[2014] FWC 2024

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jade Urand
v
Beaconsfield Children’s Hub
(U2013/2754)

DEPUTY PRESIDENT HAMILTON

MELBOURNE, 31 MARCH 2014

Application for an unfair dismissal remedy - jurisdictional objections - section 386 - section 387- constructive dismissal - dismissal was harsh, unjust and unreasonable.

[1] On 15 August 2013 Ms Jade Urand lodged an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (‘the Act’). The matter was conciliated and no settlement was reached.

[2] The employer submitted that the applicant resigned from her position, and that there was no dismissal within ss.385, 386 and 394(1). The applicant submitted that she was constructively dismissed and that the dismissal was harsh, unjust and unreasonable.

[3] I have had regard to all the submissions and evidence put 1.

Constructive dismissal

[4] Section 386 of the Act states:

386 Meaning of dismissed

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

[5] There are a range of authorities regarding what constitutes a constructive dismissal. It is clear that a reduction in hours or pay can be a constructive dismissal. A contract of employment is a contract to perform employment services in return for pay. The pay is central to such a contract and a substantial reduction in pay, quite obviously, can be a central issue to both parties. In Taylor v Port of Burke Hotel 2 this is made clear. Similarly, in Field v Returned Services League Mount Gambier, Sub-Branch and Memorial Club3, a reduction of hours was found to be a repudiation of the contract. In Allied Express Transport Pty Ltd v Maria Anna Owens4, a Full Bench of the Commission came to a similar conclusion, and I refer to paragraph 28 of the reasons, where a salary of $70,000 was reduced to $52,000. The reduction in hours in this case appears to be greater than that, from four shifts to two shifts a week, with only the possibility of additional shifts.

[6] The sequence of events in this matter is that the hours of the shifts worked by the applicant were reduced from five days to four days and then to two days. A reduction from four days to two days occurred on 25 July 2013. There is varying evidence in this matter. There is a warning letter allegedly given to the applicant, dated 17 May 2013. The applicant denies receiving it. There is an appraisal form completed by the employer which is largely positive. There are notes of discussions completed by Ms Doyle, which are denied in many respects by the applicant. In relation to the notes attached to exhibit D1, the formal title of which is, “File note for Jade Urand”, Ms Doyle claims, under the heading 25/7/2013, that a meeting occurred and that certain statements were made by herself and the applicant, Ms Urand.

[7] It stated, and I quote:

“12.30

We have been assessing our centre recently and with the dynamic change at our service have had to cut back on shifts for our casual staff. Jade, who worked full time with the company since - had recently been taken out of her room leader position due to not fulfilling her role; causing stress on the other staff and being absent from work a lot. Notes made on Jade see.

On stepping down, Jade had requested that she take on shorter shifts as she can’t work for long days any more. We discussed putting her on shorter shifts Monday to Friday, to be here to cover planning and 10 minute breaks.

This role had been working well, but due to changing numbers in our centre we have been over staffed some days while other days right on.

Jade requested to meet with me and asked why she only had two shifts for next week.

I explained that we have to tighten things up in relation to our staffing as requested by the Fenn family. I pointed out that, ‘While you have two shifts, that is not to say that you won’t get more hours, we need to go by day to day’.

Jade said that she cannot survive on 2 shifts and that she would have to give notice.

I replied, ‘Well if you feel you need to do that but I don’t think it is necessary’.

She said, ‘Well I am sick of it all’ and she doesn’t feel appreciated.

Claire asked Jade to put her notice in writing. I asked her when she feels she would look to finish up. Jade replied ‘Today’.

I thanked Jade and then the meeting ceased at 12.35.”

[8] What is clear, is that even on the employer’s own version of events, the employer had reduced the shifts of Ms Urand from four to two shifts for next week and that, as conceded by the employer, there was a possibility only, no guarantee, that there would be more shifts than two a week. This is a substantial reduction in shifts and a substantial reduction in pay, if you have regard to exhibit U3. Even on the employer’s own version of events, Ms Urand makes it quite clear “that she cannot survive on two shifts and that she would have to give notice”. That is a statement by Ms Urand at the meeting that she is being forced to resign. Then arrangements are made by the employer, on their own version of events, namely that Ms Urand is asked to give notice in writing and it is arranged that Ms Urand would finish on that day. So that is the employer’s own version of events and it is a version of events which leads inexorably from a substantial reduction of hours, to the giving of notice, to making arrangements for that notice to be formalised in writing and then making arrangements for the employment to finish on that day.

[9] The version of events given by Ms Urand in exhibit U1, is in essence not particularly different to that version of events. In exhibit U1, paragraph 10, Ms Urand checks the roster and notes she has only been given two shifts as opposed to her previous four. She immediately speaks with Ms Doyle about the arrangement and Ms Doyle advises she was working on instructions from the Fenn family, who had decided to “to make some changes and reshuffle”. Ms Urand says:

“I then advised Ms Doyle that I could not afford to work 2 shifts per week, that she had broken her promise to me and that I felt I had no other option but to resign. Her response were words to the effect of, ‘Ok, when do you want to finish?’ It was obvious to me that she had anticipated and expected my resignation.”

[10] On both versions of events, the same events occur. First of all, there is a substantial reduction of hours and pay from four shifts a week to two shifts a week with only the possibility of additional shifts. Secondly, that Ms Urand indicates that this forces her to resign. Thirdly, arrangements are made for Ms Urand to resign and then to leave employment. A number of various versions of these events was given in evidence, however in essence the version of events is common to both sets of evidence.

[11] On both versions of events it cannot be said that Ms Urand left her employment of her own volition. Rather, she was forced to resign because of a very substantial reduction of hours and she made that plain at the time. The extent of the reduction of the hours and the circumstances of the reduction led her to tender her resignation. I note that, in many respects, Ms Urand was not challenged in cross-examination on those issues. In my view, there was a constructive dismissal within s.386 of the Act and Ms Urand’s employment was terminated.

Unfairness of dismissal

[12] We then come to the issue of s.387 of the Act. Was the dismissal harsh; unjust; unreasonable?

[13] Section 387 of the Act states:

387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC 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.

Valid reason

[14] The employer conceded that there was no valid reason for termination of employment within s.387(a) of the Act. I would have, in any event, come to that conclusion if the concession had not been made. As I mentioned before, a number of documents are relevant to this issue, namely a warning letter of 17 May 2013, which was allegedly given to Ms Urand by Ms Doyle. Ms Urand denies receiving it and Ms Doyle says that she did give it to her. There is a largely positive appraisal of the performance of Ms Urand in which Ms Urand is certified as good or above in relation to organisation and implementation of educational programme. She is rated as good, very good and excellent in relation to work habits; is rated as largely good, very good and excellent in relation to training in curriculum, although there is one alleged difficulty, insufficient skills maintained in relation to paragraph 9. She is rated as not good or very good, or satisfactory but excellent in relation to interactions with children; which is of course central to a workplace such as this, and excellent in relation to interactions with families. In relation to educators and management, Ms Urand is rated as mostly competent in a range of tasks, most of the time but more often, in four rather than two cases, very good, she demonstrates competence skills at all times.

[15] Now those are very positive ratings made by the employer on 5 July 2013, shortly before what I have found to be a termination of employment on 25 July, so it is just under three weeks later. It is true that there are a number of written comments, which are perhaps less positive in nature. There are file notes for J. Urand, allegedly completed by Ms Doyle, which contain a range of somewhat negative comments about the performance of Ms Urand, each of which has been denied in giving evidence by Ms Urand. Once again, I recall that Ms Urand was not cross-examined on many of those, if any. There were also questions raised about the prominence of the notes and other matters.

[16] In all the circumstances the positive appraisal means that there cannot be a valid reason for termination of employment. It is an expressed written view by the employer that there are no valid reasons for termination of Ms Urand’s employment.

[17] On the material before me, having regard to the observations in Selvachandran v Peteron Plastics Pty Ltd  5 about the nature of a valid reason, I am unable to be satisfied that there was a valid reason for termination of Ms Urand’s employment within s.387(a) of the Act.

Notification of a valid reason

[18] Secondly, given that is the case, it also follows that Ms Urand was not “notified of any valid reason” within s.387(b) of the Act.

Opportunity to respond

[19] I relation to s.387(c) in my view, she was not given an “opportunity to respond to any reason related to capacity or conduct of a person”. While the notes record a number of interactions between Ms Doyle and Ms Urand, I am unable to be satisfied that those notes accurately record an opportunity being given to respond to reasons. I have not found that Ms Doyle’s evidence is untrue, or that Ms Urand’s evidence is correct; rather this is a matter of me not being satisfied on the very limited material before me, that those notes constitute an opportunity to respond within s.387(c).

Refusal of a support person

[20] Section 387(d) “any unreasonable refusal by the employer”. There is no such unreasonable refusal by the employer to have a support person present. This factor is not relevant.

Unsatisfactory performance

[21] Within s.387(e) is the “dismissal related to unsatisfactory performance where the person had been warned”? I am not satisfied that this is the case on the evidence before me.

Size of the employer’s enterprise and absence of dedicated human resource management

[22] In relation to ss. 387(f) and (g) this is a smaller enterprise and lacks specialist human resource functions. Therefore some account must be taken of the nature of the termination procedures and some allowance must be given to the employer for the manner in which these matters were conducted. In such enterprises there is often a degree of informality and a degree of day to day discretionary judgment by managers, which I have documented.

Any other relevant matters

[23] In this case, the sequence of events was that on 22 July 2013, the employer became aware that Ms Urand had made a witness statement against their interests in another proceeding. Three days later, after the respondent received that statement, Ms Urand’s hours were reduced. The explanation offered by the employer is that it was not simply Ms Urand’s hours that were reduced, rather the hours of a number of other employees were similarly affected and that accounted for the reduction in hours rather than some form of response to Ms Urand’s evidence. I am unable to find, in the material before me, that there was some form of improper response to Ms Urand giving evidence.

Conclusion on Unfair Dismissal

[24] I have taken into account all the submissions and material put to me and I note again, that it is a matter of agreement that there was no valid reason for termination of employment.

[25] I find that the dismissal was harsh, unjust and unreasonable. Ms Urand was not accorded a fair go all round.

[26] By agreement the issue of remedy will be dealt with by written submissions.

DEPUTY PRESIDENT

Appearances:

Mr A Kelemen for the applicant

Ms S Kane for the respondent

Hearing details:

2014

Melbourne

20 March