[2018] FWC 2080 [Note: An appeal pursuant to s.604 (C2017/2732) was lodged against this decision and the order arising from this decision - refer to decision dated 25 May 2018 [[2018] FWC 2967] for result of appeal.]
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Nichole Knutson
v
Chesson Pty Ltd T/A Pay Per Click
(U2017/13095)

COMMISSIONER CAMBRIDGE

SYDNEY, 1 MAY 2018

Unfair dismissal - no valid reason for dismissal - harsh, unjust and unreasonable dismissal - compensation Ordered.

[1] This matter involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009 (the Act). The application was lodged at Sydney on 9 December 2017. The application was made by Nichole Knutson (the applicant) and the respondent employer is Chesson Pty Ltd T/A Pay Per Click (ACN: 103 244 695) (the employer).

[2] The application indicated that the date that the applicant’s dismissal took effect was 27 November 2017. Consequently, the application was made within the 21 day time limit prescribed by subsection 394 (2) of the Act.

[3] The matter was not resolved at conciliation, and it has proceeded to arbitration before the Fair Work Commission (the Commission) which has involved a Hearing conducted in Sydney on 22 March 2018.

[4] At the Hearing, each of the Parties were unrepresented, as the Commission had earlier issued a Decision [2018] FWC 958 which refused permission that had been sought by the employer to be represented by lawyers or paid agents. The applicant gave evidence as the only witness called in support of her unfair dismissal claim, and the employer’s Director, Mr Stephen Paul Murphy was the only witness who provided evidence for the employer. Mr Murphy cross-examined the applicant, who then in turn, cross-examined Mr Murphy.

Factual Background

[5] The applicant commenced employment with the employer in November 2014. The applicant was engaged in a position that was described as an Online Campaign Manager.

[6] The employer is a small business that has, according to information contained in the Form F3 - Employer Response to Unfair Dismissal Application, employed eight employees. However, the Form F3 also indicated that the employer did not raise any objection to the unfair dismissal application on the basis that the dismissal, if there was a dismissal, was consistent with the Small Business Fair Dismissal Code.

[7] The employer conducts a business described as an online digital marketing agency. This business provides services to develop and promote web sites and improve the reach and performance of client’s web sites. The applicant was engaged to work from the employer’s business premises located at Kalang Road in the Sydney suburb of Elanora Heights.

[8] The terms of engagement of the applicant were reflected in an employment contract document that inter alia, stipulated the hours of work as “9.00 – 5.00 Monday to Friday, with Hour Lunch Break per day, with flexibility depending on client liaison requirement.” 1 The applicant commenced on a remuneration level of $50,000.00 plus 9.5% superannuation.

[9] The work of the applicant was without recorded complaint, and apparently of such a pleasing standard so as to attract pay rises in March 2015, January 2016, and November 2016. The most recent pay rise for the applicant occurred on 6 September 2017, at which time her remuneration was increased from $65k to $70k.

[10] Shortly after the applicant had received the pay rise to $70k, the employer provided the applicant, and other employees, with revised contract of employment documents. The applicant raised some concerns about changes that the employer proposed in the revised contract of employment document. In particular, the applicant advised the employer that the proposed extension to the stipulated daily hours of work, from 9am to 5pm (1/2hr lunch) to 9am to 5:30pm (1hr lunch), would preclude her attendance at pre-paid Pilates classes on Mondays and Wednesdays.

[11] The applicant documented her concerns and these matters were discussed during a meeting with the employer held on 18 October 2017. There was some level of agreement reached with the employer about the applicant’s concerns. However, in an email sent to the employer on 30 October, the applicant reiterated that she was unable to make alternative arrangements for her pre-paid Pilates classes. In this email the applicant indicated that the negotiations surrounding the revised employment contract was impacting on her “stress levels” and she proposed that the hours of work in her employment contract be amended so that on Mondays and Wednesdays she would work until 5:15pm rather than 5:30pm, with a correspondingly shortened 45 minute lunch break on those two days. The applicant also sought other changes relating to a restraint clause, and the removal of the words “including on weekends and public holidays” from the hours of work clause.

[12] On 2 November 2017, the employer’s Director, Mr Murphy sent an email to the applicant in response to the ongoing issues surrounding the revised employment contract. Mr Murphy advised that the restraint clause would be removed. However, he rejected the applicant’s proposed alteration to the hours of work involving a 15 minutes earlier finish on Mondays and Wednesdays. Mr Murphy’s email of 2 November stated, inter alia:

“The business requires staff to be flexible and in particular the business needs to be responsive to client’s [sic] between the hours of 9 to. 5.30, with a 1 hour lunch break.

We feel that the contract is fair and reasonable, because our clients require this level of service

We would like you to remain, in the employment, but to do so, as previously mentioned, you would need to sign the new employment contract.

If you still feel, you cannot and do not wish to sign, I need to find staff that will support the business as it grows and continually changes.”

[13] On 6 November 2017 at 5:30pm, the applicant sent an email to Mr Murphy which relevantly stated:

“I have agreed to extend my working hours by 2 hours a week, but due to the inability to meeting me in the middle from 2.5 hours by allowing me to leave at 5:15pm on Monday and Wednesdays, I will not be signing the new contract.”

[14] Later that evening, at 8:53pm, Mr Murphy sent an email to the applicant which relevantly stated:

“I have stated that if you decide not to sign the employment contract, I need to find staff that will support the business.

Therefore, sadly I need to inform you are now on notice and will work out your notice period.

Post which, you will no longer be employed by PayPerClick”

[15] On the following day, 7 November 2017, at 8:36am, the applicant sent email advice to the employer indicating that she had sought medical advice and would not be returning to work until 20 November 2017, as instructed by her Doctor. The applicant provided the employer with a Medical Certificate dated 2 November, which confirmed that the applicant was unfit to attend work from 2/11/2017 to 17/11/2017.

[16] On 7 and 10 November 2017, the applicant sent further emails to the employer seeking, inter alia, confirmation of the date of termination of her employment. The applicant did not receive any immediate response to these emails and in the following week she engaged lawyers to communicate with the employer on her behalf.

[17] On 14 November 2017, the employer sent the applicant an email that was entitled “Discrepancy with Doctors Note”. The employer challenged the validity of the Medical Certificate which had been provided on 7 November 2017, and covered the period from 2 November to 17 November 2017. The employer noted that the applicant had worked on 2, 3 and 6 November which were days covered by the Medical Certificate. Lawyers acting for the applicant advised the employer that the applicant had felt well enough to attend work on those days, and that her attendance for some of the days covered by the Medical Certificate did not invalidate it.

[18] Over the following two weeks a series of letters transacted between lawyers acting for the applicant and those acting for the employer. These communications variously contested the circumstances surrounding the termination of the employment of the applicant and whether she was entitled to be paid personal leave for the period covered by the contested Medical Certificate. As this contest unfolded the applicant obtained a further Medical Certificate dated 23 November 2017, from the Doctor that had provided the initial medical certificate dated 2 November 2017. The further Medical Certificate advised that the Doctor was aware that the applicant had attended for work on the 3rd and 6th of November which were days covered by the initial Medical Certificate. The further Medical Certificate also stated:

“That she attended work on these days does not invalidate the medical certificate and grounds that she was unfit to attend. Rather, it is more a sign of her diligence and sense of responsibility to the company and this is to her credit.

She was advised at the time to rest and take some time away with friends to improve her health. It seems she took this advice as noted by social media photo’s [sic] which I was very glad to see.

I have seen Nicole repeatedly since then and she has clearly unfit to continue with the current employer at this time.”

[19] The communications between the lawyers respectively acting for the applicant and the employer culminated in a letter dated 28 November 2017, from the employer’s lawyers. This letter confirmed that the employer did not accept that the applicant provided evidence that would satisfy a reasonable person that she was unfit for work because of personal injury or illness. Further, the letter of 28 November stated that:

“Our client will be paying Ms Knutson’s termination entitlements in its normal pay run tomorrow. This will be her untaken annual leave as accrued up to the point where she went on leave.”

[20] Consequently, the applicant was paid wages up until the last day of any actual performance of work, 6 November 2017, and on or about 30 November 2017 she was paid her accumulated annual leave entitlements calculated as at 6 November 2017. There was no payment made for either personal leave or notice in the period between 6 and 30 November 2017.

[21] The applicant has not sought reinstatement as a remedy for her alleged unfair dismissal but has instead sought payment of monetary compensation. On 5 March 2018, the applicant commenced new employment.

The Case for the Applicant

[22] The applicant made oral submissions during the Hearing, and she provided documentary material which included various submissions together with written reply material. The applicant submitted that her dismissal was unfair.

[23] The submissions made by the applicant asserted that her dismissal was unfair because the employer had terminated the employment because the applicant refused to sign a new employment contract. The applicant submitted that her dismissal was unfair because it was not based upon any performance or conduct issues but was merely because the employer wanted to change the conditions of her employment to which she would not agree.

[24] The applicant said that she had sought to negotiate a compromise position regarding the proposed new contract terms extending the daily hours of work to 5:30pm. The applicant submitted that the employer was not willing to come to what she had proposed as a compromise arrangement involving a 5:15pm finish on Mondays and Wednesdays.

[25] The further submissions made by the applicant asserted that her dismissal was unfair because the employer had failed to provide notice in accordance with s. 117 of the Act. The applicant made submissions which complained about a period of 11 days delay before the employer responded to her requests for clarification of the date of termination of the employment. The applicant said that it was not until she had engaged the assistance of lawyers before the employer responded to her repeated requests for clarification of the details of the termination of her employment.

[26] The applicant also submitted that the employer had refused to honour her Medical Certificate which confirmed her absence on personal leave. Therefore, according to the submissions made by the applicant, the employer had acted in breach of s. 97 of the Act when it had refused to make payment of her personal leave.

[27] In summary, the applicant submitted that her dismissal was unfair. The applicant clarified that she was seeking financial compensation for remuneration lost in the period from her dismissal until she obtained new employment.

The Case for the Employer

[28] Mr Murphy appeared on behalf of the employer and he submitted that the dismissal of the applicant was not unfair. Mr Murphy had filed a written outline of submissions which became Exhibit 5, and he supplemented this material with verbal submissions.

[29] The submissions made by Mr Murphy asserted that the employer had sound commercial reasons for seeking to alter the daily hours of work for the applicant. The submissions made by Mr Murphy stated that the employer needed staff to be available until 5:30pm to respond to queries from clients, so they would get excellent customer service from the employer.

[30] Further, the submissions made by Mr Murphy stated that the employer believed that it had listened and negotiated wherever possible to alleviate any of the concerns that had been raised by the applicant. The employer submitted that once the applicant had decided not to sign the new employment contract, Mr Murphy informed her she was on notice and this information was provided via email on the evening of 6 November 2017. On the following morning, 7 November 2017, the applicant provided a Medical Certificate to cover a two week period which was the entirety of her notice period. Mr Murphy submitted that it was reasonable and natural for the employer to have concern and to question how the “sick note” could be provided the following day at 8:30am.

[31] Mr Murphy said that the applicant was provided with an opportunity to explain how she could produce the Medical Certificate which covered a period during which she initially worked. Further, Mr Murphy submitted that the Medical Certificate was inconsistent with multiple social media posts that the applicant had made during the period of the alleged sickness. Mr Murphy submitted that the employer believed that the applicant had not addressed the concerns raised by the employer and therefore, it felt warranted to deny the sick leave.

[32] The submissions made by the employer also raised concern about the alleged forced resignation of the applicant as indicated in a communication from her lawyers. Mr Murphy submitted that the applicant’s lawyers provided very combative responses and did not provide information to allay the employer’s concerns about the “false sick leave claim.” Mr Murphy submitted that the applicant could not make a claim to say that she had been forced to resign.

[33] The further submissions made by Mr Murphy raised the question of the operation of the Small Business Fair Dismissal Code and in this respect it was submitted that the applicant had been provided with a reason as to why she was at risk of being dismissed. Mr Murphy said that he sent the applicant an email telling her that if she didn’t sign the new employment contract he would need to find staff that would support the business as it grows and continually changes. Therefore, according to the submissions made by Mr Murphy, he did give the applicant fair warning that she was at risk before he sent her the email communication advising her that she was on notice.

[34] The submissions made by the employer also challenged that the applicant had been genuinely seeking alternative employment since the dismissal. It was submitted that it was inconceivable that the applicant was unable to find new employment shortly after the dismissal. Further, Mr Murphy noted that the applicant had taken a three-week holiday to the United States and that this, and the absence of other verified application for jobs, indicated that she had not been actively looking for work during the past four month period.

[35] In summary, the submissions made by the employer asserted that there was a valid reason to terminate the employment of the applicant. Mr Murphy said that it was fair and reasonable for the employer to revise the employment contracts and to standardise the business hours of operation between 9am and 5:30pm. The submissions made by the employer reiterated that it was not harsh, unjust or unreasonable for the employer to terminate the employment of the applicant who had refused to comply with the reasonable request of the employer.

Consideration

[36] The unfair dismissal provisions of the Act include section 385 which stipulates that the Commission must be satisfied that four cumulative elements are met in order to establish an unfair dismissal. These elements are:

(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.

[37] In this case, there was a question raised as to whether the applicant had been dismissed or, as was suggested in a communication from the applicant’s lawyer, forced to resign. However, the suggestion of the applicant providing a forced resignation was raised as a proposition that was contingent upon there being validity to the employer’s purported withdrawal of the termination of employment as had been advised on the evening of 6 November 2017. In an email dated 17 November 2017, Mr Murphy indicated that “no termination of employment has taken place.”

[38] However, the employer’s attempted retraction of the dismissal was made in response to the applicant’s lawyers directing attention to defects that existed in the notice of the dismissal made in the email communication of 6 November from Mr Murphy. The evidence clearly established that the applicant was advised of her dismissal at 8:53pm in the email of 6 November 2017. Although that advice contained defects such as the absence of any specified period of notice that the applicant was required to work out, that communication clearly operated to dismiss the applicant. The applicant was entitled to act upon that advice and seek to clarify and rectify the attendant deficiencies. There was simply no capacity for the employer to unilaterally withdraw the dismissal. In any event, the evidence undeniably established that the applicant’s employment was terminated on the initiative of the employer.

[39] The question of the potential operation of the Small Business Fair Dismissal Code (the Code) was also raised by Mr Murphy during the Hearing. The employer’s response to the unfair dismissal application, Form F3, did not identify any reliance upon operation of the Code. Further, the Commission was not provided with any evidence of compliance with the Code as is required by the Code.

[40] There was no suggestion that the dismissal of the applicant involved a redundancy circumstance. As the applicant was dismissed, and the employer was unable to demonstrate compliance with the Code, further consideration of the matter has involved a determination of that element contained in subsection 385 (b) of the Act, specifically, whether the dismissal of the applicant was harsh, unjust or unreasonable. Section 387 of the Act contains criteria that the Commission must take into account in any determination of whether a dismissal is harsh, unjust or unreasonable. These criteria are:

(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.

S. 387 (a) - Valid Reason for the Dismissal Related to Capacity or Conduct

[41] The applicant was dismissed because she refused to sign a new employment contract which extended her daily hours of work finish time from 5 to 5:30pm. The applicant had explained to the employer the particular difficulties associated with a requirement for her to work until 5:30pm on Mondays and Wednesdays. The applicant had requested that her new employment contract contain terms which permitted her to leave 15 minutes earlier on Mondays and Wednesdays with a correspondingly shortened lunch break on those days. This request was refused by the employer who insisted upon standardising all employment contracts so as to provide for a finish time of 5:30pm.

[42] It was unfortunate that the applicant and her employer were unable to reach agreement on what might be seen to be something of an almost trivial matter. There appeared to be no preparedness to accommodate the applicant’s pre-paid commitment to her Pilates classes. The employer adopted an inflexible position regarding the 5:30pm finish time. The applicant was prepared to agree to the later finish time except for two days of the week, and she provided explanation for the arrangement that she sought. The employer’s requirement for the 5:30pm finish was said to involve improved customer service and a desire to standardise the terms of all employment contracts. Regrettably, there was no pursuit of further compromise such as an accommodation of the 5:15pm finish on Mondays and Wednesdays for some fixed period of time perhaps connected with the period that the applicant had pre-paid for the Pilates classes.

[43] The evidence has disclosed that the failure to reach agreement on any compromise arrangement concerning the 5:30pm finish time had become something of a token issue that reflected the employer’s underlying dissatisfaction arising from the applicant’s challenge to various terms that were proposed in the revised employment contract document. Essentially, the employer had expectations of more unquestioning compliance from the applicant, and her challenge to various terms in the revised employment contract was perceived to be something that displayed less than the desired level of commitment to the business of the employer.

[44] Consequently, the underlying reason for the applicant’s dismissal involved her actions in challenging various terms in the revised employment contract and which displayed, in the mind of the employer, some absence of commitment and dedication to her employer. Consequently, when faced with an employee who did not demonstrate the required level of commitment/dedication to the business of the employer, Mr Murphy was not prepared to compromise on the 15 minutes earlier finish for two days of the week. The difficulties that had accumulated during the negotiations surrounding the revised employment contract essentially boiled over when the applicant indicated that she was not prepared to sign the new contract document unless she could get the flexibility of a 15 minute earlier finish for two days of the week.

[45] Regrettably, the tensions that had been created by the negotiations surrounding the revised employment contract led to significant deterioration in the employment relationship, and culminated with Mr Murphy refusing to accept what was, on any objective and reasonable assessment, a minor alteration involving a request for flexible working hours. There was no defensible explanation for why the employer’s business could not accommodate the applicant leaving work 15 minutes earlier on two days of the week, particularly if such an arrangement might have some fixed period of operation.

[46] In summary, the evidence has established that the applicant was dismissed because she challenged the employer’s decision to issue revised employment contract documents which included an unnecessarily rigid requirement to extend the daily finish time to 5:30pm on all days. There was no evidence which provided satisfactory explanation of any particular business or commercial requirement for such a rigid approach to the later finish times on all days. Consequently, such reason for dismissal was not sound, defensible or well-founded. There was not a valid reason for the dismissal of the applicant.

S. 387 (b) - Notification of Reason for Dismissal

[47] The employer provided notification of dismissal by email communication sent at 8:53pm on 6 November 2017. Notification of dismissal should not be made by email communication. Unless there is some genuine apprehension of physical violence or geographical impediment, the message of dismissal should be conveyed face to face. To do otherwise is unnecessarily callous. Even in circumstances where email or electronic communications are ordinarily used, the advice of termination of employment is a matter of such significance that basic human dignity requires that dismissal be conveyed personally with arrangements for the presence of a support person and documentary confirmation.

S. 387 (c) - Opportunity to Respond to any Reason Related to Capacity or Conduct

[48] The employer had suggested to the applicant that any refusal to sign the revised employment contract jeopardised her continued employment. This suggestion arose in the email from Mr Murphy of 2 November.

[49] However, Mr Murphy responded to the applicant’s advice that she would not sign the new employment contract by moving immediately to dismissal. In the context of the negotiations that had been occurring regarding the terms of any new employment contract, Mr Murphy was obliged to provide the applicant with an opportunity to respond to what had developed to become the unambiguous outcome of dismissal in the event that the applicant maintained her position of refusing to sign the new employment contract. This important step, which should have been taken prior to any dismissal, was overlooked when Mr Murphy unfortunately and hastily return emailed the applicant with advice of her dismissal.

[50] Consequently the applicant was not provided with an opportunity to respond to the prospect that the continued refusal to sign the new employment contract would result in dismissal.

S. 387 (d) - Unreasonable Refusal to Allow a Support Person to Assist

[51] There was no opportunity for any participation of a support person because there was no discussion between the applicant and Mr Murphy prior to the decision to dismiss being taken and then communicated to the applicant by email. The absence of any procedure involving discussion with the applicant effectively amounted to an unreasonable refusal to allow the presence of a support person at any stage of the process involving contemplation and then determination of dismissal.

S. 387 (e) - Warning about Unsatisfactory Performance

[52] There was no aspect of unsatisfactory work performance associated with the dismissal of the applicant. Consequently, this factor has no relevance to the circumstances of this case.

S. 387 (f) - Size of Enterprise Likely to Impact on Procedures

[53] The employer is a small business, and accommodation has been made for a significant level of informality to be provided in respect to employment related matters. However, such accommodation could not extend to any condonation of the defective process that was adopted by the employer whereby the applicant was advised of her dismissal by way of email, and without prior discussion involving unambiguous advice to the applicant that her continued refusal to sign the new employment contract would result in dismissal.

S. 387 (g) - Absence of Management Specialists or Expertise Likely to Impact on Procedures

[54] As a small business the employer did not have any dedicated human resource management specialists or other expertise. Allowance for informality and a degree of flexibility with procedures regarding employment related matters has been provided. However, in circumstances where the employer acted with unnecessary haste and insensitivity, no mitigation or justification could arise from any absence of specialists or expertise in human resource management.

S. 387 (h) - Other Relevant Matters

[55] The employer was understandably taken by surprise when, on the morning following the email advice of her dismissal the applicant provided a Medical Certificate which covered days that she had already worked and extended to cover the notice period that the employer sought to have the applicant work out. The employer requested clarification of the circumstances surrounding the Medical Certificate. Subsequently, a clear explanation was provided by the Medical Practitioner that issued the Medical Certificate.

[56] Regrettably, Mr Murphy refused to accept the Medical Certificate despite the explanation that had been provided. Further, Mr Murphy denied payment of personal leave to the applicant for the days that the applicant was absent from work during the period covered by the Medical Certificate(s). The payment of personal leave was denied despite the applicant having accrued entitlement to personal leave to cover the days of absence during the period stipulated in the Medical Certificate.

[57] The refusal to pay the applicant personal leave despite her entitlement to that payment meant that the applicant was paid wages only up until that day of her dismissal, 6 November 2017. The refusal to pay the applicant personal leave during the period that Mr Murphy had (imprecisely) declared as a notice period created an outcome whereby the dismissal of the applicant was summary in nature. That is, although notice was putatively given, the applicant was entitled to be absent during that period in accordance with the Medical Certificate. The failure to pay the applicant her personal leave entitlement during the notice period has meant that she was summarily dismissed without notice on and from 6 November 2017.

[58] There was no serious misconduct on the part of the applicant which could have possibly justified what has become her summary dismissal.

Conclusion

[59] In this case, the applicant was dismissed because she had refused to sign a new employment contract. The applicant refused to sign the new employment contract because it would not permit her to leave work 15 minutes earlier on two days of the week. There was no justification for the inflexibility that the employer sought to impose upon the applicant’s daily finish times. The employer’s inflexibility reflected an underlying deterioration in the employment relationship that had been created by the applicant’s preparedness to challenge particular terms that were proposed in the revised employment contract documents.

[60] Any employee is entitled to contest changes that are sought to be introduced into the terms and conditions of the employment. Therefore, upon any reasonable and objective contemplation, the reason for the dismissal of the applicant was not sound, defensible or well-founded. There was not a valid reason for the dismissal of the applicant related to her capacity or conduct.

[61] The procedure that the employer adopted when it advised the applicant of her dismissal by way of email communication was unnecessarily callous and plainly harsh. Further, the failure to pay the applicant her personal leave entitlement during what would have otherwise been a notice period, meant that the applicant was dismissed without notice or payment for the notice period. Consequently, in the absence of any serious misconduct that could justify summary dismissal, the summary dismissal of the applicant was plainly unjust.

[62] In summary, the dismissal of the applicant was without valid reason involving established misconduct or capacity inadequacy. Further, the dismissal involved an unnecessarily harsh and unreasonable process including the very unfortunate means by which advice of the dismissal was communicated by email. Consequently, upon analysis of the various factors that are identified in s. 387 of the Act, an objective and balanced evaluation of all of the relevant circumstances has provided compelling basis to establish that the dismissal of the applicant was harsh, unjust and unreasonable. Therefore, the applicant’s claim for unfair dismissal remedy has been established.

Remedy

[63] The applicant did not seek reinstatement as a remedy for her unfair dismissal. In the circumstances reinstatement would not be an appropriate remedy.

[64] I have decided that compensation would be an appropriate remedy for the applicant’s unfair dismissal, and I turn to the factors which involve the quantification of any amount of compensation.

[65] Section 392 of the Act prescribes certain matters that deal with compensation as a remedy for unfair dismissal. I have approached the question of compensation having regard for the guidelines that have been established in the Full Bench Decisions of; Sprigg v Paul’s Licensed Festival Supermarket 2 and, Smith and Ors v Moore Paragon Australia Ltd 3 and, more recently, the case of McCulloch v Calvary Health Care Adelaide4.

[66] Firstly, I confirm that an Order for payment of compensation to the applicant will be made against the employer in lieu of reinstatement of the applicant.

[67] Secondly, in determining the amount of compensation that I Order, I have taken into account all of the circumstances of the matter including the factors set out in paragraphs (a) to (g) of subsection 392 (2) of the Act.

[68] There was no evidence provided which established that an Order of compensation would impact on the viability of the employer’s enterprise. However, I have recognised that the employer is a small business, although it may be inferred from some of the evidence that the business has been and is growing, and presumably financially sound.

[69] The applicant had been employed for approximately three years. The applicant would have been likely to have received remuneration of approximately $1,346.00 per week if she had not been dismissed.

[70] There was no evidence to suggest that the employment of the applicant would not have continued for a significant period of time. In particular, it should be noted that the applicant had received approval to take planned annual leave involving travel to the USA. Further, the applicant had recently received an increase in her remuneration.

[71] Following the dismissal, the applicant has sought alternative employment. The applicant secured alternative employment which commenced on 5 March 2018. The alternative employment provides a level of remuneration commensurate with that which she received when engaged with the employer.

[72] Thirdly, in this instance there was no established element of misconduct of the applicant which contributed to the employer's decision to dismiss.

[73] Fourthly, I confirm that any amount Ordered does not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt caused to the applicant by the manner of the dismissal.

[74] Fifthly, the amount Ordered does not exceed the compensation cap as prescribed by s. 392 (5) of the Act.

[75] The applicant was not paid any notice upon termination. The applicant’s dismissal was essentially summary in nature.

[76] Consequently, for the reasons outlined above I have decided that an amount approximating with 17 weeks remuneration should be provided as compensation to the applicant. That amount is $22,882.00. Accordingly, separate Orders [PR601919] providing for remedy in these terms will be issued.

COMMISSIONER

Appearances:

Ms N Knutson appeared unrepresented.

Mr S Murphy appeared for the employer.

Hearing details:

2018.

Sydney:

March, 22.

Printed by authority of the Commonwealth Government Printer

<PR601917>

 1   Exhibit 7.

 2   Sprigg v Paul’s Licensed Festival Supermarket, (Munro J, Duncan DP and Jones C), (1998) 88IR 21.

 3   Smith and Ors v Moore Paragon Australia Ltd, (Lawler VP, Kaufman SDP and Mansfield C), (2004) PR942856.

 4   John McCulloch v Calvary Health Care Adelaide, (Ross P, Hatcher VP and Gostencnik DP), [2015] FWCFB 873.