalf of the Respondent.
Hearing details:
2022.
Sydney (By Video using Microsoft Teams).
January 14.
Printed by authority of the Commonwealth Government Printer
<PR740124>
1 Applicant, ‘Form F2 – Unfair dismissal application’, filed 28 July 2021, 1.3, 1.4; Respondent, ‘Form F3 – Employer response to unfair dismissal application’, filed 10 August 2021, 1.3, 1.4, 3.1.
2 Respondent, ‘Form F3 – Employer response to unfair dismissal application’, filed 10 August 2021, 1.5; Applicant, ‘Witness Statement of Elizabeth McCallum’, dated 1 December 2021, [2].
3 Respondent, ‘Form F3 – Employer response to unfair dismissal application’, filed 10 August 2021, 1.7.
4 Warrell v Fair Work Australia [2013] FCA 291.
5 Ibid.
6 Applicant, ‘Witness Statement of Elizabeth McCallum’, dated 1 December 2021; Applicant, ‘Updated Witness Statement of Elizabeth McCallum’, dated 29 December 2021.
7 Fiona Zou, ‘Witness statement number 1’, filed 15 December 2021.
8 Joseph Audet, ‘Witness statement number 2’, filed 15 December 2021.
9 Amanda Collard, ‘Witness statement number 3’, filed 15 December 2021.
10 Diana Wang, ‘Witness statement number 4’, filed 15 December 2021.
11 Respondent, ‘Form F3 – Employer response to unfair dismissal application’, filed 10 August 2021, 1.7.
12 McCallum v Everstone Pty Ltd [2021] FWC 6358.
13 Respondent, ‘Form F3 – Employer response to unfair dismissal application’, filed 10 August 2021, 1.5; Applicant, ‘Witness Statement of Elizabeth McCallum’, dated 1 December 2021, [2].
14 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].
15 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
16 Ibid.
17 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.
18 Respondent, ‘Outline of Argument’, filed 15 December 2021, 5a.
19 Fiona Zou, ‘Witness statement number 1’, filed 15 December 2021.
20 Joseph Audet, ‘Witness statement number 2’, filed 15 December 2021.
21 Amanda Collard, ‘Witness statement number 3’, filed 15 December 2021.
22 ‘Diana Wang, ‘Witness statement number 4’, filed 15 December 2021.
23 Applicant, ‘Outline of Submissions – Unfair Dismissal’, filed 1 December 2021, [10]; Applicant, ‘Witness Statement of Elizabeth McCallum’, dated 1 December 2021, [13], [57].
24 Applicant, ‘Outline of Submissions – Unfair Dismissal’, filed 1 December 2021, [11]; Applicant, ‘Witness Statement of Elizabeth McCallum’, dated 1 December 2021, [19].
25 Applicant, ‘Outline of Submissions – Unfair Dismissal’, filed 1 December 2021, [11]; Applicant, ‘Witness Statement of Elizabeth McCallum’, dated 1 December 2021, [20].
26 Applicant, ‘Outline of Submissions – Unfair Dismissal’, filed 1 December 2021, [12]; Applicant, ‘Witness Statement of Elizabeth McCallum’, dated 1 December 2021, [22].
27 Applicant, ‘Outline of Submissions – Unfair Dismissal’, filed 1 December 2021, [15], [21].
28 Ibid, [25].
29 Applicant, ‘Witness Statement of Elizabeth McCallum’, dated 1 December 2021, para [31]-[55].
30 Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429, [19]; Reseigh v Stegbar Pty Ltd [2020] FWCFB 533, [55].
31 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
32 Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).
33 Applicant, ‘Outline of Submissions – Unfair Dismissal’, filed 1 December 2021, [10]-[12].
34 Applicant, ‘Witness Statement of Elizabeth McCallum’, dated 1 December 2021, [9]-[18].
35 Respondent, ‘Outline of Argument’, filed 15 December 2021, 3d; Joseph Audet, ‘Witness statement number 2’, filed 15 December 2021, [16].
36 Respondent, ‘Outline of Argument’, filed 15 December 2021, 3e.
37 See, for example, ibid, 3f.
38 Ibid, 3d.
39 Applicant, ‘Witness Statement of Elizabeth McCallum’, dated 1 December 2021, [20].
40 Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), [75].
41 RMIT v Asher (2010) 194 IR 1, 14-15.
42 Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.
43 Applicant, ‘Outline of Submissions – Unfair Dismissal’, filed 1 December 2021, [34].
44 Respondent, ‘Outline of Argument’, filed 15 December 2021, 3f.
45 Explanatory Memorandum, Fair Work Bill 2008 (Cth), [1542].
46 Jurisic v ABB Australia Pty Ltd [2014] FWCFB 5835, [84].
47 Annetta v Ansett Australia Print S6824 (AIRCFB, Giudice J, Williams SDP, Cribb C, 7 June 2000), [16].
48 McCarron v Commercial Facilities Management Pty Ltd t/a CFM Air Conditioning Pty Ltd [2013] FWC 3034, [32].
49 n Print S9280 (AIRCFB, Ross VP, Williams SDP, Blair C, 21 August 2000), [43]-[44].
50 bid.
51 Applicant, ‘Outline of Submissions – Unfair Dismissal’, filed 1 December 2021, [40]-[44].
52 Respondent, ‘Outline of Argument’, filed 15 December 2021, 5b.
53 Jetstar v Meetson-Lemkes [2013] FWCFB 9075, [68].
54 Williams v Top Image Hair Design [2012] FWA 9517, [40].
55 Applicant, ‘Outline of Submissions – Unfair Dismissal’, filed 1 December 2021, [45]-[46].
56 Respondent, ‘Outline of Argument’, filed 15 December 2021, 3j.
57 Sykes v Heatly Pty Ltd t/a Heatly Sports PR914149 (AIRC, Grainger C, 6 February 2002), [21].
58 Jurisic v ABB Australia Pty Ltd [2014] FWCFB 5835, [84].
59 Kioa v West [1985] HCA 81, [11] (per Gibbs CJ).
60 Ibid, [22] (per Wilson J).
61 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].
62 Taylor v C-Tech Laser Pty Ltd [2013] FWC 8732, [58].
63 Seitz v Ironbay Pty Ltd t/a City Beach IGA [2018] FWCFB 1341, [24].
64 Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter [2014] FWCFB 7198, [9].
65 Vennix v Mayfield Childcare Ltd [2020] FWCFB 550, [20]; Jeffrey v IBM Australia Ltd [2015] FWCFB 4171, [5]-[7].
67 Print S5109 (AIRCFB, Ross VP, Williams SDP, Gay C, 17 April 2000)
68 [2017] FWCFB 429 at [43].
69 He v Lewin [2004] FCAFC 161, [58].
70 Applicant, ‘Outline of Submissions – Unfair Dismissal’, filed 1 December 2021, [55](1).
71 Respondent, ‘Outline of Argument’, filed 15 December 2021, 6b13.
72 Applicant, ‘Outline of Submissions – Unfair Dismissal’, filed 1 December 2021, [55](1).
73 Applicant, ‘Form F2 – Unfair dismissal application’, filed 28 July 2021, 1.3, 1.4; Respondent, ‘Form F3 – Employer response to unfair dismissal application’, filed 10 August 2021, 1.3, 1.4, 3.1
74 Respondent, ‘Outline of Argument’, filed 15 December 2021, 6b; Respondent, ‘Payroll Advices for Andreas Pistevos between 1 July 2021 and 22 September 2022’, filed 15 December 2021; Respondent, ‘Working Hours for Andreas (extracted from Attendance system file)’, filed 15 December 2021.
75 Applicant, ‘Form F2 – Unfair dismissal application’, filed 28 July 2021, 1; Respondent, ‘Employment Separation Certificate dated 9 July 2021’, filed 10 August 2021.
76 ‘Amanda Collard, ‘Witness statement number 3’, filed 15 December 2021, [4].
77 Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [39].
78 Beames v BDRP Falconer Pty Ltd PR916075 (AIRC, Hamilton DP, 28 March 2002), [49].
79 Moore v Highpace Pty Ltd Print Q0871 (AIRCFB, Boulton J, Watson SDP, Whelan C, 18 May 1998).
80 Biviano v Suji Kim Collection PR915963 (AIRCFB, Ross VP, O’Callaghan SDP, Foggo C, 28 March 2002), [34] citing Lockwood Security Products Pty Ltd v Sulocki and Ors PR908053 (AIRCFB, Giudice J, Lacy SDP, Blair C, 23 August 2001), [45].
81 Biviano v Suji Kim Collection PR915963 (AIRCFB, Ross VP, O’Callaghan SDP, Foggo C, 28 March 2002), [34] citing Payzu Ltd v Saunders [1919] 2 KB 581.