| [2020] FWC 2248 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Sally Reddon
v
Bogeye Pty Ltd T/A Bellevue Hotel
(U2019/14723)
DEPUTY PRESIDENT SAUNDERS |
NEWCASTLE, 30 APRIL 2020 |
Unfair dismissal – whether applicant was forced to resign because of conduct, or a course of conduct, engage in by her employer – applicant dismissed – whether dismissal harsh, unjust and/or unreasonable – compensation.
Introduction
[1] Ms Sally Reddon was employed as the Head Chef at the Bellevue Hotel, Tuncurry, on the mid north coast of New South Wales. On 6 December 2019, Ms Sally Reddon gave written notice of her resignation to her employer, Bogeye Pty Ltd (Bogeye) trading as the Bellevue Hotel. Ms Reddon contends that she was dismissed on the basis that she was forced to resign because of conduct, or a course of conduct, engaged in by Bogeye, and that her dismissal was unfair. Bogeye denies those allegations and contends that Ms Reddon chose to resign of her own free will.
[2] I decided that it was appropriate to hold a determinative conference rather than a hearing in this matter. In making that decision, I had regard to the views of the parties, together with the fact that a determinative conference would be the most effective and efficient way to resolve this matter. The determinative conference was conducted, by telephone, on 17 April 2020. Ms Reddon gave evidence in support of her case, as did Mr Rodney Taylor, Chef, former employee of the Bellevue Hotel, and Ms Sandra Bargh, former employee of the Bellevue Hotel. Mr Daniel Atkinson, Licensee of the Bellevue Hotel, gave evidence on behalf of Bogeye.
Dismissal
[3] The question of when a person has been dismissed is governed by s 386 of the Fair Work Act 2009 (Cth) (Act):
“(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.”
[4] There is no suggestion in this case that Ms Reddon was dismissed within the meaning of s 386(1)(a) of the Act. Ms Reddon accepts that she resigned from her employment with Bogeye, but says she was forced to do so because of conduct, or a course of conduct, engaged in by her employer.
[5] The test to be applied in a case concerning an alleged forced resignation under s 386(1)(b) of the Act is “whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probable result of the employer’s conduct such that the employee had no effective or real choice but to resign. Unlike the situation in [s 386(1)(a)], the requisite employer conduct is the essential element.” 1
[6] The line distinguishing conduct that leaves an employee no real choice but to resign, from an employee resigning at their own initiative is a narrow one. 2 The line, however, must be “closely drawn and rigorously observed”.3
Relevant facts
[7] Ms Bargh was employed at the Bellevue Hotel from 2014 until 2018. Ms Bargh gave evidence about her difficulties in working with Mr Atkinson at the Bellevue Hotel. Because Mr Bargh’s employment at the Bellevue Hotel came to an end well before the events on which Ms Reddon relies to contend that she was dismissed by Bogeye, I have not found Ms Bargh’s evidence in these proceedings to be of any probative value in determining the question of whether Ms Reddon was dismissed by Bogeye within the meaning of s 386 of the Act.
[8] Ms Reddon commenced casual employment with Bogeye as a Chef in July 2017. Ms Reddon was promoted to the permanent, full-time position of Head Chef on 18 February 2018. She remained in that position until her resignation in December 2019.
[9] Throughout Ms Reddon’s employment with Bogeye there was, at all times, one Head Chef working in the bistro at the Bellevue Hotel. In addition, there were usually one or more Chefs working in the bistro, together with kitchen hands and wait staff.
[10] I accept Mr Atkinson’s evidence, which is supported by his contemporaneous diary note, that he had a discussion with Ms Reddon on 3 September 2019 in relation to how high the wages and food costs were in the bistro and for Ms Reddon to cut costs wherever she could as the bistro was losing money.
[11] On 5 September 2019, a Duty Manager working at the Bellevue Hotel made a note in the managers’ diary concerning complaints received from patrons about the quality of food and long wait times for food in the bistro.
[12] In the beginning of October 2019, Mr Taylor was employed to work as a casual Chef in the bistro. At that time, Ms Reddon was the Head Chef in the bistro and there were no other Chefs employed in the bistro.
[13] On Sunday, 6 October 2019, the bistro was very busy on account of the rugby league grand final being shown at the Bellevue Hotel. Ms Reddon was not rostered to work on that evening, however, she received a call at home asking her to attend work to help out. Ms Reddon had consumed some alcoholic beverages, so could not drive to work. A Duty Manager arranged for the courtesy bus to collect Ms Reddon from home and drive her to the Bellevue Hotel. Ms Reddon did not cook food or assist in the kitchen when she arrived at work. Instead she assisted another employee working at the cash register to process refunds for patrons in the bistro.
[14] I accept Ms Reddon’s evidence that she was not drunk when she attended work on the evening of Sunday, 6 October 2019 to help out, albeit she readily conceded that she had consumed some alcoholic beverages at home before being asked to attend work on short notice. On Wednesday, 9 October 2019, Mr Atkinson spoke to Ms Reddon about what took place on the evening of Sunday, 6 October 2019. Mr Atkinson told Ms Reddon that she would face disciplinary action if she repeated her conduct on Sunday, 6 October 2019.
[15] In late October 2019, Mr Atkinson had a discussion with Ms Reddon about the need to employ additional staff to assist her in the kitchen of the bistro over the summer period. There is a dispute as to whether Mr Atkinson and Ms Reddon discussed hiring a Head Chef, as contended by Mr Atkinson, or a Chef, as contended by Ms Reddon. Although Mr Atkinson’s account of this conversation is supported by a contemporaneous diary note dated 23 October 2019, I prefer Ms Reddon’s evidence on this point and find that she and Mr Atkinson discussed hiring a Chef to work in the bistro over the coming months. It was apparent from Ms Reddon’s evidence that she was sensitive in relation to her role as the most senior chef in the kitchen at the bistro of the Bellevue Hotel. I am confident that Ms Reddon would have spoken up if Mr Atkinson had discussed the idea of employing another Head Chef in the bistro. Further, Ms Reddon’s evidence concerning this discussion is supported by what I consider to be her genuine surprise when she became aware of the advertisement for a Head Chef and the fact that she raised the issue with Mr Atkinson when she became aware of the advertisement.
[16] In early November 2019, Mr Atkinson advertised on the internet for a full-time Head Chef to work in the bistro of the Bellevue Hotel. The advertisement was in the following terms:
“Head Chef
Tuncurry NSW
Full time
Job description
Looking for a Sea Change?
Full time head chef required for a busy bistro located in Tuncurry.
Experience essential, wages negotiable for right candidate.
Contact Dan 02 6554 6**”
[17] On 5 November 2019, Ms Reddon became aware of the advertisement for the position of Head Chef in the bistro. Ms Reddon’s friends in the industry had seen the advertisement and contacted her about it. In addition, Ms Reddon saw a phone message behind the bar concerning the Head Chef position with a name (Carlos) and phone number on it. I accept Ms Reddon’s unchallenged evidence that one of her concerned family members called Mr Atkinson on the telephone number provided in the advertisement and was told by Mr Atkinson that it was definitely the Head Chef position, on a full time basis and accommodation could be provided.
[18] I also accept Ms Reddon’s unchallenged evidence that she sent a text message to Mr Atkinson, asking if he was looking to replace her, to which Ms Reddon did not receive a reply.
[19] Mr Atkinson gave oral evidence that the advertisement he placed in early November 2019 for a Head Chef was not for a Head Chef to replace Ms Reddon. Mr Atkinson gave oral evidence that he was attempting to employ another chef in the bistro to work with Ms Reddon as second in charge to her. Mr Atkinson says that he wanted a person with experience to assist Ms Reddon to make the bistro profitable. Mr Atkinson contends that he does not understand the hierarchy and titles of chefs who may work together in a kitchen, with the result that he mistakenly used the title Head Chef in the advertisement in circumstances where he wanted to employ an experienced Chef to work as second in charge in the bistro.
[20] Mr Atkinson’s contemporaneous diary note for 23 October 2019 states: 4
“I asked Sal this morning how she was going in the bistro & asked if she needed any help in there as we continue to lose money & that I had had a lot of complaints regarding her attitude & poor behaviour to both staff & customers especially when people return meals that were either under-cooked or over-cooked or the wrong orders all together. She agreed with me that she does need help, other than the help that I was offering her so I told her that I would advertise another Head Chef position in the papers & online but this was by no means taking away her role in any way. She accepted my offer.”
[21] I do not accept Mr Atkinson’s evidence that he placed an advertisement for a Head Chef but in truth wanted an experience chef to work as second in charge to Ms Reddon in her role as Head Chef. I find that Mr Atkinson advertised the position of Head Chef because he wanted a new Head Chef to replace Ms Reddon in that position. My reasons for making these findings are as follows:
(a) The oral evidence given by Mr Atkinson to explain why he advertised for a Head Chef, as summarised in paragraph [19] above, is quite different to both his diary note 5 and his written statement dated 26 March 2020,6 where he stated:
“I did advertise a Head Chefs position in the paper and online with Sally’s agreement. I told her that on 23 October so it should not have been a surprise to her.”
(b) The advertisement for a Head Chef does not say anything about working with another Head Chef or being second in charge to a Head Chef.
(c) Mr Atkinson’s explanation that he mistakenly used the expression Head Chef in the advertisement does not ring true. Even accepting Mr Atkinson’s evidence that he had no understanding of the correct titles of various levels of chef who may work in a kitchen, he could have used a non-technical title in the advertisement such as “Experienced Chef” or “Chef – Second in Charge” had he truly intended to employ such a person. That is particularly so in circumstances where, during at least the term of Ms Reddon’s employment at the Bellevue Hotel, there has only ever been one Head Chef employed at any particular point in time to work in the bistro.
(d) It is apparent from the evidence set out above that, at the time Mr Atkinson placed the advertisement, he was of the view that the bistro was not performing well and he had raised his concerns about that issue and Ms Reddon’s own performance with her on a number of occasions.
[22] On 5 November 2019, Ms Reddon asked Mr Taylor whether he knew anything about the employment of a new Head Chef in the bistro. Mr Taylor informed Ms Reddon that he did not.
[23] Ms Reddon gave evidence that she had a discussion with Mr Atkinson on 6 November 2019 in which:
• Mr Atkinson demanded to know if Ms Reddon had the “shits” about the job advertisement;
• Ms Reddon replied that she did not have the “shits” but was concerned because it was her position that had been advertised;
• Mr Atkinson assured Ms Reddon that it was not her position that he advertised and he could not see how the word “Head” in front of “Chef” on the advertisement meant anything to Ms Reddon;
• Mr Atkinson told Ms Reddon that he needed chefs in the kitchen so he could replace Mr Taylor, because he was “not up to it”;
• Mr Atkinson told Ms Reddon that directives were coming from above and he offered her the phone number of one of the owners if Ms Reddon wanted to call him;
• Ms Reddon informed Mr Atkinson that she would call one of the owners; and
• Mr Atkinson then got extremely nasty and told Ms Reddon that she was going over his head if she called one of the owners. Mr Atkinson then stormed off, saying he was going to call one of the owners to give him the “heads up”. Ms Reddon then felt it was of no used to contact one of the owners, so she did not do so.
[24] On 7 November 2019, Ms Reddon informed Mr Taylor that Mr Atkinson had advertised the position of Head Chef so he could get rid of Mr Taylor.
[25] Mr Atkinson denies he told Ms Reddon that he needed chefs in the kitchen so he could replace Mr Taylor, because he was “not up to it”. Mr Atkinson says that he would not have appointed Mr Taylor to the position of Head Chef when Ms Reddon resigned if he did not think Mr Taylor was up to the position.
[26] I prefer Ms Reddon’s evidence to Mr Atkinson’s evidence in relation to whether Mr Atkinson told Ms Reddon that he needed chefs in the kitchen so he could replace Mr Taylor, because he was “not up to it”. There are two reasons for my finding in this regard: first, Mr Taylor’s evidence that he was told by Ms Reddon on 7 November 2019 about the statement Ms Reddon claims was made to her by Mr Atkinson on the previous day supports Ms Reddon’s evidence about this issue; and secondly, having regard to my earlier finding that Mr Atkinson wished to employ a new Head Chef to replace Ms Reddon, Mr Atkinson needed to provide her with an explanation for the advertisement when she confronted him about it.
[27] On 12 November 2019, Mr Taylor sent a text message to Ms Reddon to inform her that Carlos, who had left the telephone message on 5 November 2019, was shown through the kitchen at the Bellevue Hotel. Mr Atkinson introduced Carlos to Mr Taylor as a chef. Mr Atkinson gave evidence that a consultant who also happens to be a chef came to see him regarding how they could improve things in the bistro; he gave Mr Atkinson a few ideas, but did not apply for the job as he had one. 7
[28] In the following week, Ms Reddon approached Mr Atkinson and asked him about Carlos. Mr Atkinson told Ms Reddon that he was a consultant. Mr Atkinson also told Mr Taylor that Carlos was a consultant. This made Mr Taylor suspicious as to what was really going on.
[29] I do not accept Mr Atkinson’s evidence that Carlos was a consultant who was shown through the kitchen at the bistro to provide advice to Mr Atkinson. Apart from Mr Atkinson’s evidence to that effect, no other evidence was adduced to support the idea that a consultant had been engaged, or might be engaged, to provide such advice. There is no evidence to suggest that Carlos, or any other consultant, communicated with Mr Atkinson, save for when Carlos attended the workplace on 12 November 2019. This finding concerning Carlos is also supported by Ms Reddon’s unchallenged evidence that on 5 November 2019 she saw a phone message behind the bar concerning the Head Chef position with a name (Carlos) and phone number on it. Further, the timing of Carlos leaving a phone message (5 November 2019) and being shown through the premises (12 November 2019) was in close proximity to the placement of the advertisement of the Head Chef position (4 November 2019).
[30] It is apparent from what transpired after Carlos’s visit to the bistro on 12 November 2019 that he was not offered, or did not accept, the position of Head Chef.
[31] In mid November 2019, Mr Atkinson gave evidence that he was informed by the owner of Hamilton’s restaurant that Ms Reddon “had applied for a job there and … got accepted for … a chef’s role”. 8 Ms Reddon gave evidence that a friend of hers who works as the Head Chef at Hamilton’s asked her in about September 2019 whether she was interested in work at Hamilton’s, to which she replied that she was happy with her role as Head Chef at the Bellevue Hotel. I find that Ms Reddon did not accept any offer of employment at Hamilton’s in November 2019. The contract of employment which Ms Reddon signed on 23 December 2019 in relation to her employment at Hamilton’s supports this finding. I address those matters further below.
[32] In about early to mid November 2019, Ms Reddon applied for a job at the Pacific Palms Recreation Club. Ms Reddon did not hear back from her application for that job.
[33] Ms Reddon told Mr Atkinson that she had put her “feelers out” and applied for a job at the Pacific Palms Recreation Club.
[34] In the period from 19 November 2019 until 30 November 2019, Ms Reddon was on annual leave. While Ms Reddon was on annual leave, she sent a text message to Mr Taylor to ask him whether she was coming back to a job. Mr Taylor responded with a message to the effect that all was good as far as he knew.
[35] While Ms Reddon was absent on annual leave, Mr Atkinson asked Mr Taylor if he would step up to the position of Head Chef if Ms Reddon did not return from leave. Mr Taylor agreed. Mr Atkinson made this inquiry of Mr Taylor because he was preparing for a busy Christmas period and did not want to be left in a lurch. Mr Atkinson believed that Ms Reddon “was just going to drop us cold just before the busy Christmas break. So I put a few tentative plans into place.” 9
[36] On 1 December 2019, Ms Reddon returned to work and worked for three days. During this period of time, Ms Reddon believed that “things were not as they seemed” because patrons and staff were looking at Ms Reddon as an “alien”. Ms Reddon gave evidence that “upon asking questions I found out that while I was on leave Danny had told staff and patrons I had left employment”. No evidence was adduced as to who told Ms Reddon those things or what in particular was said to her. Ms Reddon gave evidence that Mr Atkinson did not come near her during these three days. Ms Reddon also gave evidence that Mr Taylor informed her that Mr Atkinson had told him that he was avoiding Ms Reddon.
[37] I accept that there was very little communication between Mr Atkinson and Ms Reddon in the period from 1 to 3 December 2019. Mr Atkinson did not challenge this. Further, given the difficult conversation which took place between Mr Atkinson and Ms Reddon on 4 December 2019, to which I will shortly turn, it is understandable that Ms Reddon could sense that something was not quite right when she was at work from 1 to 3 December 2019.
[38] The managers’ diary contains the following entry pertaining to Ms Reddon for 4 December 2019:
“Sally said there are small cockroaches starting to appear in the kitchen. She said the health inspector is due shortly too. Could you please see when the pest control guys are coming.”
[39] On 4 December 2019, Mr Atkinson called Ms Reddon and asked her to come in to work for a “chat”. On her arrival at work, Mr Atkinson took Ms Reddon into the staff room and had the door closed behind them. Ms Reddon contends that during her discussion with Mr Atkinson:
• Mr Atkinson told Ms Reddon that their business relationship was over and Mr Taylor had been given Ms Reddon’s position;
• Mr Atkinson then told Ms Reddon that he would not sack her;
• Ms Reddon asked where that left her. Mr Atkinson replied that it was up to Ms Reddon whether she stayed or went, but if she stayed it would be under his terms and conditions. When Ms Reddon asked what those terms and conditions would be, Mr Atkinson was unable to give her an answer;
• Mr Atkinson told Ms Reddon that the bistro had been losing money hand over fist for months. Ms Reddon asked at what point during those months did he not think to have a discussion with Ms Reddon and let her know what was going on. Mr Atkinson told Ms Reddon she was an idiot and she should have known; and
• Ms Reddon thought that the “chat” was going nowhere, so she stood up and told Mr Atkinson that she would let him know of her decision. Ms Reddon then opened the door and left.
[40] On 4 December 2019, Ms Reddon sent the following text messages in relation to her discussion with Mr Atkinson:
(a) Ms Reddon to her partner, Ian:
“He doesn’t want me there but he won’t sack me
He’s giving my job to Rodney”
(b) Ms Reddon to her daughter, Hannah:
Ms Reddon:
“He doesn’t want me there but I can stay if I want
He’s giving my job to Rodney”
Hannah:
“Your kidding!!!
That’s why he was avoiding you!!!
What did you say?
What are you doing [sic] to do?”
Ms Reddon:
“I told him I’d let him know and walked out of the room”
[41] Mr Atkinson denies Ms Reddon’s account of their conversation on 4 December 2019, and relies on his diary entry for 3 December 2019, which he says he made on 4 December 2019, in the following terms: 10
“I called Sal to see if she could come in & see me. I asked her if she was leaving as I knew that she had applied for 2 x other jobs (Hamiltons & Pacific Palms Rec Club). She said she wasn’t but I was told by the licensee of Hamiltons that she 100% had a start there on Boxing Day & a lot of my patrons were telling me also. I told her that I thought her position was untenable & I would like the truth. She told me to ‘get fucked’ & walked out of the meeting.”
[42] I prefer Ms Reddon’s evidence over Mr Atkinson’s evidence in relation to their discussion on 4 December 2019, for the following reasons:
(a) Ms Reddon’s account of important parts of the conversation is supported by her text messages to her partner and daughter on the same day. In particular, Ms Reddon says in those text messages that Mr Atkinson “doesn’t want me there but I can stay if I want. He’s giving my job to Rodney [Taylor]”.
(b) Ms Reddon’s evidence that she was told by Mr Atkinson that Mr Taylor had been given her position is supported by the undisputed evidence that Mr Atkinson told Ms Reddon he thought her position was “untenable”. Given that Mr Atkinson held this belief, it is likely that he would take steps quickly to find a replacement for Ms Reddon as Head Chef, particularly with the busy Christmas period fast approaching. No suitable candidates for the position of Head Chef had been found in response to the advertisement placed in November 2019. Mr Taylor was logically the best option available.
(c) Ms Reddon’s evidence that she was told by Mr Atkinson that Mr Taylor had been given her position is consistent with Mr Taylor’s evidence about his conversation with Mr Atkinson on the evening of 4 December 2019. I address the evidence in relation to that conversation below.
[43] At about 7:30pm on 4 December 2019, Mr Taylor says that Mr Atkinson appeared at work on his night off and told him that Mr Taylor had Ms Reddon’s job. Mr Taylor says he responded by telling Mr Atkinson that this was not what they had discussed and Mr Atkinson cannot do this to people. Mr Atkinson denies that he had such a discussion with Mr Taylor on the evening of 4 December 2019. Mr Atkinson says that 4 December 2019 was a Wednesday and on Wednesday evenings his wife works and he stays at home to look after their three young children. Mr Atkinson also contends that Mr Taylor is a disgruntled former employee of Bogeye because he was not kept on after the conclusion of his trial period. As soon as Mr Taylor’s trial was concluded, he became a witness for Ms Reddon. Mr Atkinson also points to the fact that, during his oral evidence, Mr Taylor corrected incorrect dates in his witness statement, and Mr Taylor did not sign his witness statement. Finally, Mr Atkinson refers to his earlier discussion with Mr Taylor in November 2019 to the effect that he wanted Mr Taylor to step up to the position of Head Chef if Ms Reddon did not return from annual leave.
[44] I prefer Mr Taylor’s evidence over Mr Atkinson’s evidence in relation to the disputed conversation where Mr Atkinson is alleged to have told Mr Taylor that he had Ms Reddon’s job, for the following reasons:
(a) Although Mr Taylor accepts that he was a bit upset that his employment at the Bellevue Hotel came to an end at the conclusion of his trial period in March 2020, he came across as a reliable and credible witness. He answered questions put to him in a direct manner and was prepared to make concessions when he was not certain about a particular matter, such as the time of the day when he spoke to Mr Atkinson on 6 December 2019. I deal with this issue further in paragraph [46] below. During his oral evidence, Mr Taylor did correct dates in his unsigned written statement, but I accept that he simply had the month incorrect in paragraphs 11, 12 and 13 of his written statement. There is no doubt from other evidence given in the proceedings that the events about which Mr Taylor made statements in paragraphs 11, 12 and 13 of his written statement took place in December 2019, not November 2019.
(b) Mr Taylor’s evidence is consistent with Ms Reddon’s evidence that she was told by Mr Atkinson earlier on 4 December 2020 that Mr Taylor had been given her job. It is also consistent with Ms Reddon’s text messages to her partner and daughter earlier on 4 December 2019.
(c) Mr Taylor’s evidence is supported by the fact that he attended Ms Reddon’s house on the next morning, 5 December 2019, to “discuss the situation at length”. 11
(d) Mr Taylor’s evidence is supported by the fact that Mr Atkinson told Ms Reddon earlier on 4 December 2019 that her position was “untenable”. 12 The fact that Mr Atkinson believed Ms Reddon’s position was “untenable” suggests that Mr Atkinson needed to put plans into place to secure a replacement for the position of Head Chef, particularly leading into the busy Christmas period. The advertisement Mr Atkinson placed for that position in November 2019 had not borne any fruit. Logically, Mr Taylor was the best option available to Mr Atkinson and Mr Atkinson had already sounded out Mr Taylor in November 2019 about the idea of taking over from Ms Reddon if she did not return from leave.
(e) While I accept that Mr Atkinson ordinarily looks after his children on a Wednesday night, it would have only taken a very short period of time for Mr Atkinson to “appear in the kitchen” as Mr Taylor contends and tell him that he had Ms Reddon’s job. Further, Mr Taylor’s statement provides that Mr Atkinson appeared in the kitchen on “his night off” which accords with Mr Atkinson’s evidence that he looks after his children on Wednesday evenings. Having regard to all the circumstances, the likelihood is that Mr Atkinson appeared in the kitchen and had a discussion with Mr Taylor on the evening of 4 December 2019.
[45] On 5 December 2019, Ms Reddon had a discussion with Mr Taylor at her house. Ms Reddon gave evidence, which I accept, that Mr Taylor told her that he knew nothing of being appointed to her position until about 7pm on 4 December 2019 and Mr Taylor told Mr Atkinson that it was not right.
[46] On 6 December 2019, Mr Taylor contends that Mr Atkinson told him that he had instructions from the owners of the Bellevue Hotel to terminate Ms Reddon’s employment. Mr Taylor is not sure of the exact time of this conversation. He said in his witness statement that the discussion took place when Mr Taylor first arrived at 10am. 13 In his oral evidence, Mr Taylor initially said he could not recall whether the conversation took place in the morning or afternoon, but later said he was pretty sure it took place in the morning but definitely took place before he received the message from Ms Reddon informing him that she had resigned. Mr Taylor says that he received the text message from Ms Reddon at about 4:15pm, but he did not read it until about 7:30pm.
[47] Mr Atkinson denies that he told Mr Taylor that he had instructions from the owners of the Bellevue Hotel to terminate Ms Reddon’s employment. Mr Atkinson also says that if he wanted to terminate Ms Reddon’s employment, he would have given her warnings. Mr Atkinson says that he wanted Ms Reddon to continue working in the bistro at the Bellevue Hotel until a new operator of the bistro commenced in early March 2020.
[48] Ms Reddon says that after much deliberation and angst she reluctantly resigned from her employment with Bogeye. Ms Reddon sent an email to Bogeye in the following terms at 3:57pm on 6 December 2019:
“This is a letter of resignation as of today Friday 6th December I give 2 weeks notice.
Thankyou
Sally”
[49] Ms Reddon provided Bogeye with a medical certificate dated 5 December 2019, stating that she would be unfit for work in the period from 5 to 19 December 2019. Ms Reddon was absent on personal leave for the duration of her two week notice period.
[50] At the time she gave notice of her resignation to Bogeye, Ms Reddon was not aware of Mr Taylor’s contention that Mr Atkinson had told him on 6 December 2019 that he had instructions from the owners of the Bellevue Hotel to terminate Ms Reddon’s employment. Because Ms Reddon was not aware of that alleged discussion at the time she gave notice of her resignation, that discussion cannot have been part of any conduct which forced Ms Reddon to resign. It follows that I do not need to resolve the dispute about whether Mr Atkinson told Mr Taylor on 6 December 2019 that he had instructions from the owners of the Bellevue Hotel to terminate Ms Reddon’s employment.
[51] Mr Taylor took over the role of Head Chef in the bistro at the Bellevue Hotel after Ms Reddon gave notice of her resignation. He was supported by about three Chefs over the busy Christmas period.
[52] Ms Reddon gave evidence, which I accept, that about three days after she gave notice of her resignation to Bogeye, she spoke to her friend who is the Head Chef at Hamilton’s restaurant about working there. I also accept Ms Reddon’s evidence that she did not line up her employment at Hamilton’s until after she gave notice of her resignation to Bogeye.
[53] On 16 December 2019, there was a change of ownership of the Bellevue Hotel. Bogeye ceased to be the owner and Bellevue Pty Ltd became the new owner. Both parties to these proceedings accept that Bogeye was Ms Reddon’s employer at the time her employment at the Bellevue Hotel came to an end.
[54] I accept Ms Reddon’s evidence that on 23 December 2019 she received and signed her contract of employment with Hamilton’s dated 19 December 2019. 14 Ms Reddon also commenced work as a casual Chef with Hamilton’s restaurant on 23 December 2019.
[55] On 6 March 2020, the operation of the bistro at the Bellevue Hotel was outsourced to a new operator. The new operator is the Head Chef in the bistro. He employs all the staff who work in the bistro, including two casual Chefs.
[56] I accept Mr Atkinson’s oral evidence that if Ms Reddon had not resigned in December 2019, it is likely that she would have remained working in the Bellevue Hotel, with the new owner, Bellevue Pty Ltd, until the operation of the bistro at the Bellevue Hotel was outsourced to a new operator on 6 March 2020.
Was Ms Reddon dismissed?
[57] Having regard to the findings I have made concerning the relevant events in the months leading up to December 2019, it is apparent that Mr Atkinson did not believe that Ms Reddon was performing well in the position of Head Chef. However, Mr Atkinson had not given Ms Reddon any written or formal warnings about her performance or conduct. Further, Mr Atkinson had not been able to find an external candidate for the position of Head Chef and he needed experienced chefs to work in the bistro over the busy Christmas period. At the same time, Mr Atkinson was concerned that he would be left in the lurch if Ms Reddon resigned in the period leading up to Christmas. In my view, that led Mr Atkinson to conclude that he would be better off with Mr Taylor in the position of Head Chef and Ms Reddon in the position of Chef in the busy period leading up to Christmas. On 4 December 2019, Mr Atkinson told Ms Reddon that he thought her position was untenable but he would not dismiss her. In all the circumstances, I am satisfied that Mr Atkinson, on behalf of Bogeye, did not engage in any conduct with the intention of bringing Ms Reddon’s employment to an end.
[58] However, I am satisfied that the probable result of Bogeye’s conduct was such that Ms Reddon had no effective or real choice but to resign. The conduct on the part of Bogeye which led to this result was as follows:
• In November 2019, Bogeye advertised for a Head Chef to replace Ms Reddon in that position. No suitable external candidate was found.
• On 4 December 2019, Mr Atkinson, on behalf of Bogeye, told Ms Reddon that he thought her position was untenable, Mr Taylor had been given the position of Head Chef, but Ms Reddon would not be dismissed. Mr Atkinson would not tell Ms Reddon what her terms and conditions would be if she stayed on.
• On the evening of 4 December 2019, Mr Atkinson, on behalf of Bogeye, told Mr Taylor that he had Ms Reddon’s job. Mr Taylor told Ms Reddon about that conversation on 5 December 2019.
[59] In my view, this conduct left Ms Reddon with no effective or real choice but to resign. Ms Reddon had been removed from her position of Head Chef without her consent, told she would not be dismissed, but not informed of the terms and conditions that would apply to her if she chose to remain in employment with Bogeye. Having made the decision to resign, Ms Reddon had to find alternative employment and did so, with effect from 23 December 2019, at Hamilton’s restaurant, albeit as a casual employee.
[60] For the reasons given, Ms Reddon was dismissed by Bogeye within the meaning of s 386(1)(b) of the Act.
Other preliminary matters
[61] Section 396 of the Act sets out four matters which I am required to decide before I consider the merits of Ms Rodden’s unfair dismissal application.
[62] Having made a finding that Ms Reddon was dismissed, there is no dispute between the parties and I am satisfied on the evidence that:
(a) Ms Rodden’s unfair dismissal application was made within the period required in s 394(2) of the Act;
(b) Ms Reddon was a person protected from unfair dismissal;
(c) the Small Business Fair Dismissal Code did not apply to Ms Reddon’s dismissal; and
(d) Ms Reddon’s dismissal was not a genuine redundancy.
Was the dismissal harsh, unjust or unreasonable?
[63] Section 387 of the Act requires that I take into account the matters specified in paragraphs (a) to (h) of the section in considering whether Ms Reddon’s dismissal was harsh, unjust and/or unreasonable. I will address each of these matters in turn below.
Valid reason (s 387(a))
[64] It is necessary to consider whether the employer had a valid reason for the dismissal of the employee, although it need not be the reason given to the employee at the time of the dismissal. 15 In order to be “valid”, the reason for the dismissal should be “sound, defensible and well founded”16 and should not be “capricious, fanciful, spiteful or prejudiced.”17
[65] The Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer. 18 The question the Commission must address is whether there was a valid reason for the dismissal related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees).19 Capacity is the employee’s ability to do the job as required by the employer.20 Capacity also includes the employee’s ability to do the work they were employed to do.21
[66] The appropriate test for capacity is not whether the employee was working to their personal best, but whether the work was performed satisfactorily when looked at objectively. 22
[67] It is not enough for an employer to establish that it had a reasonable belief that the termination was for a valid reason. 23 The Commission must make a finding, on the evidence provided, whether, on the balance of probabilities, the conduct occurred or the performance was satisfactory.24
[68] Bogeye’s case was conducted on the footing that Ms Reddon chose of her own free will to resign. No alternative case was run seeking to justify Ms Reddon’s dismissal on the basis of her performance or conduct.
[69] Mr Atkinson did adduce evidence of discussions he had with Ms Reddon concerning her performance or conduct. Mr Atkinson also contended as follows in his statement dated 26 March 2020: 25
“During Sallys time here with us I have had a very large number of staff turnover in the Bistro (at least 8 people) due to them all having issues with her erratic behaviour and mood swings also with turning up to work inebriated, the safety of all my staff is paramount.”
[70] However, Mr Atkinson also gave evidence, which I have accepted, that if Ms Reddon had not resigned it is likely that she would have remained working in the Bellevue Hotel, with the new owner until the operation of the bistro at the Bellevue Hotel was outsourced to a new operator on 6 March 2020.
[71] In all the circumstances, I find on the evidence adduced in these proceedings that there was not a valid reason for Ms Reddon’s dismissal related to her capacity or conduct.
[72] Because I am not satisfied that there was a valid reason related to dismissal, these factors are not relevant to the present circumstances. 26
[73] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, it is relevant to consider and take into account whether the employer unreasonably refused the support person being present.
[74] There is no positive obligation on an employer to offer an employee the opportunity to have a support person:
“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.”27
[75] Ms Reddon did not request that a support person be present during any discussion relating to her dismissal. In those circumstances, I find there was no unreasonable refusal by Bogeye to allow Ms Reddon to have a support person present to assist at any discussions relating to her dismissal.
[76] Where an employee protected from unfair dismissal is dismissed for the reason of unsatisfactory performance, it is relevant to consider whether the employer warned the employee about the unsatisfactory performance before the dismissal.
[77] Ms Reddon was not dismissed for unsatisfactory performance, so this criterion is not relevant.
[78] Although it is not a small business within the meaning of s 23 of the Act, Bogeye is relatively small in size. Bogeye stated in its Form F3 – Employer Response that it had 30 employees at the time Ms Reddon’s employment with Bogeye came to an end.
[79] Neither party submitted that the size of Bogeye’s enterprise was likely to impact on the procedures followed in effecting the dismissal and I find that the size of Bogeye’s enterprise had no such impact.
[80] There is no evidence to suggest that Bogeye had, at the time of Ms Reddon’s dismissal, any dedicated human resource management specialists or expertise.
[81] In all the circumstances, I find that the absence of dedicated human resource management specialists in Bogeye’s enterprise had an impact on the procedures followed in effecting the dismissal because such specialists or experienced employees would have been likely to ensure that Ms Reddon was afforded a fair process before any decision was made to remove her from her position of Head Chef, together with the explanation of clear options for her to consider in such circumstances.
[82] Section 387(h) of the Act provides the Commission with a broad scope to consider any other matters it considers relevant.
[83] I do not consider there to be any other relevant matters, apart from those set out in paragraphs [8] to [59] above.
[84] After considering and taking into account each of the matters specified in s 387 of the Act, my value judgment is that Bogeye’s dismissal of Ms Reddon was harsh, unjust and unreasonable. Bogeye did not have a valid reason for Ms Reddon’s dismissal, and it put her in a position where she had no effective or real choice but to resign.
Compensation
[85] Having found that Ms Reddon was protected from unfair dismissal, and that her dismissal was harsh, unjust and unreasonable, it is necessary to consider what, if any, remedy should be granted to her. Ms Reddon did not seek the remedy of reinstatement and I accept that it would be inappropriate to reinstate Ms Reddon in all the circumstances. Instead Ms Reddon seeks the remedy of compensation. As a result, I need to consider whether compensation is appropriate.
[86] Section 390(3)(b) of the Act provides the Commission may only issue an order for compensation if it is appropriate in all the circumstances. A compensation remedy is designed to compensate an unfairly dismissed employee in lieu of reinstatement for losses reasonably attributable to the unfair dismissal within the bounds of the statutory cap on compensation that is to be applied. 28
[87] Having regard to all the circumstances of the case, including the fact that Ms Reddon has suffered financial loss as a result of her unfair dismissal, I consider that an order for payment of compensation to her is appropriate.
[88] It is necessary therefore for me to assess the amount of compensation that should be ordered to be paid to Ms Reddon. In assessing compensation, I am required by s 392(2) of the Act to take into account all the circumstances of the case including the specific matters identified in paragraphs (a) to (g) of this subsection.
[89] Because both parties are unrepresented, I intend to explain below how compensation must be assessed under the Act and set out my preliminary views in relation to the calculation of compensation to be awarded to Ms Reddon. However, those preliminary views are subject to any submissions which either party may file within 7 days of receiving a copy of this decision. Those submissions may address the quantum of compensation to be awarded to Ms Reddon, the method for assessing such compensation, the time for payment of such compensation, and any request to pay compensation by instalments.
[90] I will use the established methodology for assessing compensation in unfair dismissal cases which was set out in Sprigg v Paul Licensed Festival Supermarket 29 and applied and elaborated upon in the context of the current Act by Full Benches of the Commission in a number of cases.30 The approach to calculating compensation in accordance with these authorities is as follows:
Step 1: Estimate the remuneration the employee would have received, or have been likely to have received, if the employer had not terminated the employment (remuneration lost).
Step 2: Deduct monies earned since termination.
Step 3: Discount the remaining amount for contingencies.
Step 4: Calculate the impact of taxation to ensure that the employee receives the actual amount he or she would have received if they had continued in their employment.
Step 5: Apply the legislative cap on compensation.
Remuneration Ms Reddon would have received, or would have been likely to receive, if she had not been dismissed (s 392(2)(c))
[91] Like all calculations of damages or compensation, there is an element of speculation in determining an employee’s anticipated period of employment because the task involves an assessment of what would have been likely to happen in the future had the employee not been dismissed. 31
[92] As I have stated above, I accept Mr Atkinson’s evidence evidence that if Ms Reddon had not resigned in December 2019, it is likely that she would have remained working in the Bellevue Hotel, with the new owner, Bellevue Pty Ltd, until the operation of the bistro at the Bellevue Hotel was outsourced to a new operator on 6 March 2020. It is possible that Ms Reddon may have resigned from her employment at the Bellevue Hotel prior to 5 March 2020, particularly in view of her conduct in putting out “feelers” for alternative employment in late 2019, but it is more likely than not, in my assessment, that Ms Reddon would not have resigned prior to 5 March 2020. Ms Reddon had worked at the Bellevue Hotel for some time and, for the most part, enjoyed her role there.
[93] In my view, it is unlikely that Ms Reddon would have remained employed at the Bellevue Hotel after 5 March 2020 because the operator of the bistro is the Head Chef, with the result that Ms Reddon could not have retained that position and it is unlikely, having regard to her significant period of employment as the Head Chef, that she would have been offered and accepted a position as a Chef working under the new Head Chef.
[94] In all the circumstances and weighing up the likelihood of the various possibilities, my preliminary finding is that Ms Reddon would have remained employed in the Bellevue Hotel until 5 March 2020 if her employment had not come to an end at the conclusion of her two week notice period on 20 December 2019.
[95] Ms Reddon’s gross weekly remuneration at the Bellevue Hotel was $1,300 per annum. It follows that in the period from 21 December 2019 until 5 March 2020 Ms Reddon would have received $14,040 gross (10.8 weeks x $1,300 = $14,040). In my preliminary view, that is the remuneration that Ms Reddon would have received, or would have been likely to receive, if she had not been dismissed.
Remuneration earned (s 392(2)(e)) and income reasonably likely to be earned (s 392(2)(f))
[96] In the period from 21 December 2019 until 5 March 2020, Ms Reddon received $11,228.34 gross remuneration from her employment at Hamilton’s restaurant. 32 That was the only remuneration Ms Reddon received during that period.
[97] Thus, my preliminary view is that $2,811.66 is the gross amount of remuneration Ms Reddon would likely have earned had she not been dismissed by Bogeye and instead continued to be employed in the Bellevue Hotel until 5 March 2020 ($14,040 - $11,228.34 = $2,811.66). This calculation is intended to put Ms Reddon in the position she would have been in but for the termination of her employment. 33
Viability (s 392(2)(a))
[98] No evidence was adduced on behalf of Bogeye, and no submission has yet been made, that any particular amount of compensation would affect the viability of Bogeye’s enterprise.
[99] My preliminary view is that no adjustment will be made on this account.
Length of service (s 392(2)(b))
[100] My preliminary view is that Ms Reddon’s period of service with Bogeye (almost 2.5 years) does not justify any adjustment to the amount of compensation.
Mitigation efforts (s 392(2)(d))
[101] The evidence establishes that Ms Reddon made efforts to obtain alternative employment following her dismissal on 20 December 2019. In particular, Ms Reddon sought and obtained employment with Hamilton’s and sought other employment to top up her casual hours of work at Hamilton’s.
[102] In all the circumstances, my preliminary view is that Ms Reddon acted reasonably to mitigate the loss suffered by her because of the dismissal and I do not consider it appropriate to reduce the compensation on this account.
Any other relevant matter (s 392(2)(g))
[103] It is necessary to consider whether to discount the remaining amount ($2,811.66) for “contingencies”. This step is a means of taking into account the possibility that the occurrence of contingencies to which Ms Reddon was subject might have brought about some change in earning capacity or earnings. 34 Positive considerations which might have resulted in advancement and increased earnings are also taken into account.
[104] The discount for contingencies should only be applied in respect to an “anticipated period of employment” that is not actually known, that is a period that is prospective to the date of the decision. 35
[105] Because I am looking in this matter at an anticipated period of employment which has already passed (21 December 2019 to 5 March 2020), there is no uncertainty about Ms Reddon’s earnings, capacity or any other matters during that period of time.
[106] In all the circumstances, my preliminary view is that it is not appropriate to discount or increase the figure of $2,811.66 for contingencies.
[107] Save for the matters referred to in this decision, my preliminary view is that there are no other matters which I consider relevant to the task of determining an amount for the purposes of an order under s 392(1) of the Act.
[108] I have considered the impact of taxation, but my preliminary view is that I prefer to determine compensation as a gross amount and leave taxation for determination.
Misconduct (s 392(3))
[109] Ms Reddon did not commit any misconduct, so my preliminary view is that this has no relevance to the assessment of compensation.
Shock, distress or humiliation, or other analogous hurt (s 392(4))
[110] I note that in accordance with s 392(4) of the Act, the amount of compensation calculated does not include a component for shock, humiliation or distress.
Compensation cap (s 392(5)-(6))
[111] The amount of $2,811.66 is less than half the amount of the high income threshold immediately before the dismissal. It is also less than the total amount of remuneration to which Ms Reddon was entitled in her employment with Bogeye during the 26 weeks immediately before her dismissal. In those circumstances, my preliminary view is that there is no basis to reduce the amount of $2,811.66 by reason of s 392(5) of the Act.
Instalments (s 393)
[112] No application has been made to date by Bogeye for any amount of compensation awarded to be paid in the form of instalments.
[113] In my preliminary view, the application of the Sprigg formula does not, in this case, yield an amount that is clearly excessive or clearly inadequate. Accordingly, my preliminary view is that there is no basis for me to reassess the assumptions made in reaching the amount of $2,811.66. 36
[114] For the reasons I have given, my preliminary view is that a remedy of compensation in the sum of $2,811.66 (less taxation as required by law) in favour of Ms Reddon is appropriate in the circumstances of this case.
DEPUTY PRESIDENT
Appearances:
Ms Reddon, on behalf of herself.
Mr Atkinson, on behalf of the respondent.
Hearing details:
2020
Newcastle:
17 April.
Printed by authority of the Commonwealth Government Printer
<PR718693>
1 Bupa Aged Care Australia Pty Ltd v Tavassoli [2017] FWCFB 3941 at [47]
2 Doumit v ABB Engineering Construction Pty Ltd Print N6999 (AIRCFB, Munro J, Duncan DP, Merriman C, 9 December 1996)
3 Ibid
4 Ex R2
5 See paragraph [20] above
6 Ex R1
7 Ex R1
8 Ex R1
9 Ex R1
10 Ex R2
11 Ex A2 at [12]; Ex A1 at [12]
12 Ex R2 – 3 December 2019 diary entry
13 Ex A2 at [13]
14 Ex A8 and Ex A9
15 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-8
16 Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373
17 Ibid
18 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at 685
19 Ibid
20 Ibid at 684
21 Webb v RMIT University [2011] FWAFB 8336 (Drake SDP, Hamilton DP, Jones C, 8 December 2011) at [6]
22 Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport (2000) 98 IR 137 at [62]
23 Ibid
24 King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) Print S4213 [24]
25 Ex R1
26 Chubb Security Australia Pty Ltd v Thomas Print S2679 (AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 2000), [41]; Read v Cordon Square Child Care Centre [2013] FWCFB 762, [46]-[49]
27 Explanatory Memorandum, Fair Work Bill 2008 (Cth) [1542]
28 Kable v Bozelle, Michael Keith T/A Matilda Greenbank [2015] FWCFB 3512 at [17]
29 (1998) 88 IR 21
30 Tabro Meat Pty Ltd v Heffernan [2011] FWAFB 1080; Read v Golden Square Child Care Centre [2013] FWCFB 762; Bowden v Ottrey Homes Cobram [2013] FWCFB 431
31 Double N Equipment Hire Pty Ltd v Humphries [2016] FWCFB 7206 at [16]-[17]
32 Ex A8 – Ms Reddon’s payslips from Hamilton’s restaurant ($1,330.40 + $3,586.53 + $2,518.84 +$1,337.84 +$1,446.21 + (9/14 (days between 26 Feb and 5 March) x $1,568.81 = $1,008.52) = $11,228.34
33 Bowden at [24], citing Ellawala v Australian Postal Corporation Print S5109 at [35]
34 Ellawala v Australian Postal Corporation Print S5109 at [36]
35 Enhance Systems Pty Ltd v Cox PR910779 at [39]
36 Smith v Moore Paragon Australia Ltd (2004) 130 IR 446 at [32]