[2010] FWA 3674 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Kim Lee Jarvis
v
Crystal Pictures Pty Ltd
(U2010/5688)
COMMISSIONER CLOGHAN |
PERTH, 25 MAY 2010 |
Unfair dismissal remedy.
[1] This is an application by Ms Kim Lee Jarvis (“the Applicant”) alleging that she was unfairly dismissed from her employment at Crystal Pictures Pty Ltd (“the Employer”) on Friday 22 January 2010.
[2] Ms Jarvis has made the application pursuant to s.394 of the Fair Work Act 2009 (“the Act”). For reasons which will become apparent, Ms Jarvis is not seeking the remedy of reinstatement for the alleged unfair dismissal, but compensation in lieu of reinstatement.
[3] The application was unable to be settled in conciliation and was subsequently referred to me for arbitration. Following a conference on 24 March 2010, arbitration took place on 30 April 2010.
[4] The Applicant gave evidence along with Ms Tamrar Hansen. For the Employer, Mr Fahim Mostamandi, Mr Farid Mostamandi and Ms Karina Darie gave evidence.
[5] Mr Fahim Mostamandi, who is a part owner and Director of Crystal Pictures Pty Ltd, was assisted at the bar table by his brother, Mr Fatah Mostamandi. Both Mr Fahim and Fatah Mostamandi cross examined and re-examined witnesses.
[6] Having heard submissions, evidence and received a number of exhibits, I reserved my decision on Ms Jarvis’ application. In reaching this decision, I have considered all the material provided to the Tribunal.
BACKGROUND
[7] Ms Jarvis commenced employment with Crystal Pictures Pty Ltd on 18 June 2009. Initially, Ms Jarvis was employed on a casual basis at the Employer’s Ocean Keys store. At the end of July 2009, Mr Fahim Mostamandi offered Ms Jarvis the position of Manager, Ocean Keys store. On 3 August 2009, Ms Jarvis became the Manager, Ocean Keys store on the understanding that she was required to work each Tuesday at the Employer’s office/warehouse.
[8] The incident which led to Ms Jarvis’ alleged unfair termination of employment is described by the Applicant as follows:
“I arrived at the warehouse at 9 am, which is my normal - working at the admin. Mr Mostamandi arrived after me and chatted with my little boy, and then he left at about quarter past 9 with his friend's mum. When Mr Mostamandi came back in from putting stuff in his car, he sort of said, "Do you need anything?" I said, "No, no." Then he said to me, "You look very nice, you look very summery," and I said, "Thank you. Yeah, well, it's 42 degrees in here, so I needed something cool to wear." He then hugged me and rubbed his hands up and down my back and I sort of pushed him away. He then tried to kiss me, put his hands on my cheeks and sort of pulled me forward, and I sort of pushed him away and said, "You need to go get your mobile and go," and I walked through to the office and sat down behind the computer. He then came, stood next to me and said, "Let me go." I said, "That's enough, you need to go." He said, "Well, let me go, then." I basically turned sort of to the - to get stuff out from the drawer and that sort of thing, and he put his hand over my shoulder, almost down the front of my top. I pushed his hand away and said, "That's enough." He then sort of said to me, "You're stressed and that." I said, "Well, my brain is not working at the moment." He then said to me, "Well, let me help you make it work." After that, eventually he left. There were a few comments and that after that, you know, "Come on," and that sort of stuff, and he then left. I sat at the desk for five, 10 minutes, just sort of quite taken aback at what had happened, because the only time he'd ever done anything was Christmas, he gave me a quick sort of, "Happy Christmas," type thing, so I never, ever thought something like that would have happened.” 1
[9] The incident occurred on Tuesday, 19 January 2010 at the Employer’s office/warehouse. Subsequent to the incident, the Applicant prepared and provided to Mr Fahim Mostamandi the following letter, on Friday, 22 January 2010:
“19 January 2010
To Fahim Mostamandi
I am writing this letter to address the very inappropriate behavior (sic) you showed towards me this morning at the office. When you hugged me and tried to kiss me you made me feel very uncomfortable and I respectfully ask that it doesn’t happen again. Our relationship will be strictly as Employer and employee. Due to this issue I am resigning from the administration duties effective immediately. I will still work at the Ocean keys Store but no longer at the office/Warehouse in Wangara. I don’t know how else to address this issue as I’m still really shaken up by what has happened.
Yours faithfully
Mrs Kim Jarvis” 2
[10] Mr Fahim Mostamandi sighted the letter from Ms Jarvis on Friday 22 January 2010 and, according to the Applicant, after reading the letter:
“21. When Mr Mostamandi came into the store he took all the things in his tray out to his car as he normally did. When he came back into the store he seemed angry. At 2:15pm he asked me to go for a coffee and a chat. I was too scared to be alone with him again and I also had a doctors appointment at quarter to three. He then told me he would talk to me here.
22. He told my colleague Miss Tamrar Hansen that she was to serve any customers and he needed to talk to me. He turned to me and aggressively said (while banging his fist on the scanner), ‘I haven’t done anything wrong’,. I replied calmly that his behaviour at the office on Tuesday 19/01/10 was very inappropriate and he had made me very uncomfortable.
23. He then asked me why I had gone to the office that day, he said that I was supposed to be at the store. I told him it was my normal administration day and the first one back from the Christmas rush. Shaima and he had commented on several occasions that there was a lot waiting for me. I also said that it was irrelivant (sic) as to where I was supposed to work, that it still didn’t make his behavior (sic) ok, it was still inappropriate. He said I was making this up, that I had gone to the Office/Warehouse to make trouble for him. He kept telling me that he hadn’t done anything wrong, the more I said calmly that he had, the more angry and aggressive he got towards me. Refer to Witness statement from Tamrar Hansen.
24. He then yelled at me, saying ‘Give me the keys and Get out, Get out you have lost your job. I was extremely shocked, I gave the keys and all the paperwork I had to Karina Darie (who witnessed this also) and left the store.
25. …Mr Mostamandi dismissed me less than 30 minutes after getting the letter, no reasons were ever given to me.” 3
RELEVANT MATTERS FOR CONSIDERATION
What happened on Tuesday 19 January 2010?
[11] Ms Jarvis states that Tuesday 19 January 2010 was the first Tuesday after the Christmas/New Year period that she was required to attend work at the office/warehouse of the Employer 4.
[12] Ms Jarvis arrived at approximately 9:00am with her son and began working. Mr Fahim Mostamandi arrived sometime between 9:00am and 9:15am and initially chatted to Ms Jarvis’ son, who was picked up by a friend of Ms Jarvis at 9:15am.
[13] After Ms Jarvis’ son was picked up, both she and Mr Fahim Mostamandi were alone until he left the office/warehouse sometime before approximately 9:30am prior to Mr Abdul Farid Mostamandi’s arrival. Mr Farid Mostamandi is Mr Fahim Mostamandi’s brother and Company Accountant.
[14] Notwithstanding cross examination by Mr Fahim Mostamandi, Ms Jarvis did not depart from the substance of the incident as described in her evidence in paragraph [8].
[15] On the same day, Tuesday 19 January 2010, Ms Jarvis telephoned Ms Darie, her immediate supervisor and the Employer’s Regional Manager concerning the incident. Ms Jarvis made a time to meet with Ms Darie at the Ocean Keys store on the afternoon of the incident. In the words of Ms Darie:
“…Kim said to me that Fahim tried kissing her and tried - like, put his hand around her neck or something, and had her hand - his hand on her chest. I said to Kim, you know, I said, "Okay." I said - well, you know, I didn't really know what to say, you know. Like, I've never been in such a position before, so I said to her, you know, "The best thing to probably do is, you know, speak to Fahim about it and sort it out. 5
[16] Further, also in the words of Ms Darie, the Applicant’s behaviour was described as:
“…I mean, at the time, I mean, obviously you [Ms Jarvis] were pretty, you know, shaken up at the time, obviously. I personally didn't think of it as much because, I mean, you know, there's been a few stories around that I've hear, you know. There was a few bits and pieces so I didn't take it on, you know, as something that could have possibly happened.” 6
“…Well, you seemed pretty stressed out, so I wasn't quite sure what the problem was so I said, you know, "Are you all right? What's up?" You know, "What's the matter?" 7
“…She seemed, yes, pretty stressed out, but Kim is always stressed out.” 8
“…What was it that made you think she was stressed out?---It was just the way, you know, she was sort of - you know, the way she was saying it all. She was talking pretty quickly and it's just - yes. I mean, I personally thought she looked a little bit shaken up at the time.” 9
[17] Finally, following her termination of employment at approximately 2:30pm on Friday 22 January 2010, Ms Jarvis made a statement to Clarkson Police Station about the incident at 5:40pm. In a declaratory statement, Ms Jarvis repeats the essential elements of paragraph [8].
[18] Ms Jarvis’ assertion that she was sexually harassed is also contained in the application to Fair Work Australia on 2 February 2010.
[19] Mr Fahim Mostamandi was unable to disturb Ms Jarvis’ evidence, and his evidence, or those of the Employer’s witnesses, was either to say that the allegations were totally untrue or to assert:
[20] In response to the Employer and his witnesses’ assertions, Ms Jarvis agreed that she had not met store targets set by the Employer, however, this was consistent with other stores. Ms Jarvis disagreed with comments regarding her work performance and provided the Tribunal with files notes by Mr David Rabey of PVS Workfind, who recorded on 7 September, 2009 that Mr Fahim Mostamandi made the following comment:
“…he is delighted with Kim’s progress, commenting that she is proving to be an exceptional member of staff.” 10
And finally, Ms Jarvis admitted an error in the police statement when she said that Mr Fahim Mostamandi arrived just after 10:00am. However, for my purposes, nothing turns on that error.
What happened between the incident on 19 January 2010 and prior to the meeting which led to Ms Jarvis’ termination of employment on 22 January 2010?
[21] Firstly, and importantly, Ms Jarvis brought the incident on 19 January 2010 to the attention of her immediate supervisor and Regional Manager, Ms Darie, on the same afternoon. The facts of this discussion are set out in paragraphs [15] and [16].
[22] Mr Farid Mostamandi gave an account, in his words, of Ms Jarvis’ behaviour on 19 January 2010 after Mr Fahim Mostamandi left the premises. I did not find Mr Farid Mostamandi untruthful and he gave his version how he saw Ms Jarvis that day.
[23] In contrast, I found the evidence of Ms Darie, in part, truthful, however, in large part, evasive, unconvincing and approaching the matter as if it were an exercise in sophistry.
[24] According to Ms Darie, her witness statement was “definitely” 11 true and to the best of her knowledge and belief what happened. In her words, “I basically said it all in the statement, pretty much.”12
[25] However, Ms Darie failed to mention in her witness statement that Ms Jarvis met with her on the day of the incident with Mr Fahim Mostamandi at the office/warehouse. Further, she failed to mention that Ms Jarvis explained what had happened and sought her advice on how to handle the incident. Finally, she failed to mention that Ms Jarvis telephoned her up to four occasions, prior to her dismissal on 22 January 2010. For Ms Darie, these matters were, “unnecessary” 13 or “irrelevant”14 to her witness statement.
[26] Where Ms Darie claims that Ms Jarvis stated that she intended to present a letter to Mr Fahim Mostamandi’s wife, Ms Shaima Mostamandi, I prefer the evidence of Ms Jarvis.
[27] The matter of missing monies from the Ocean Keys store was raised. I prefer the evidence of Ms Jarvis which was supported by Ms Darie, in as much as the conversation took place a month before the Applicant’s employment ceased, but Ms Darie only thought it appropriate to mention to Mr Fahim Mostamandi, “just before Kim’s termination”. 15
What happened on Friday, 22 January 2010?
[28] In the words of the Applicant, what happened on 22 January 2010 is as follows:
“…I wrote the letter on the Tuesday night, but I didn't give it to Mr Mostamandi straightaway. I got some advice from Fair Work Australia on how to proceed. I then put the letter in his tray on Friday morning, and he came in and I think it was around 1 pm. He took stuff to his car and I think read the letter, because he came back extremely upset. Karina Darie then arrived at around - I think it was about just after 2.00. Mr Mostamandi asked me to please go for a coffee, and I said, "No, I'm finishing at 2.30. I've got to pick my children up. I've got a doctor's appointment at quarter to 3. I can't do that." He never once said anything about having Karina go with us. He basically just said, "Let's go for a coffee." I did not want to be, obviously, anywhere where I was alone with him, because, you know, I didn't want no witnesses, so that's why I refused to go with him. He then said, "Fine, I'll talk to you here. He asked Ms Tamra Hansen to please, you know, watch the front counter and serve customers, he needed to talk to me. He then said he read his letter and it was absolute rubbish, and then he - and I said, "I'm sorry, but it wasn't." He then slammed his fist down onto the scanner, just where I was working, and yelled at me and said, "I did nothing wrong." I then said to him, "I'm sorry, but you did," and he said, "No, I didn't, and anyway, what were you doing at the warehouse?" I then said, "Well, it was my normal day at the warehouse," because after Christmas, you know, I wasn't there to do that because I was trying to do the late hours and all that at the store, and it was my first day back and the work was backed up and I needed to do that. He said, no, I just went there to make trouble for him, I should have been at the store. I said, "No, that's not the case"…He then said to me that he hadn't done anything wrong, again, that they were all untrue, and I just said to him, "Sorry, it's not." He then yelled at me. He said, "Give me the keys and get out." Then I sort of looked at him, sort of saying, "Excuse me?" He then said, "Get out. You've lost your job.” 16
Further:
“…. He just basically tried to convince me that he had done nothing wrong. He never once said that, "Due to the fact that you made these allegations to me, you are now terminated." He never said anything of the kind. He just said, "Give me the keys and get out. You've lost your job." In paragraph 18 as well, he said that he did fire me because of the allegations, because they were misconduct, and I didn't deserve notice due to the fact that I had wilfully damaged his reputation. He damaged his own reputation with what he had done, and I had the right to address those issues with him, and they were supposed to have been dealt with properly, and dispute resolution followed, not just chuck me out of the store.” 17
[29] Present for the entire meeting in addition to Mr Fahim Mostamandi and the Applicant were Ms Tamrar Melanie Hansen, an employee of the Ocean Keys store and Ms Karina Darie.
[30] Following cross examination, again Ms Jarvis’ evidence was not disturbed by the Employer regarding what happened on 22 January 2010. While there was a difference of opinion as to who or who was not invited to go for coffee and discuss the matter, and whether Ms Hansen attended, or did not attend to customers, Mr Fahim Mostamandi essentially put to the Applicant that the content of the letter at paragraph [9] was untrue, and nothing had happened. Ms Jarvis strongly disagreed with this proposition.
[31] When asked by the Tribunal as to her recollection of events on Friday, 22 January 2010, Ms Hansen gave the following evidence:
“…First off he said, "Why are you making trouble for me, I did nothing wrong." Kim said, yes, he [Mr Fahim Mostamandi] did something wrong. It then went back and forth, "No, I didn't," "Yes, you did," "No, I didn't," "Yes, you did," progressively getting louder from Mr Fahim; Kim stayed calm. Mr Fahim then was saying, "Why were you working at the office, you don't - the store is your responsibility." Since before I started working there Kim has been working in the office every Tuesday to do the admin. So I found that odd as to why he said, "Why are you working at the office." Then it sounded like - well, he implied that the reason why Kim went to the office was to make trouble. Then he started banging his fist on the computer, saying, "I did nothing wrong." When Kim didn't - through all this Kim stayed calm. When Kim didn't bow he then said, "Give me your keys," in a loud, aggressive voice, "Give me your keys and get out, you have lost your job.” 18
[32] In the words of Ms Hansen, she was “two metres” 19 from Ms Jarvis and Mr Fahim Mostamandi, that it was, “hard not to listen”20, the bang on the computer was sufficiently loud enough to “make me jump”21, and finally, her evidence that Mr Fahim Mostamandi did not ask Ms Darie to go with him (and Ms Jarvis) for a discussion on the letter provided by the Applicant.
[33] I found the evidence of Ms Hansen trustworthy. It was given conscientiously and with integrity.
[34] Ms Darie’s witness statement states that Ms Hansen was required to attend to customers at the counter and “left” 22 implying that she was not present for the discussion between Ms Jarvis and Mr Fahim Mostamandi. When it was put to her that Ms Hansen was present for the discussion, Ms Darie replied, “I’m not quite sure. That’s Tamrar’s statement, obviously.”23
[35] Ms Darie’s witness statement also says that Mr Fahim Mostamandi stated, “…if she [Ms Jarvis] didn’t want to speak to him about her claims…he had no choice but to terminate her employment according to the instant dismissal regulations in the Crystal Pictures Terms and Conditions book” 24. When asked by Ms Jarvis, “did he actually say anything about the terms and conditions, and the misconduct and all that sort of thing?”25, Ms Darie avoided answering the question.
[36] When asked by Ms Jarvis what she had said during the meeting with Mr Fahim Mostamandi, Ms Darie answered remarkably but truthfully, “Honestly, I don’t think I can.” 26 Ms Darie continued to say that Mr Fahim Mostamandi was “pretty calm”27 and “asked you to put your key on the bench and to leave and not come back”28. I am unable to accept Ms Darie’s version of what happened as being accurate or truthful.
DISCUSSION AND CONCLUSION
[37] This application, stripped to its essentials, is a dispute regarding the facts of what happened on 19 January 2010 between Ms Jarvis and Mr Fahim Mostamandi. It is this dispute on the facts, that led to the Applicant’s termination of employment on 22 January 2010.
[38] If the situation was such that it was one party’s unshakeable evidence against the other, I would be reluctant to find for the Applicant, as Ms Jarvis has to satisfy the Tribunal, on the balance of probabilities, that she was unfairly terminated from her employment.
[39] However, the factual playing field is not level and Ms Jarvis has provided:
[40] Mr Fahim Mostamandi’s evidence is that Ms Jarvis is not telling the truth and nothing inappropriate happened.
[41] Having considered the totality of the evidence and assessed the credibility of the witnesses, I am satisfied that something did happen on 19 January 2010 which led to the Applicant providing Mr Fahim Mostamandi with the letter reproduced at paragraph [9].
[42] From the evidence, I am also satisfied that Mr Fahim Mostamandi received and read Ms Jarvis’ letter. Further, that he initially sought to discuss the matter outside the Ocean Keys store. When Ms Jarvis refused to discuss it with him alone, and outside the store, a robust discussion took place which included Mr Fahim Mostamandi banging his hand on computer equipment. Evidently, voices were raised and the general discussion revolved around Mr Fahim Mostamandi saying that Ms Jarvis was not telling the truth and he did not do anything wrong, and Ms Jarvis saying she was telling the truth and he did do something wrong. At the conclusion of the meeting, I am satisfied that Mr Fahim Mostamandi did say words to the effect of “give me your keys, get out, you’re fired”.
LEGISLATIVE FRAMEWORK
[43] For Ms Jarvis to be protected from unfair dismissal, it is necessary for her to have completed a minimum of 6 months’ employment at the time she was dismissed and that at least one of the criterion apply in s.382(b) of the Act. I am satisfied, from the evidence that, at least, s382(b)(iii) applies to Ms Jarvis. Ms Jarvis commenced on 18 June 2009 as a casual employee working at least 17 hours per week (Wednesday 10:30am to 2:30pm; Thursday 4:00pm to 9:00pm and Saturday 8:30am to 5:30pm). In addition, she was called in to work regular additional hours at another store. This casual employment totals 6 weeks and one Saturday (1 August 2009). As a consequence, I am satisfied that this period of casual employment was systematic and regular and, together with the period of full-time employment of 5 months and 3 weeks, exceeds the minimum period of employment of 6 months required under s.383(a) of the Act.
[44] Crystal Pictures Pty Ltd is a national system employer with 15 or more employees 29. Consequently, Ms Jarvis is protected from unfair dismissal pursuant to s.382 of the Act.
[45] I now turn to the key provisions of the Act as they relate to this application.
A person has been unfairly dismissed if FWA 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.
and
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA 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 FWA considers relevant.
Was there a valid reason for Ms Jarvis’ dismissal related to her capacity or conduct?
[46] From the evidence presented to me, Ms Jarvis found Mr Fahim Mostamandi’s conduct inappropriate on Tuesday 19 January 2010. On the same day, Ms Jarvis prepared a letter asking for that behaviour not to occur again. Ms Jarvis gave evidence that she did not encourage Mr Fahim Mostamandi’s behaviour 30, his actions were unwelcomed31 and, on a number of occasions asked him to cease his actions32.
[47] It must be said that, prior to this occasion, Mr Fahim Mostamandi had conducted himself without incident with Ms Jarvis.
[48] Between the incident on Tuesday, 19 January and Friday 22 January 2010, there was nothing to suggest that Ms Jarvis wanted anything but a commitment from Mr Fahim Mostamandi not to repeat his actions and for her to continue her employment. Unfortunately, the matter was not “sorted” 33 but escalated to her employment being terminated.
[49] Having considered all these matters, I have to conclude that there was not a valid reason to terminate Ms Jarvis’ employment.
Procedural fairness and process generally
[50] While Ms Jarvis is correct to say that she was not notified of the reasons for the termination of her employment, from the evidence put to me, it is obvious that they related to the allegations made concerning Mr Fahim Mostamandi and her unwillingness to recant those allegations.
[51] I do not accept the submission by Mr Fahim Mostamandi that Ms Jarvis’ employment was terminated for the allegations she made and “she did the wrong thing in the past” 34. In my view, this proposition was only formulated after Ms Jarvis’ cessation of employment, and they were certainly not mentioned to her on Friday 22 January 2010.
[52] In a factual sense, Ms Jarvis’ employment ceased after a robust discussion and the opportunity to respond was neither invited nor expected in the circumstances. In this respect procedural fairness was denied to the Applicant.
[53] Ms Jarvis neither sought nor was refused a support person.
[54] While no mention was made of performance at the meeting on Friday 22 January 2010, Mr Fahim Mostamandi and other witnesses for the Employer gave various opinions of Ms Jarvis’ performance. The only documentation concerning performance are the file notes of PVS Workfind which are positive towards the Applicant, and evidence that she was promoted from a casual employee to the Ocean Keys store Manager after a short period of employment.
[55] Mr Fahim Mostamandi produced a hand-written letter from the Applicant to him regarding an apology for her being “stressed” over the Christmas period because of a staffing situation which, she says, was contributed to by the Employer. However, having heard submissions, received evidence and exhibits, I am satisfied that workplace performance was not the issue which led to Ms Jarvis’ termination of employment.
[56] The Employer’s size did not impact on the behaviour of the main persons involved in the dispute which led to Ms Jarvis’ termination of employment.
[57] Although neither party referred to human resource management expertise, Ms Jarvis sought advice from FWA on the matter and, consistent with good dispute resolution practice, discussed the incident with her immediate supervisor, Ms Darie.
Other matters considered relevant.
[58] Other matters relevant to this application which I have taken into account are set out in this Decision.
[59] One matter from the initial hearing that troubled me, was the evidence of Mr Fahim Mostamandi 35 and Ms Darie,36 that on the night before the incident on 19 January 2010 both witnesses had alleged that Ms Jarvis had told them that she had a “big fight” with her estranged husband, and she had to call the police to remove him from the family home. Ms Jarvis denied that she said this or that it had occurred.
[60] I reconvened the hearing and advised both Mr Fahim Mostamandi and Ms Darie that I had contacted the police who had advised me, in writing, that they had searched their communication system and could find no evidence to suggest that Ms Jarvis called for police assistance on 18 January 2010. On being given the opportunity to respond to my finding, Mr Fahim Mostamandi rephrased his evidence given at the hearing and Ms Darie maintained the evidence she gave at the hearing.
Remedy for unfair dismissal.
[61] Section 390 states:
(1) Subject to subsection (3), FWA may order a person's reinstatement, or the payment of compensation to a person, if:
(a) FWA is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) FWA may make the order only if the person has made an application under section 394.
(3) FWA must not order the payment of compensation to the person unless:
(a) FWA is satisfied that reinstatement of the person is inappropriate; and
(b) FWA considers an order for payment of compensation is appropriate in all the circumstances of the case.
[62] I am satisfied that the Applicant was protected from unfair dismissal at the time of being unfairly dismissed. The Applicant, Ms Jarvis, is not seeking the remedy of reinstatement as provided for in s.390(1) of the Act and, in view of the circumstances leading to Ms Jarvis’ termination of employment as set out in this Decision, I am satisfied, pursuant to s.390(3)(a) of the Act, that reinstatement is not appropriate.
[63] Ms Jarvis has made an application under s.394 of the Act, consequently, as reinstatement is not a suitable remedy, I am satisfied that an order for compensation is appropriate as provided in s.390(3)(b) of the Act.
Compensation.
[64] The relevant parts of s.392 of the Act that are applicable to this application are as follows:
Compensation
(1) An order for the payment of compensation to a person must be an order that the person's employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.
Criteria for deciding amounts
(2) In determining an amount for the purposes of an order under subsection (1), FWA must take into account all the circumstances of the case including:
(a) the effect of the order on the viability of the employer's enterprise; and
(b) the length of the person's service with the employer; and
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that FWA considers relevant.
[65] Ms Jarvis’ uncontested evidence was that she was employed 39 hours per week at $18 per hour. Since the date of her termination of employment, Ms Jarvis gave evidence that after a short period she started to look for work immediately. Ms Jarvis provided the names of 24 employers whom she had applied for a position. Ms Jarvis commenced casual administrative employment on 15 April 2010. In the first week of her employment Ms Jarvis was employed at $15.30 per hour and received a nett payment of $206 37. While not receiving her wages for the following week, Ms Jarvis was expecting to earn a further, “just over 200 a week”38
[66] From the date of her termination of employment on 22 January 2010, Ms Jarvis gave evidence that she received a Centrelink pension.
[67] The Applicant advised me that she had received all of her entitlements save 5-hours on Thursday, 21 January 2010 when she had sick leave. The response from the Employer to Ms Jarvis is that the 5 hours “is not supported by a valid GP certificate. Hence unless you present valid documentation, the claim cannot be accepted” 39.
What compensation should Ms Jarvis receive?
[68] In determining an amount for the purpose of making an order for compensation, I must take into account the criteria set out in s.392(2) of the Act. In general terms, the Applicant has been employed by the Employer for a relatively short period of time. Ms Jarvis had been employed full-time from 3 August 2009 to 22 January 2010. Prior to 3 August 2009, Ms Jarvis was employed on a casual basis from 17 June 2009 to 1 August 2009 with a minimum of 17-hours per week and further additional hours on a regular basis. No submission was received either from Mr Fahim Mostamandi as part-owner of the business or Mr Farid Mostamandi, Company Accountant, concerning the impact of an order on the viability of the business.
[69] With respect to s.392(c) of the Act, I have formed the view from the evidence presented, that Ms Jarvis would have continued in her employment if it was not for the incident on 19 January 2010. Further, in her letter to Mr Fahim Mostamandi regarding the incident, Ms Jarvis indicated her desire to continue in employment subject to addressing the incident. Mr Fahim Mostamandi gave evidence to the effect that Ms Jarvis was not a good manager and knew that she was to be dismissed, and hence, had fabricated the incident 40. Having heard all the witnesses and the benefit of their demeanour, I am unable to conclude that Ms Jarvis would not have remained in continuous employment.
[70] Having reached the view that Ms Jarvis would have continued in employment, it is necessary to determine a primary amount of compensation. The primary amount will be:
[71] Consequently, the primary compensable amount to the date of hearing would be approximately $9,422 (income tax payable on $406 nett, would reduce this amount).
[72] Ms Jarvis sought one week’s pay in lieu of notice and I have set that claim aside when examining the total lapsed time between termination and hearing date. I have also not addressed the 5 hours sick leave claimed by Ms Jarvis due to a lack of evidence as to whether she is or not entitled to the leave without a medical certificate.
[73] The Act provides that the compensable amount be calculated to the date of an order. Consequently, there would, ordinarily be a further 2 weeks or $1,404.00 less what Ms Jarvis would received from her current employment. Notwithstanding this calculation by the Tribunal, Ms Jarvis provided documentation seeking compensation of $8,000. In view of the fact that the amount is approximately what I would have arrived at using my discretion, I propose to adopt what Ms Jarvis is seeking.
[74] I should note for the benefit of both parties that Ms Jarvis advised that during between her termination of employment and 15 April 2010, she received Centrelink payments. Ms Jarvis did not disclose the amount received. For my purposes under s.392(e) of the Act, I do not consider Centrelink payments as “…remuneration earned by [Ms Jarvis] from employment or work during the period between the dismissal and the making of the order for compensation”. Further, I do not consider it “relevant” for the purposes of s.392(g) of the Act, as it would be inappropriate for Australian taxpayers to effectively subsidise compensation (foregone wages) payable to an employee, where the employer has instantly dismissed that employee unfairly.
[75] Having said that, if the Centrelink payments received by Ms Jarvis have to be repaid or there is discretion for repayment, that is a matter between Ms Jarvis and the relevant Commonwealth officers.
CONCLUSION
[76] In accordance with my reasons and findings above, I am satisfied that Ms Jarvis was unfairly dismissed by Crystal Pictures Pty Ltd. I am also satisfied that reinstatement is inappropriate and an Order in the terms set out in this Decision will be issued.
COMMISSIONER
Appearances:
Ms Kim Lee Jarvis, the Applicant
Mr Fahim Mostamandi, the Respondent (assisted by his brother, Mr Fatah Mostamandi)
Hearing details:
2010
Perth
30 April
20 May
1 PN 70
2 Exhibit A2
3 Exhibit A1
4 Exhibit A1
5 PN 601
6 PN 559
7 PN 560
8 PN 602
9 PN 603
10 Exhibit A2
11 PN 551
12 PN 554
13 PN 573
14 PN 576
15 Exhibit R3
16 PN 85
17 PN 88
18 PN 250
19 PN 263
20 PN 265
21 PN 272
22 Exhibit R3
23 PN 586
24 Exhibit R3
25 PN 587
26 PN 588
27 PN 590
28 PN 589
29 Exhibit A2
30 PN 72
31 PN 73
32 PN 74
33 PN 618
34 PN 620
35 PN 173
36 PN 609
37 PN 81
38 PN 83
39 Exhibit A2
40 PN 300 and PN 317
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