[2012] FWA 5588 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Lisa Slavin
v
Horizon Holdings Pty Ltd
(U2011/12564)
COMMISSIONER LEE |
MELBOURNE, 2 AUGUST 2012 |
Application for unfair dismissal remedy - whether valid reason for dismissal - whether dismissal was harsh, unjust or unreasonable - Fair Work Act 2009 ss.387, 394.
[1] This matter involves an application made pursuant to section 394 of the Fair Work Act 2009 (the Act) for unfair dismissal remedy. Ms Lisa Slavin (the Applicant) claims that she was unfairly dismissed from her employment with Horizon Holdings Pty Ltd (the Respondent). The application was lodged 13 October 2011.
[2] A conciliation conference was conducted by a Fair Work Australia conciliator. However the matter was not settled. The matter was listed for jurisdiction conference/hearing before Commissioner Bissett on 9 March 2012. The jurisdictional objection was dismissed by Commissioner Bissett (see [2012] FWA 2424), and the matter was listed for arbitration before me on 7 June 2012.
[3] The arbitration conference/hearing of 7 June 2012 was conducted in Melbourne. Mr A. Galbraith of Counsel was granted permission to appear for the Applicant. Mr A. Colquhoun of the Victorian Employer’s Chamber of Commerce and Industry (VECCI) represented the Respondent.
[4] The Respondent, in written correspondence prior to and orally at the commencement of proceedings, raised confidentiality concerns regarding the circumstances of the alleged conduct of the Applicant on 12 September 2012. I have considered these concerns and restate that the transcript and all submissions, witness statements and exhibits of the proceedings will remain private and only accessible by the parties to the proceedings. Further, I have not made reference in the decision to allegations about individuals not involved in the proceedings that may be prejudicial to them in some way. However, I see no reason not to name all witnesses in the proceedings. Ms L Slavin gave evidence on her own behalf, and Mr G Johnston also gave evidence for the Applicant. Evidence for the Respondent was given by Ms L Liu, Ms H Chen and Mr X Chen.
BACKGROUND
[5] The Applicant commenced employment with the Respondent in July 2000. She was employed as a General Manager. In January 2005, the Applicant took on increased duties and described herself as the CEO of the Respondent, due to the Respondent’s sole director and family moving back to China. Ms. Liu and Mr. Chen did not oppose this change in title. 1
[6] On 29 September 2011, the Applicant’s employment with the Respondent was terminated for serious misconduct, that being;
“(a) acting in a way that destroyed or was likely to destroy the relationship of trust and confidence the Respondent had with the Applicant; and
(b) the Applicant’s failure to follow reasonable and lawful instructions, including and most notably, her failure to return the Respondent’s BMW despite repeated requests to do so.” 2
[7] The Applicant refutes this and claims she was unfairly dismissed.
JURISDICTION
[8] A person is protected from unfair dismissal if:
“382 When a person is protected from unfair dismissal
A person is protected from unfair dismissal at a time if, at that time:
(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.
[9] As discussed above, this matter came before Commissioner Bissett for jurisdiction hearing/conference. Commissioner Bissett determined that the Applicant was a person protected pursuant to section 382(b)(iii).
LAW TO BE APPLIED
[10] Unfair dismissal is governed by Part 3-2 of the Act. Section 385 of the Act sets out what constitutes an unfair dismissal;
“385 What is an unfair dismissal
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.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”
[11] With regard to s.385(a), section 386 of the Act sets out the meaning of ‘dismissed’. There was no dispute between the parties as to whether or not the Applicant was dismissed. It is taken that the Applicant was dismissed by the Respondent in line with the meaning of dismissal outlined in s.386(1).
[12] With regard to s.385(c), the Respondent in written submissions, asserted that the Respondent was a small business at the time of dismissal, within the meaning of s.23 of the Act. 3
[13] During proceedings however, it was accepted between the parties that the Respondent was not a small business within the meaning of s.23 of the Act. 4 As such, the Small Business Fair Dismissal Code (as outlined in s.388 of the Act) is not applicable in this matter.
[14] With regard to s.385(d), there was no suggestion that the Applicant’s dismissal was a case of genuine redundancy. Section 385(d) does not apply in this matter.
[15] The remaining matter for my consideration as to whether the Applicant was unfairly dismissed is whether the dismissal was harsh, unjust and unreasonable (s385(b) of the Act).
[16] If I am satisfied that the Applicant’s dismissal was harsh, unjust or unreasonable then, the other requirements having been either agreed or deemed not applicable as described above, I must find that the Applicant has been unfairly dismissed.
Whether dismissal was harsh, unjust or unreasonable
[17] In considering whether a dismissal was harsh, unjust or unreasonable, I must consider the criteria set out in section 387 of the Act:
“387 Criteria for considering harshness etc.
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.”
[18] I will deal with each of these considerations in turn.
CONSIDERING SECTION 387 REQUIREMENTS
Section 387(a) - whether there was a valid reason for the dismissal related to the person’s capacity or conduct;
Failure to follow reasonable and lawful instructions, return of BMW vehicle
[19] The letter of termination provided to the Applicant by the Respondent states that the Applicant’s employment was;
“…hereby summarily terminated for serious misconduct being:
[20] The Applicant, in her witness statement 6 admits that she did not return the vehicle as instructed but states “...that the incident that [the Respondent] refers to should not have led to [her] dismissal”.7 The Applicant denies the allegation with regard to her conduct on 12 September 2011.
[21] The Applicant admitted that she did not return the vehicle as instructed. As this fact is admitted, I must consider whether this was a valid reason for the Applicant’s dismissal.
[22] There was competing evidence led before me with regard to the provision of the vehicle to the Applicant. It is necessary to deal with this component of the evidence in some detail.
[23] The Applicant’s contract of employment, signed by the Applicant on 2 July 2000, provides the following under the heading “Remuneration”;
“ A VT Commodore Berlina will be granted during my employment period all expenditures including maintenance and repairs will be the financial responsibility of the company.
[24] Despite the terms of the contract of employment, for the first three weeks of employment, the Respondent provided the Applicant with a Mitsubishi Magna station wagon. 9 The Applicant asserts that after this three week period, the Managing Director of the Respondent, Mr Chen agreed that the Applicant would have a BMW as part of her salary package.10 The Applicant asserts that during her employment with the Respondent, she drove “...four BMWs and each of them was part of [her] salary package”.11
[25] The Applicant in her witness statement claims that “[t]he BMW was not a company car. [The Respondent] leased it from BMW for [her] to use”. 12 The Applicant states, with regard to the vehicle in question that she;
“...had driven the BMW since about November 2009. [She] had arranged the BMW through [her] brother in law...who worked for BMW and leased it to [the Respondent] at a discount. The car was never for [the Respondent], it was for [her]. On 25 November 2009, [she] emailed [Mr Chen] the documents for the BMW and wrote ‘these are the documents for my car’.” 13
[26] Mr Chen provided a witness statement and gave evidence in proceedings before me. In his statement, Mr Chen refuted the claims of the Applicant, and stated that;
“I never agreed [the Applicant] would always be provided with fully maintained BMW’s as part of her employment contract. All the Applicant and I agreed on is she would be provided with a company car.” 14
[27] The Applicant provided evidence regarding the working relationship she had with the Respondent. After Mr Chen and Ms Liu’s return to China, the Applicant asserts that she;
“...took over the day-to-day management of [the Respondent business]. [Mr Chen] and [she] spoke about important decisions but [she] was otherwise left to run [the Respondent business] as [she] saw fit. [She] was responsible for all staffing issues, overseeing the warehouse operations, management of the retail stores, purchasing stock, attending trade fairs, developing and implementing stock ranges and marketing strategies.” 15
[28] The Applicant stated that she and Mr Chen had a very good working relationship. 16 During the period between 2005 and 2011, the Applicant became a Director of another business of Mr Chen’s and she received a ten year anniversary bonus from the Respondent.
[29] It is the Applicant’s evidence that in 2009, Mr Chen became ill. In 2010, Mr Chen and Ms Liu were still living in China but because Mr Chen was still ill, Ms Liu became “...more involved in all of his businesses, including [the Respondent business]”. 17
[30] There was a great deal of evidence led about the relationship between Ms Liu and the Applicant during the period from May 2011 when Ms Liu returned to the Australia, becoming more intimately involved in the business, and the date of termination of the Applicant. Various allegations as to the conduct of Ms. Liu towards the Applicant were made, particularly in the email sent to Mr. Chen by the Applicant and marked as exhibit AC2 in proceedings. These included the Applicant’s claim that Ms. Liu had told her to have nothing to do with the shops and that Ms Liu had told the Applicant that she had done nothing but destroy the company. The document also claims that Ms. Liu was abusive when she did not agree with the Applicant and hung up on her. 18
[31] Ms. Liu throughout her statement refers to the strained relationship between the Applicant and herself. In particular her witness statement outlines that Ms Liu “felt everything [she] suggested to the applicant turned into argument or disagreement. She refused to accept any of [Ms Liu’s] directions or suggestions for [Ms Liu’s] own business. [Ms Liu] felt at this time the Applicants actions were making our business relationship impossible”. 19
[32] On 17 August 2011, the Applicant was certified unfit for duties for medical reasons until 23 August 2012. 20 This medical leave was extended a number of times until 26 September 2012.21
[33] On 26 August 2011, the Applicant received an email from Ms Liu, who asked to collect the BMW from the Applicant’s home (the first request). This email is reproduced below:
“Dear Lisa,
How are you!
I hope you are getting better.
As you know that the company’s finance is in such poor situation, there are lots of bill we haven’t paid off. We can not [sic] afford leasing the BMW car any more. please inform me whether it is Okay for you that I can arrange to pick up your car and exchange with another company car on next Monday?
Sorry to disturbing [sic] you while you are on sick leave.
Regards
Jane Liu” 22
[34] The Applicant did not respond directly to this email. Ms Liu in her witness statement explained that;
“On or about 29 August 2011, the Respondent received “without prejudice” correspondence from the Applicant’s solicitor...raising an number of issues (“Disputes”) and demanding a sum money [sic]” 23
[35] The Applicant in her statement outlines her reasons for not returning the vehicle as sought by Ms Liu in the email of 26 August 2011:
“I could not return the BMW because my medication was making me drowsy and I had not been driving. I was on medical leave and I could not return the BMW.
I also immediately knew that [Ms Liu] wanted the BMW herself. [Ms Liu’s] request was not logical because [the Respondent] owned four other vehicles...and these were not being used much. If [Ms Liu] was concerned about [the Respondent’s] finances it was more logical to sell the Ford because it was worth more.
I was also worried because [Ms Liu] had not told me what the BMW would be exchanged with. If I returned the BMW without receiving another car, it would be akin to a pay cut without a reason.
I was also concerned again because [Ms Liu] was not a Director or Manager at [the Respondent company] and did not have the authority to make decisions about my car.” 24
[36] Despite the submissions of Counsel on her behalf, the above reasoning suggests that the Applicant understood that Ms Liu’s email correspondence was a request to “hand over” the vehicle but that she did not facilitate the return of the vehicle based on a combination of the reasons suggested above.
[37] It was apparent that subsequent to the request from Ms Liu to pick up the vehicle and the response from the Applicant’s solicitors, there was a period of “without prejudice” exchange between the legal representatives of the Applicant and VECCI who were now acting for the Respondent.
[38] At the hearing of 7 June 2012, whether this correspondence was admissible was discussed by the representatives. On transcript, I determined that “without prejudice” correspondence between the parties would be excluded from the evidence in this matter and would not be relied on by me in reaching a decision in this matter.
[39] On 23 September 2011, the Respondent sent a letter to the Applicant’s solicitor giving specific direction regarding the return of the BMW (the second request). 25 That correspondence requested return of the vehicle to the company address in Mordialloc by 28 September 2011.
[40] On 27 September 2011, the Applicant’s lawyers sent correspondence to the Respondent indicating that the Applicant was only prepared to return the vehicle for an alternative vehicle of equivalent value and prestige. 26 In effect, the Applicant did not comply with this second request.27
[41] On 28 September 2011, a meeting between the Applicant and Ms Liu was convened. Mr Johnson attended with the Applicant. Ms H Chen (Respondent employee) also attended the meeting. There was considerable debate about what this meeting was about.
[42] At the conclusion of the meeting, Ms Liu requested the keys to the BMW, a request which the Applicant refused (the third request).
[43] I must at this point, consider whether there was a basis for the Applicant refusing to return the vehicle, which she explicitly did on three occasions. I intend to start with whether the request to return the vehicle was a lawful and reasonable request from the employer.
Was the request lawful?
[44] The Respondent’s submissions set out their view as to the lawfulness of the request of the Respondent:
“In considering whether the direction was lawful, we submit the Tribunal must consider whether the Respondent had a lawful right to insist the Applicant return the BMW in exchange for another fully maintained vehicle. We contend the Respondent had such a right as, even on the Applicant’s evidence, it was not unusual for the Applicant’s fully maintained vehicle to be changed from time to time.
From a contractual law perspective, any irrevocable promise by the Respondent the Applicant would be provided with a particular type of car, of a particular value and of a particular prestige (which is denied), needs consideration to become an irrevocable contractual entitlement as to create any alleged ‘unlawfulness’ of the Respondent’s direction. Put another way, the Applicant must point to some irrevocable contractual entitlement to demonstrate the direction to return the BMW in exchange for another vehicle was unlawful.” 28 (Footnotes removed)
[45] The Respondent directed me to the decision of Dixon J in R v Darling Island Stevedoring and Lighterage Co. Limited; Ex parte Halliday & Sullivan 29 where it was stated;
“Naturally enough the award adopted the standard or test by which the common law determines the lawfulness of a command or direction given by a master to a servant. If a command relates to the subject matter of the employment and involves no illegality, the obligation of the servant to obey it depends at common law upon its being reasonable. In other words, the lawful commands of an employer which an employee must obey are those which fall within the scope of the contract of service and are reasonable.” 30
[46] The Applicant asserted in written submission that the direction to return the BMW was not “expressly permitted by the terms of the contract”. 31
[47] The Applicant also referred me to Dixon J in R v Darling Island Stevedoring and Lighterage Co. Limited; Ex parte Halliday & Sullivan. 32 In addition, the Applicant directed my attention to regulation 1.07 of the Fair Work Regulations 2009 (the Regulations), arguing that there is no doubt that “any such direction must be both lawful and reasonable.”33
[48] The Applicant’s position as to whether the direction was lawful was as follows;
“The direction to return the BMW was not connected with the job/duties performed by the Applicant pursuant to the Contract, or any of its incidents. Relevantly, this matter should be distinguished from the common scenario where an employee refuses a lawful direction to perform extra duties or work extra hours.
The direction to return the BMW did not “fall within the scope of the contract of service” as contemplated by the comments of Dixon J in R v Darling Island Setevdoring and Lighterage Co. Limited; Ex parte Halliday & Sullivan, and it was not “consistent with the employee contract of employment” as contemplated by Regulation 1.07.
Invariably there must be some restriction placed on an employer’s capacity to lawfully direct an employee when such a direction does not relate to the actual performance of the employees duties or her/her service to the employer. Particularly when the employer’s direction relates to the returning of a component of an employee’s remuneration in circumstances where there was no overpayment or similar unjust enrichment....” 34
[49] The Applicant’s contract of employment explicitly states that “[a] VT Commodore Berlina will be granted” to the Applicant during her employment. Against this explicit reference, the Applicant was provided with a BMW on at least four occasions. However, Mr. Chen denies in his statement that he agreed Ms. Slavin would always be provided with a fully maintained BMW as part of her employment contract. 35
[50] It is also an express term of the contract that it can only be varied by the parties in writing. 36 There was no evidence that there was a written variation to replace the provision of a commodore with a BMW.
[51] In BP Refinery (Westernport) Pty Ltd v Hastings Shire Council 37, the Privy Council held that for a term to be implied into a contract it must meet a number of tests, one of which is that it cannot contradict an express term of the contract.38 The express term in the contract in this matter is for a provision of a VT Commodore, not a BMW. While the conduct of the parties may be relevant to a consideration as to whether a term has been implied into a contract of employment, the conduct cannot overcome the fact that in this case there is an express term dealing with the entitlement to a motor vehicle and that the term was not changed in writing in accordance with another express term of the contract. Further, there is the express denial of Mr. Chen that he agreed to the provision of a BMW as a term of employment.
[52] I also reject the Applicant’s argument that the direction to return the BMW does not fall within the scope of the contract of service as contemplated in R v Darling Island Stevedoring and Lighterage Co. Limited; Ex parte Halliday & Sullivan. The provision of a vehicle, a Commodore, was an express term of the contract of service. There is no basis to accept the Applicant’s submission that as the direction to return the BMW was not connected with the job/duties of the Applicant that it should be distinguished in some way. The direction was to return a vehicle to which the Applicant did not have a contractual entitlement and have it replaced with another. Nor is it necessary as contended by the Applicant that the direction be expressly permitted by the contract in order to be lawful. The direction is lawful if it meets the test in R v Darling Island Stevedoring and Lighterage Co. Limited; Ex parte Halliday & Sullivan.
[53] Finally, there was a question as to whether Ms. Liu had the authority at the relevant times to issue the direction to return the vehicle. There was evidence about changes to the directorship of the various companies that constitute the Respondent’s business and some dispute as to when Ms. Liu became a Director. However, it is clear from the evidence that on 26 August 2011, the time that Ms. Liu first asked to “pick up” the vehicle from the Applicant, the Applicant had been told by Mr. Chen in writing prior (on 16 August 2011) that Ms. Liu owned 100% of the business, that Applicant should stand by her side and that Ms. Liu “got all the right to get herself involved in her own business”. 39 In any case, the Applicant became aware of Ms. Liu becoming a director of Horizon holdings on the 7 September 2011. Therefore, there should have been no doubt in her mind that the second direction to return the car on 29 September 2011 was made with authority. The Applicant conceded this during proceedings.40 In summary, any argument that Ms. Liu did not have authority to issue a direction to the Applicant is not supportable.
[54] I find that the Applicant did not have a contractual right to a BMW and the request by Ms. Liu to return the vehicle in order that it be replaced with another was lawful.
Was the direction reasonable?
[55] I will deal firstly with the claim by the Applicant that the email sent by Ms. Liu to her on 26 August 2011 was not in fact a direction/instruction to return the BMW. I reject that argument. It is clear that the email sought, in very respectful terms, an acknowledgment from the Applicant that it would be OK for the Respondent to pick up the car and replace it with another.
[56] The reaction of the Applicant was to ignore this request. On her evidence, the Applicant was unable to return the car for the reasons outlined in paragraph [35] above. I do not accept these four claims by the Applicant provide a basis for finding the direction was unreasonable. On these points, while the Applicant may well have been too ill to drive the car, Ms. Liu’s request indicated she intended to pick the car up. Whether Ms Liu wanted the BMW for herself is not a basis for making the request unreasonable. There was no contractual entitlement to the BMW as already discussed and there was no basis not to accept the authority of Ms. Liu to request the return of the car.
[57] The evidence presented by the Respondent asserted that Ms Liu always indicated an exchange of cars would take place and that an exchange of cars had taken place in the past.
[58] However, I must also consider the conduct of Ms. Liu and the Applicant towards each other. The Applicant drew my attention to Qantas Airways Ltd v Cornwall 41 where the Full Court of the Federal Court stated;
“The question is whether there was a valid reason. In general, conduct of that kind would plainly provide a valid reason. However, conduct is not committed in a vacuum, but in the course of the interaction of persons and circumstances, and the events which lead up to an action and those which accompany it may qualify or characterise the nature of the conduct involved.”
[59] It was clear from the evidence presented that the relationship between Ms Liu and the Applicant was breaking down rapidly.
[60] The Applicant provided evidence that Ms Liu had, upon return to Australia and before directing the return of the vehicle, removed the Applicant from the “list of employees with signatory rights to the company cheque books” 42 and asked her to return her key.43 On 16 August 2011, the Applicant attended work at the Respondent’s premises but could not get in as a padlock, which had not previously been there, prevented her entry.44 On 22 August 2011, the Applicant became aware that the business credit card allocated to her had been cancelled.
[61] The Applicant also provided evidence that she became aware, on 7 September 2011 that she had been removed as a director of an associated entity of the Respondent on 16 August 2011. 45 The Applicant asserted that she had not signed any documents relating to her removal and had not been informed that she had been removed.46
[62] Against this evidence, Ms Liu claims that the Applicant engaged in conduct that had undermined their relationship. Ms Liu claims that when she started making changes to the retail side of the business, around July/August 2011, the Applicant did not like it. 47 Ms Liu alleged the Applicant had not told the truth about certain financial aspects of the business48, and alleged that the Applicant “refused to accept any of [her] directions or suggestions” for the running of the business.49 Ms Liu claims the Applicant would shout things at her.50
[63] The breakdown of the relationship and the conduct of Ms Liu may have been cause for the Applicant to be wary of returning the vehicle in circumstances where its replacement had not been specified. However I do not accept that the circumstances surrounding the directions to return the vehicle rendered that request unreasonable.
[64] If the Applicant had returned the vehicle and the Respondent had replaced with the vehicle with one that was inconsistent with the express term of the contract, the Applicant could have considered pursuing a remedy at that time.
[65] I therefore conclude that the directions to the Applicant, for her to return the company property (BMW) vehicle, were both lawful and reasonable directions. Accordingly, when the Applicant failed to comply with these directions, the Respondent had a valid reason to terminate her employment.
Acting in a way that destroyed or was likely to destroy the relationship of trust and confidence
[66] It is alleged by the Respondent, that the trust and confidence between the Applicant and Respondent was damaged when the Applicant made what the Respondent claims was a threat to expose in court proceedings information that would be detrimental to a member of Ms. Liu’s family. 51
[67] The Applicant denies that she threatened to expose information detrimental to Ms Liu or her family. She admitted that she had made reference to the period of time Ms Liu was absent from the country. 52 There was no satisfactory explanation arising from the evidence as to what the Applicant meant by this statement. She claimed in her evidence that it related to “getting her to understand how much it was going to cost both of us”.53 I do not accept that evidence as credible. There was little exploration of the conversation on cross examination of the Applicant. Ms. Liu tendered what were said to be notes of the conversation and the threat that was made.54 Neither witness was particularly credible in relation to this incident.
[68] In the circumstances, I believe the statement admitted to by the Applicant was, in the absence of a satisfactory explanation, an attempt to intimidate Ms. Liu. However, I cannot conclude on the evidence that the Applicant made the full range of threats as alleged. I don’t believe the statement admitted to by the Applicant is sufficient for me to conclude that the trust and confidence the respondent had with the applicant was destroyed by this exchange. Accordingly I cannot conclude that this incident was a valid reason for dismissal.
Section 387(b) - whether the person was notified of that reason
[69] The Respondent argued that the Applicant was “clearly notified of the reasons of the termination and the reasons why the Respondent was considering terminating her employment”. 55 The Applicant submits that she was not notified of the real reasons for her termination before she was given an opportunity to respond in the meeting.56
[70] The Respondent sent a letter to the Applicant dated 15 September 2011, seeking a meeting to discuss the Applicant’s personal comments on 12 September 2011. This letter advised that the Respondent considered her “...comments were extremely serious, threatening and inappropriate.” 57 The letter further provided that “the outcome of the discussions with you may result in disciplinary actions against you, which may include termination of your employment with [the Respondent].58
[71] On 23 September 2011, the Respondent sent a letter to the Applicant regarding the process for return of the company vehicle. This letter advised that “failure to carry out any of the instructions set out above could result in disciplinary action, including termination of your employment.” 59
[72] I find the Applicant was notified of the reasons related to capacity or conduct.
Section 387(c) - whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person
[73] As advised by letters dated 15 September 2011 60 and 20 September 201161, the Applicant and Respondent held a meeting on 28 September 2011.
[74] The Respondent submitted that the evidence of Ms Liu of her meeting with the Applicant on 28 September 2011, “...clearly shows the Applicant was given an opportunity to respond to the allegations the Respondent put to her.” 62
[75] The Applicant argued that she was given a limited opportunity to respond during the meeting of 28 September 2011. The Applicant conceded that while an opportunity to respond to the allegations was given, the process was open to criticism and was not in itself fair.
[76] The Applicant claimed the meeting of 28 September 2011 consisted of Ms Liu “reading from a document titled Performance Management Meeting”. 63 The Applicant claimed that she “...could tell that the document had not been written by [Ms Liu as] it was not the way she wrote and was very legalistic....[Ms Liu] followed the document to the word, there was no chance [for Ms Liu and the Applicant] to discuss anything because [sic] would not deviate from the script.”64
[77] The Applicant alleged that “[a]t the meeting there was no opportunity for [her] to actually respond to the allegations about the 12 September 2011 conversation, or the return of the BMW. [Ms Liu] had already made up her mind because she did not respond when [the Applicant] gave answers or asked questions. The document suspended [the Applicant] even though it was drafted before [she] gave [her] responses.” 65
[78] The Applicant chose not to respond to allegations and queries from her employer at the 28 September 2011 meeting because she felt a decision regarding her employment had already been made. This was particularly the case given the actions of the Respondent which had preceded the meeting:
“(a) the cancellation of the Applicant’s credit card;
(b) the removal of the company cheque book and of the Applicant from the list of employees with signatory rights to the company cheque book;
(c) the removal of the Applicant as a contact person for the security register;
(d) the chain and padlocking of the Respondent’s premises so the Applicant couldn’t enter;
(e) the covert removal of the Applicant as a Director of Sik Fashions;
(f) Ms Liu’s attempts to undermine and micromanage the Applicant;
(g) Ms Liu’s comments [to another] that she was managing the Respondent;
(h) Ms Liu’s covert alteration to the Respondent’s company details;
(i) the fact that the suspension of the Applicant was predetermined before the Meeting; and
(j) Ms Liu’s request for the Applicant to give up her keys and other company items before, and at the conclusion of, the Meeting.” 66
[79] The Applicant referred me to the decision of Moore J in Wadley v YMCA Canberra 67 which dealt with a precursor provision to s.387(c) of the Act, where His Honour stated;
“In my opinion the obligation imposed on an employer by [the precursor provision] has, for present purposes, two relevant aspects. The first is that the employee must be made aware of allegations concerning the employee’s conduct so as to be able to respond to them. The second is that the employee must be given an opportunity to defend himself or herself. The second aspect, the opportunity to defend, implies an opportunity that might result in the employer deciding not to terminate the employment if the defence is of substance. An employer may simply go through the motions of giving the employee an opportunity to deal with allegations concerning conduct when, in substance, a firm decision to terminate had already been made which would be adhered to irrespective of anything the employee might say in his or her defence. That, in my opinion, does not constitute an opportunity to defend.”
[80] I am satisfied on the evidence before me that the Respondent had decided to terminate the Applicant prior to the meeting of 28 September 2011 and did not afford the Applicant an opportunity to respond. I am satisfied the Respondent went “through the motions of giving the employee an opportunity to deal with the allegations concerning conduct, when, in substance, a firm decision to terminate had already been made”.
Section 387(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.
[81] It was uncontested evidence that whilst the Respondent initially objected to the Applicant having a support person attend the meeting of 28 September 2011, a support person was in fact present at the meeting.
Section 387(e) - if the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal
[82] This is not a relevant consideration, as unsatisfactory performance was not a reason for dismissal.
Section 387(f) - the degree to which the size of the employer’s enterprise would be likely to impact on procedures followed in effecting the dismissal
[83] It was agreed between the parties that the Respondent is not a small business as defined in the Act. 68 The Respondent is however, a relatively small enterprise employing approximately 19 people at the date of dismissal.69 While the small size of the Respondent is a consideration, it was clear on the evidence of Ms. Liu that she relied heavily on advice from VECCI up to and including the dismissal. In this circumstance, the size of the Respondent’s business does not impact on the procedure followed in effecting the dismissal.
Section 387(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
[84] The Respondent does not have internal human resources specialists or expertise. 70 It was argued before me that the Respondent had been represented by the Victorian Employer’s Chamber of Commerce and Industry (VECCI) at the time of the dismissal. I agree with the submissions of the Respondent that “[t]he Act does not require Fair Work Australia to consider whether it was represented at the time of a person’s dismissal. It only states whether or not there is HR expertise within the enterprise”.71
Section 387(h) - any other matters FWA considers relevant.
[85] The Applicant submits that notwithstanding the failure to return the BMW, the dismissal was not justified because it was an excessive response in all of the circumstances. I am attracted to that view.
[86] I do not suggest for a moment that a failure to return a motor vehicle as directed could not be used as a reason for termination of employment. However, one needs to consider the totality of the circumstances in each case.
[87] The Applicant was a longstanding employee and she had an impeccable employment history. Prior to the deterioration of the employment relationship, she had been an integral part of the Respondent’s business. There was evidence that the Applicant had been rewarded for her service by the Respondent paying the Applicant a “ten year anniversary bonus”. There was no evidence led before me of any prior disciplinary warnings or other issues.
[88] In light of this evidence, I do consider summary dismissal of the Applicant for the non return of the vehicle to be a disproportionate response to the conduct of the Applicant.
CONCLUSION AS TO THE NATURE OF DISMISSAL
[89] For the reasons set out above, I find that the Respondent had a valid reason to dismiss the Applicant from her employment, I therefore find that the dismissal was not unjust or unreasonable.
[90] However, I have found procedural defects in the manner of the dismissal, particularly with regard to the conduct of the 28 September 2011 meeting. I have also found that the dismissal was a disproportionate response in all of the circumstances. Given these findings, I have found that the dismissal was harsh.
REMEDY
[91] The relevant provisions of the Act pertaining to remedy are contained in section 390 of the Act:
“390 When FWA may order remedy for unfair dismissal
(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.
Note: Division 5 deals with procedural matters such as applications for remedies.
[92] It also necessary to consider section the Objects of Part 3-2 especially section 381(c) of the Act which provides that an object of that Part of the Act is to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.
[93] The presumption in the legislation is that should a dismissal be found to be unfair, that reinstatement is the primary remedy and that compensation is a secondary consideration if reinstatement is not appropriate.
[94] In this matter, the applicant does not seek reinstatement. 72 The Applicant has secured further employment as of 12 April 2012.
[95] Reinstatement in the circumstances of this case is not an appropriate remedy. The Applicant has successfully secured further employment and does not seek reinstatement. It is clear on the evidence that the employment relationship was under considerable strain prior to the termination of the Applicant. The Respondent is not a large business and Ms. Liu and the Applicant would need to continue to work in close proximity.
[96] Having determined that reinstatement is not appropriate I must consider what compensation, if any, is payable.
[97] The Act provides for compensation as a remedy for unfair dismissal.
“392 Remedy—compensation
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.
Misconduct reduces amount
(3) If FWA is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, FWA must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.
Shock, distress etc. Disregarded
(4) The amount ordered by FWA to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.
Compensation cap
(5) The amount ordered by FWA to be paid to a person under subsection (1) must not exceed the lesser of:
(a) the amount worked out under subsection (6); and
(b) half the amount of the high income threshold immediately before the dismissal.
Note: subsection 395(5) indexed to $61,650 from 1 July 2012
(6) The amount is the total of the following amounts:
(a) the total amount of remuneration:
(i) received by the person; or
(ii) to which the person was entitled;
(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and
(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.
393 Monetary orders may be in instalments
To avoid doubt, an order by FWA under subsection 391(3) or 392(1) may permit the employer concerned to pay the amount required in instalments specified in the order.
[98] In all of the circumstances, I consider that the award of some amount of compensation is appropriate.
[99] In determining the amount of compensation, I must have regard to “all the circumstances of the case” including each of the paragraphs in s.392 (2) as set out above. No one matter is paramount but regard must still be had to each of them. 73
[100] The general approach to the calculation of compensation was well set out by the Full Bench in Tabro Meat Pty Ltd v Kevin Heffernan 74 and I will follow that approach in determining this matter.
Remuneration that would have been received (s392(2)(c))
[101] The Applicant’s gross average weekly earnings were established in the proceedings before Commissioner Bissett. Commissioner Bissett established that the Applicant’s annual earnings were $108,300.20. I will use this amount as the basis for calculating the amount of compensation to be awarded in this case.
[102] The Respondent submits that if the termination of employment had not occurred, the Applicant’s attitude, performance and conduct in her position would have resulted in her employment being terminated in accordance with the procedural requirements of the Act in “the very near future” assuming that conduct continued.
[103] Counsel for the Applicant submitted that, “...yes, the relationship was breaking down between the applicant and Ms. Liu and it was clearly deteriorating but contrary to what they say there is no evidence to suggest that the employment relationship would have been terminated in accordance with the procedural requirements of the Act.” 75
[104] I think it is reasonable to assume that, but for the dismissal, that in all of the circumstances the employment relationship would have ended in the near future. The evidence is clear the employment relationship was rapidly breaking down. I think it is reasonable to assume that the employment of the Applicant would have continued for a further period of 10 weeks.
[105] Accordingly, I calculate the remuneration that the Applicant would have received or would have been likely to receive, if her employment had not been terminated, at $20,826.95 plus 9% superannuation.
Remuneration earned (s. 392(2)(e))
[106] The Applicant was unemployed from the date of her termination (29 September 2011), to 12 April 2012, a period of 28 weeks. Since 12 April 2012, the Applicant has been employed.
[107] Counsel for the Applicant submitted that the remuneration for the Applicant’s subsequent position is $70,000.00 plus a $5000 car allowance.
[108] In Ellawalla v Australian Postal Corporation 76, with respect to a precursor provision, the Full Bench stated that “[o]nly monies earned during the period from termination until the end of the anticipated period of employment are deducted”. Therefore, there is no deduction made for that amount as it is clear that amount was earned after the 10 weeks following her dismissal.
Income reasonably likely to be earned (s.392(2)(f))
[109] There is no need to deduct anything for the income reasonably likely to be earned by the Applicant between the making of any order for compensation and the actual compensation as this period is outside the period of time in which I have concluded the employment was likely to have continued.
Other matters (s.392(2)(g))
[110] Ordinarily a deduction for contingencies is appropriate. However, I make no such deduction in this case as there is no consideration of an anticipated period of employment that is not actually known. i.e. a period that is prospective to the date of the decision. 77
[111] There are no other matters that are relevant to the determination of compensation other than ss.392(2)(a),(b) and (d), 392(3) and 392(5) of the Act. I will turn to those factors now.
Viability (s.392(2)(a))
[112] There was some consideration of the financial position of the Respondent in the evidence. The Respondent submitted that I should have regard to its financial position. However, there was no evidence to suggest that an order for the payment of the amount contemplated to the Applicant would affect the viability of the Respondent.
Length of Service (s.392(2)(b))
[113] The Applicant was employed by the Respondent for 11 years. This is quite a lengthy period of employment. I do not find that length of service provides a basis for reducing the amount of compensation.
Mitigation Efforts (s.392(2)(d))
[114] Evidence was provided by the Applicant as to the efforts she went to in the period after the dismissal to secure alternative employment. Exhibit LS24 is a copy of the numerous employment applications that the Applicant made. The applications commenced in early October 2011, soon after the dismissal. It appears from exhibit LS24 that a significant number of applications were made by the Applicant, perhaps in the order of 500 or so applications. The Applicant was successful in securing employment by April 2012. Her mitigation efforts are considerable and sufficient to exclude any deduction from the quantum of $20,826.95 plus 9% superannuation.
Misconduct (s.392(3))
[115] I have found that the Applicant was dismissed for a valid reason and that reason relates to misconduct associated with her refusal to return the motor vehicle. I am satisfied that the misconduct of the Applicant contributed to the employers decision to dismiss the person.
[116] I must therefore reduce the amount that I would otherwise order by an appropriate quantum on account of the misconduct. In the circumstances, I deduct 15% having regard to the nature of the misconduct and its effect. The deduction of 15% to the amount I would otherwise order ($20,826.95 plus 9% superannuation) results in an amount of $17,702.90 plus 9% superannuation.
Compensation Cap (s.392(5))
[117] As the amount of $17,702.90 plus 9% superannuation is less than the compensation cap as outlined in s. 392(5) of the Act, I make no further deduction for that reason.
CONCLUSION AND ORDER
[118] I find that the Applicant was unfairly dismissed within the meaning of the Act.
[119] I find that reinstatement is not an appropriate remedy in this case.
[120] I find that compensation is appropriate.
[121] I am satisfied that an order for payment of compensation by the Respondent of $17,702.90 gross plus 9% superannuation less tax as required by law, to the Applicant in lieu of reinstatement is appropriate in all the circumstances of the case. It accords a fair go all round to both the Respondent and the Applicant.
[122] The compensation payment, less any required deduction in taxation, is to be made within 14 days of this decision.
[123] An Order [PR527474] to this effect has been issued with this decision.
COMMISSIONER
Appearances:
A Galbraith of Counsel for the Applicant
A Colquhoun of Victorian Employers’ Chamber of Commerce and Industry for the Respondent
Hearing details:
2012
Melbourne:
June 7
1 Witness Statement of Ms L Liu, filed 8 May 2012, [6]
2 Respondent’s outline of submissions, filed 8 May 2012, [20]
3 Ibid, [1]
4 PN1144
5 Exhibit JL-21 to witness statement of Ms L Liu and Exhibit LS20 to witness statement of Ms L Slavin
6 Exhibit LS26, tendered 7 June 2012
7 Witness statement of Ms L Slavin, filed 17 April 2012, [8].
8 Exhibit JL-1 to witness statement of Ms L Liu and Exhibit LS23 to witness statement of Ms L Salvin
9 Witness statement of Ms L Slavin, [4]
10 Ibid
11 Ibid
12 Ibid
13 Witness statement of Ms L Slavin, [5]
14 Statement of Mr X Chen, filed 8 May 2012, [6]
15 Witness statement of Ms L Slavin, [17]
16 Ibid
17 Witness statement of Ms L Slavin, [21]
18 Exhibit AC-2 to witness statement of Mr X Chen
19 Statement of Ms L Liu, [22]
20 Witness Statement of Ms L Slavin, [48]
21 Ibid
22 Exhibit LS10 to witness statement of Ms L Slavin
23 Statement of Ms L Liu, [39]
24 Witness statement of Ms L Slavin, [54] - [57]
25 Exhibit LJ-17 to witness statement of Ms L Liu
26 Exhibit LJ-18 to witness statement of Ms L Liu
27 Statement of Ms L Liu, [46]
28 Respondent’s outline of submissions, [37] - [38]
29 (1938) 60 CLR 601
30 R v Darling Island Stevedoring & Lighterage Co Ltd; Ex parte Halliday & Sullivan, (1938) 60 CLR 601 at 621
31 Applicant’s further outline of submission, [69]
32 (1938) 60 CLR 601
33 Applicant’s further outline of submissions, [58]
34 Ibid [70] - [72]
35 Statement of Mr X Chen, [6]
36 See clause headed “Variation” in Exhibit JL 1
37 (1977) 52 ALJR 20
38 (1977) 52 ALJR 20 at 26
39 Exhibit AC-2 to witness statement of Mr X Chen
40 PN1312
41 [1998] FCA 483
42 Witness Statement of Ms L Slavin, [33]
43 Ibid
44 Witness Statement of Ms L Slavin, [42]
45 Witness Statement of Ms L Slavin, [58]
46 Witness Statement of Ms L Slavin, [59]
47 Statement of Ms L Liu, [19]
48 Statement of MS L Liu, [21]
49 Statement of Ms L Liu, [22]
50 Ibid
51 Respondent’s outline of submissions, [25] - [33]
52 Statement of Ms L Slavin, [7], [9] and [65]
53 PN1079
54 Exhibit JL 13
55 Respondent’s outline of submissions, [42]
56 Applicant’s further outline of submissions, [89]
57 Exhibit JL - 15 to Statement of Ms L Liu
58 Ibid
59 Exhibit JL-17 to Statement of Ms L Liu
60 Exhibit JL - 15 to Statement of Ms L Liu
61 Exhibit JL - 16 to Statement of Ms L Liu
62 Respondent’s outline of submissions, [43]
63 Witness statement of Ms L Slavin, [91]
64 Witness statement of Ms L Slavin, [92]
65 Witness statement of Ms L Slavin, [103]
66 Applicant’s further outline of submissions, [88]
67 [1996] IRCA 568
68 PN1144
69 Witness statement of Ms L Liu, [1]
70 PN2673
71 Ibid
72 Applicant’s further outline of submissions, [128]
73 Tempo Services Limited v Klooger and Others, PR953337, [22]
75 PN2603
76 Print S5109
77 Enhance Systems Pty Ltd v James Cox, PR910779, [39]
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