[2020] FWC 5364  [Note: An appeal pursuant to s.604 (C2020/8803) was lodged against this decision - refer to Full Bench decision dated 21 January 2021 [[2021] FWCFB 274] for the result of the appeal.]
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Ms Norma Ah San
v
Shamrock Consultancy Pty Ltd
(U2020/6149)

DEPUTY PRESIDENT CROSS

SYDNEY, 16 NOVEMBER 2020

Application for an unfair dismissal remedy.

[1] This decision arises from an application made by Ms Norma Ah San (the “Applicant”) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) for relief in respect of the termination of her employment by Shamrock Consultancy Pty Ltd (the “Respondent”). The Applicant’s dismissal occurred on 15 April 2020 by way of a termination letter that stated the reason for the dismissal to be abandonment of employment.

[2] The Applicant asserted that her dismissal was unfair and that the Respondent had no valid reason to terminate her employment. The Respondent, in its response, alleged that numerous attempts were made to contact the Applicant and that no response was received for a number of days. The Respondent then considered the Applicant to have abandoned her employment and issued the Applicant with the termination letter. The matter was listed for Hearing, and was heard, on 28 September 2020.

[3] The Applicant was represented by Mr M Alkan, a paid agent who appeared with permission. The Respondent was represented by Mr Miles of Counsel who also appeared with permission. In the Hearing the Applicant gave evidence by way of two statements and she was cross-examined. The Respondent relied upon statements from Mr Troy Finch, the National General Manager of Allied Express Pty Ltd (“Allied”), and Mr John Richardson, the National Operations Manager of Allied. Both Mr Finch and Mr Richardson were cross-examined.

Background Facts

[4] The bulk of the relevant evidence in the matter was contained in correspondence between the parties. The Respondent provides administrative and clerical support staff to the business of Allied, and employed the Applicant as a Business Development Manager. The Respondent is owned wholly by Allied.

[5] The Applicant commenced employment with the Respondent on 17 June 2019. It was common ground there were no issues regarding the Applicant’s performance at work during the course of her employment.

[6] On 26 March 2020 the Applicant was absent from the workplace on sick leave. The Applicant provided a medical certificate advising that she was unfit for work from 26 March 2020 to 2 April 2020. Ms. Ah San also sent an email to Mr Finch that said, “Hi Troy, Went to docs and she's done some tests, given me a week off and ordered me to stay indoors until test results are through. She doesn't think I have the virus but as a precaution she's asked I stay home and anyone I live with is isolated too. Attached docs cert Norma.”

[7] The Respondent asserted it was the policy of both the Respondent and Allied at that particular time, to require that an employee must not return to work unless medical clearance was obtained concluding that the individual was no longer required to isolate. A negative test for COVID-19 was said, by the Respondent, to constitute such medical clearance.

[8] Mr Finch was instructed by Mr. Colin McDowell, the CEO of Allied, to advise the Applicant that she would need to take a test for COVID-19 prior to returning to the workplace, given she was experiencing symptoms, including a cough. On Friday, 27 March 2020, Mr Finch called the Applicant three times to discuss the need to take a COVID-19 test at 7.03am, 7.19am and 10.55am. The Applicant did not answer any of those calls. Mr Finch then left a message for the Applicant to ring him back. Mr Finch also sent the Applicant a text message at 7.03am on 27 March 2020, that stated “Hey Norma call me please”.

[9] By Monday, 30 March 2020, Mr Finch had not received a response from the Applicant, so he instructed Mrs Ashley Prasad, his Personal Assistant, to call the Applicant. Mr Finch stated that Mrs Prasad called the Applicant seven times on that day, but the Applicant failed to answer any of the calls. Mr Finch also sent the Applicant a text message at 2.55pm on 30 March 2020, that stated “have been trying to call you today please call me ASAP”.

[10] At 4.06pm on Monday 30 March 2020, the Applicant responded to Mr Finch’s text message stating, “Hi Troy Just got the call from my GP. She wont give me a clearance until I get a another consultation with her tomorrow I have a consult with her scheduled for 2pm”. Mr Finch replies stating “OK”. At 6.29pm that day, the Applicant sent Mr Finch a text message that read, “Doc didn’t give me clearance today. It was a consultation over the phone but she said she can change my med certificate to say I’m fit for work on Thursday. But in order for her to do this, I need a physical exam which I don’t understand why she couldn’t conduct it today I’m frustrated and I can’t stand my housemate and I need to come back to work. But I guess I’ll just conform to what my gp says I’ll be back at work on Friday if she doesn’t clear me tomorrow.

[11] At 3.00pm on Wednesday, 1 April 2020, Mr Finch called the Applicant on her mobile phone to discuss the need to get a test prior to returning to work. The Applicant did not answer the call. At 3.02pm, Mr Finch sent the Applicant a text message reminding her of the Respondent’s policy, and that she would not be able to return to work, as she had proposed in her last text message, unless she had a test for COVID-19 and had been cleared as fit for work.

[12] Shortly after the above text message, at 3.22pm, 1 April 2020, the Applicant sent Mr Finch an email that attached an extract of a letter from Dr Khan. The extracted letter noted that Doctors were unable to provide patients with COVID-19 clearance, and outlined the then current government criteria of self-isolation for 14 days. Six minutes later, at 3.28pm, Mr Finch emailed the Applicant stating “Where is the document that says you are fit to be back at work?”. Another six minutes later, at 3.34pm, Mr Finch sent the Applicant a text message advising her of the email he had just sent to her.

[13] At 3.34pm, a further six minutes after the email referred to in the above paragraph, the Applicant sent an email to Mr Finch stating “It's a doc cert that allows me back to work tomorrow. I just had to send you the docs version of a clearance to get your approval but she has given me the okay to return to work tomorrow. Troy, if I go to another doc, they do have to do the same tests, I'd be isolated for a number of days before they can give me the clearance to come back to work. I cant afford not to be working and getting paid. But as per your instructions, I will seek further consultation from another gp. Regards Norma.”

[14] At 3.44pm, 1 April 2020, a further ten minutes after the email referred to in the above paragraph, Mr Finch sent an email to the Applicant stating, “I understand this is a complete pain in the arse but the business is not allowing anyone that has taken time off with the type of illness and the email that you sent to us originally back to work unless we see the clearance. The GP should of done the test on you there and then and you would have been cleared and back by now”.

[15] On Thursday, 2 April 2020, after further attempts to contact the Applicant by telephone, Mr Finch sent the Applicant an email at 12.07pm stating “Did you get a referral from the GP for the test with the hospital”. The Applicant replied by email at 12.38pm, “Yes I got a referral and will get tested at Gosford hospital. There were further text messages between Mr Finch and the Applicant that day. In one message, Mr Finch advised the Applicant “Just say u have some sort of symptom so they will do it for you”, to which the Applicant replied: “I was thinking that too”.

[16] On 2 April 2020 the Applicant emailed Mr Finch attaching a ‘Confirmation of Attendance’ from NSW Health. This letter confirmed that the Applicant attended Wyong COVID-19 Clinic, and that she did not meet screening criteria for testing. On this same day the Applicant obtained another doctors certificate that certified her unfit for work for the period of 2 April 2020 to 7 April 2020. There was an issue in the proceedings as to whether the Applicant provided that certificate to the Respondent, however, other than an issue of the entitlement to be paid, whether it was so provided is not required to be determined in the matter.

[17] On Friday, 3 April 2020, the Applicant remained off work. At 8.18am Mr Finch sent a text message to the Applicant that stated “Colin has asked me to pay you a weeks holidays so that will be done today – your holiday leave will now be in the negative.” The Applicant replied, “Thank you so much Struggling thinking how I’m gonna pay my rent this week Thank you again.

[18] The last day that the Applicant was paid for was 3 April 2020. Thereafter, she was unpaid and it is clear that not being paid presented significant financial distress to the Applicant, and affected her ability to maintain her vehicle and re-new her driver’s licence.

[19] There were numerous unsuccessful attempts by Mr Finch and Mrs Prassad to contact the Applicant by telephone on Friday, 3 April, and Monday 6 April 2020. At 4.23pm, on 6 April 2020, the Applicant sent a text message to Mr Finch stating “Went to blacktown hospital 3 hour drive there and back for a 5 min consultation. Told them I have a cough, runny nose, sore throat, headache and I STILL didn’t fit the criteria and they’ve referred me to my local GP I’m at my wits How do I get back to work?”. Mr Finch responded providing a telephone number that helped another employee get tested.

[20] On Tuesday, 7 April 2020, at 12.09pm pm, Mr Finch sent the Applicant a text message that read, “Have you been tested.” The Applicant replied at 12.30pm, “Got a reference number for testing back at wrong [Wyong] hospital today… will keep you updated but I’m GETTING TESTED.” Mr Finch replied, “Thank Christ.

[21] Later on 7 April 2020, at 4.27pm, Mr Finch sent the Applicant another text message that read, “Have you been tested”. The Applicant replied, “In the waiting room.” At 6.38pm, Mr Finch sent another text message stating, “Have you been tested.”. The Applicant did not respond to that text message.

[22] On Wednesday, 8 April 2020, at 8.42am, Mr Finch sent the Applicant a text message that stated “Hello - have you been tested.” The Applicant did not respond to that text message. Mr Finch also telephoned the Applicant, without success, at 9.27am and 10.45am on that day, and sent her a further text message at 7.11pm, on 8 April 2020, that said, “They are testing at Blacktown in demountables for anyone not feeling well – did you get tested today.

[23] Six minutes later at 7.17pm the Applicant responded to the above email and stated “I went to my local GP. She refuses to see me again but another Doctor has given me a referral.” At 7.20pm Mr Finch responded stating “Just go to the Hospital at Newcastle”. At 7.22pm, the Applicant responded “Will do Troy.” While travelling to Newcastle the tyre on the Applicant’s vehicle “blew out”.

[24] The following day, on Thursday, 9 April 2020, the Thursday before Easter, the Applicant did not attend work or contact Mr Finch. At 1.30pm Mr Finch sent a text message to the Applicant that stated “Have you been to Newcastle?” The Applicant did not reply.

[25] On Easter Sunday, 12 April 2020, Mr Finch sent a further text message to the Applicant at 2.44pm, that stated “Hi Norma have you been tested?” The Applicant did not reply. The Applicant explained, and I accept, that she did not respond to Mr Finch during the Easter break as she is a “fairly religious person”.

[26] On Tuesday, 14 April 2020, the Applicant did not attend work or make any contact with Mr Finch. He sent a text message to her at 9.29am that stated “Hi Norma do you have any news for me at all?” The Applicant did not reply. Later that day, at 1.47pm, Mr Finch telephoned the Applicant, however she failed to answer the call or return that missed call.

[27] The Applicant stated that she did try to contact Mr Finch on the morning of Wednesday 15 April 2020. She stated that Mr Finch’s phone was switched off so she went into her email to send Mr Finch an email and that was when she received the letter of termination.

[28] Mr Finch met with Mr Richardson to discuss the lack of contact from the Applicant. After discussions Mr. Finch, and with the CEO of Allied, it was considered that the Applicant had abandoned her employment

[29] On Wednesday, 15 April 2020, at 9.55am, Mr. Richardson issued a letter to the Applicant that stated:

Dear Norma

You have been off work since Thursday 26 March 2020.

Your manager has attempted to contact you a number of times over the past week by telephone and also text messages, and has left messages for you to contact the company, all with no response from you.

You are advised that we now consider that you have abandoned your employment and will proceed to terminate your employment with immediate effect.

[30] At 10.35am on 15 April 2020, Mr Finch received a text message from the Applicant that stated “Sorry I missed your calls yesterday I have a few stresses of my own Tyre blown out and brakes need to be fixed, licence expired and rent to be paid this week. Trying to find financial assistance which has been stressful Once my licence is renewed, and car fixed, ill resume trying to get myself tested so I can return to work.”

[31] At 10.53am on 15 April 2020, the Applicant sent a further email to Mr Finch that stated “Tried calling today and sent a text but your phone is switched off Just went into my personal emails and found a letter of termination due to abandonment of employment That's not true. I've spoken to you every day last week and yesterday, I missed 2 of your calls due to my own financial stress and where I'm to find my next rent payment and everything else. Not sure what you want me to do. I've done everything you asked.

[32] Mr Finch responded to the above email at 10.59am stating “Norma Sent you messages on Thursday, Sunday and yesterday and there has been no response from you. I did try to call you yesterday at 1:47pm and you didn’t answer and still haven’t returned my call. That was the feedback I have had to give the business and the business has since taken this out of my hands.”

[33] At 11.02am on 15 April 2020, the Applicant sent an email to Mr Richardson that stated "I have been in communication with my manager everyday last week. Yes, I've missed his calls but always call back on the same day. I have not abandoned my employment, in fact I have done everything asked of me by my manager but has not given the outcome I need to return to work. I would ask that the business reconsider terminating my employment whilst I continue to find a way to get tested and receive a clearance to return to work."

[34] It is a term of the Applicant’s employment contract that she maintain a motor vehicle in roadworthy condition that is fit for the purpose. As at the time of the termination there were problems with the Tyre and brakes of the Applicant’s vehicle, and her drivers licence expired on the date of her termination.

Applicant’s Submissions

[35] The Applicant filed written submissions in the Commission on 20 July 2020. In those submissions, the Applicant outlined her position that she was unfairly dismissed by the Respondent. In relation to the Applicant being away from work it was submitted that the Applicant on numerous occasions provided to the Respondent evidence demonstrating her rejection from testing for not meeting the relevant criteria.

[36] The Applicant noted that it was the Respondent that demanded that she get tested for COVID-19, and upon advising her employer that she had been advised twice that she did not meet the criteria for testing, the request was repeated. Despite several attempts to obtain a COVID-19 test, the Respondent refused her return to work. Rather than failing to attend work, the Applicant was not permitted by the Respondent to return to work until she could produce evidence confirming that she had been tested for COVID-19 and that that test had returned a negative result.

[37] The Applicant submitted that she is religious and as such did not answer the Respondent’s calls over the Easter long weekend. In not answering those calls, the Applicant asserted that she could not have been considered to have abandoned her employment. The Applicant referred to the Full Bench decision in J Searle v Moly Mines Limited 1 in submitting that not answering the Respondent’s phone calls over the long weekend could not amount to abandonment on her employment.

[38] Further, the Applicant submitted that the Respondent should have made “reasonable enquiries” of the Applicant. Two phone calls over a religious long weekend, was said by the Applicant, to not amount to “reasonable enquiries”.

[39] Distinguishing the facts from Lazar v Inghams Enterprise Pty Ltd 2, the Applicant’s submissions noted that there was no relevant abandonment clause in the Applicant’s contract of employment. The Applicant submitted that she had no obligation to answer the Respondent’s calls or messages as she was on unpaid forced/personal leave and therefore not required to respond to the Respondent’s communications.

[40] In relation to the finding of abandonment of employment, the Applicant submitted that such a finding is a question of fact that turns upon whether the employee intended to repudiate the contract. Numerous attempts to undertake a COVID-19 test were pointed to by the Applicant to demonstrate that she held the intention to continue her employment.

[41] The Applicant submitted that she was notified of her termination after the decision was made, that she was not afforded any opportunity to respond to the decision and was not at any point warned that her employment was at risk of termination.

[42] The impact of the termination on the Applicant was described to include significant economic and financial impact as she had been unable to gain further employment.

Respondent’s Submissions

[43] The Respondent filed an outline of submission 5 August 2020. The Respondent submitted the matter requires the determination of whether the employment of the Applicant was:

(a) terminated on the initiative of the Respondent; and if so,

(b) whether the dismissal was harsh, unjust or unreasonable.

[44] The Respondent submitted that the requirement for the Applicant to undergo COVID-19 testing was not the cause for termination. The cause of the termination was put that the Applicant ceased communicating with the Respondent on 7 April 2020 and that therefore she had abandoned her employment on 15 April 2020.

[45] By way of background, the Respondent submitted that it holds various duties to ensure the health and safety of workers, and that workers have duties to take reasonable care for their own health and safety and to not adversely affect the health and safety of other workers. It was known that at the time of March 2020 that the COVID-19 pandemic was of concern. COVID-19 is a virus that is highly contagious and could be fatal.

[46] The Respondent relied upon the advice of NSW Health around the time of March 2020 being that if a doctor suspected a person of having COVID-19, that person should not attend work and should instead remain isolated until a doctor advises that person that they no longer need to isolate.

[47] The Applicant was absent from work from 26 March 2020 until 2 April 2020, and supplied a medical certificate from her doctor for this period. The Respondent noted that the Applicant emailed Mr Finch advising that her doctor said that it was possible that she may have COVID-19 and that she was required to self-isolate. The requirement to obtain medical clearance, under the Respondent’s policy, was confirmed by Mr Finch to the Applicant on 31 March 2020.

[48] The Respondent noted the chronology of attempted and actual communications and submitted that the Applicant abandoned her employment. It submitted “The classic concept of abandonment is where the employee fails to attend for work and the employer is unable to communicate with the employee as to his or her intentions.

[49] The Respondent submitted that a reasonable person would have formed the view that the Applicant was refusing to communicate with her employer, without any explanation and was unwilling to cooperate with the reasonable work health and safety policy of the Respondent to enable the Applicant to return to work and perform her obligations under the employment contract, in circumstances where the Applicant:

(a) advised the Respondent that she was in the waiting room for an appointment to be tested at Wyong, but failed to advise the Respondent of the outcome;

(b) advised the Applicant that she would travel to Newcastle to be tested but failed to advise the Respondent whether she had done so nor the outcome of that attempt;

(c) did not advise the Respondent that she was unable to obtain a medical clearance to attend work;

(d) did not advise the Respondent that a doctor or public health unit had advised that she no longer needed to be in isolation;

(e) failed to answer when the Respondent called her work issued mobile phone, despite attempts before, during and after the Easter long weekend;

(f) failed to answer text messages sent to the Applicant’s work issued mobile phone; and

(g) failed to communicate in any way with the Respondent between 7:22 pm on Wednesday 8 April 2020 and 9:30 am on Wednesday 15 April 2020.

[50] Alternatively, it was denied by the Respondent that the Applicant’s dismissal was unfair. The Respondent asserts that it had a valid reason to terminate the Applicant’s employment, being her repeated failure to communicate in an “honest and forthright manner”.

[51] Further, the Respondent says that the Applicant could no longer perform the inherent requirements of her position because her licence was not valid at the time of termination, and her car was not operational.

Consideration

(a) Was the Applicant Dismissed?/Abandonment

[52] Issues associated with abandonment of employment were recently considered as part of the 4 yearly review of modern awards. A Full Bench of the Commission handed down a decision in January 2018 3, which specifically considered these issues in the context of provisions in a number of Award, but also gave consideration to the meaning of the expression “abandonment of employment,” and to its relevance in the context of an unfair dismissal application. The Full Bench stated as follows (references omitted):

“Abandonment of employment” is an expression sometimes used to describe a situation where an employee ceases to attend his or her place of employment without proper excuse or explanation and thereby evinces an unwillingness or inability to substantially perform his or her obligations under the employment contract. This may be termed a renunciation of the employment contract. The test is whether the employee’s conduct is such as to convey to a reasonable person in the situation of the employer a renunciation of the employment contract as a whole or the employee’s fundamental obligations under it. Renunciation is a species of repudiation which entitles the employer to terminate the employment contract. Although it is the action of the employer in that situation which terminates the employment contract, the employment relationship is ended by the employee’s renunciation of the employment obligations.

Where this occurs, it may have various consequences in terms of the application of provisions of the FW Act. To give three examples, first, because the employer has not terminated the employee’s employment, the NES requirement in s 117 for the provision of notice by the employer, or payment in lieu of notice, will not be applicable. Second, if a modern Award or enterprise agreement provision made pursuant to s 118 requiring an employee to give notice of the termination of his or her employment applies, a question may arise about compliance with such a provision. Third, if the employee lodges an unfair dismissal application, then the application is liable to be struck out on the ground that there was no termination of the employment relationship at the initiative of the employer and thus no dismissal within the meaning of s 386(1)(a) (unless there is some distinguishing factual circumstance in the matter or the employee can argue that there was a forced resignation under s 386(1)(b)).”

(Emphasis added)

[53] The Respondent submitted that, in contrast to Thompson v Zadlea Pty Ltd 4 (“Thompson”) this was not a case where the employer had not heard from the employee yet made no attempts to communicate with the employee. To the contrary, the Respondent submitted that it made every effort to communicate with the Applicant using her work issued mobile phone, however the Applicant failed to respond. A reasonable person would have formed the view that the Applicant was refusing to communicate with the Respondent, without any explanation, and was unwilling to cooperate with the reasonable work health and safety policy of the Respondent to enable the Applicant to return to work and perform her obligations under the employment contract.

[54] The above submission can only apply to the period from 7:22 pm on Wednesday 8 April 2020 and 9:30 am on Wednesday 15 April 2020, which by virtue of the Easter break was a period of less than three working days. Otherwise, notwithstanding that she was on sick leave and annual leave, the Applicant was reasonably responsive to the Respondent’s enquiries, and it is clear that the Applicant took a number of steps to try and obtain a test result for COVID-19 that would allow her to return to work, and commence being paid again. The Applicant was in fact frustrated at not being able to return to work, as expressed a number of times in her evidence, which I accept, including in the following exchange:5

“Mr Finch was suggesting to you - because Mr Finch was trying to help you to obtain a test, wasn't he?---Absolutely, he was - I understand he pushed me because he wanted me back at work and I wanted to come back to work.  I needed to earn an income and pay my bills - to the point where he asked me to exaggerate my symptoms, which I did, and they gave me a thorough exam, again.  They refused to test me.”

[55] I cannot conclude that a reasonable person would have formed the view that the Applicant had abandoned her employment. Between 26 March and 8 April 2020, the Applicant had contacted the Respondent at least a dozen times, provided either one or two medical certificates, and taken significant steps to attempt to satisfy the Respondent’s testing requirements. In that circumstance, a reasonable person would consider the lack of communication from 7:22 pm on Wednesday 8 April 2020 and 9:30 am on Wednesday 15 April 2020, as a sign that there may be basis for concern about the Applicant’s welfare, not that she had abandoned her employment.

[56] While on Thursday, 9 April 2020, at 1.30pm Mr Finch had asked “Have you been to Newcastle?”, and on Easter Sunday, 12 April 2020, Mr Finch had asked “Hi Norma have you been tested?”, and on Tuesday, 14 April 2020, Mr Finch had asked “Hi Norma do you have any news for me at all?”, those enquiries simply sought updates, and did not seek an explanation of what the Respondent perceived to be abandonment. 6

[57] The termination of the employment relationship did occur at the initiative of the employer, and there was a dismissal within the meaning of s 386(1)(a).

(b) Was the Dismissal Harsh, Unjust or Unreasonable?

[58] I now turn to the question of whether the dismissal of the Applicant was harsh, unjust or unreasonable. Section 387 of the Act sets out the criteria for considering harshness etc. It provides:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that FWA considers relevant.”

(i) Valid Reason for Dismissal

[59] The Respondent submitted that the repeated failure of the Applicant to communicate in an honest and forthright manner with the Respondent was a valid reason for her dismissal. The majority of such alleged failures related to the roadworthiness of the Applicant’s vehicle and that her drivers licence lapsed. The Respondent claimed the Applicant’s failure to maintain her vehicle and failure to renew her licence meant that she was unable to fulfil the inherent requirements of her position. The Respondent even submitted:

Financial stress, as asserted by the Applicant, was not caused by any action of the Respondent. This is not a case where an employer has brought some financial pressure to bear, whether legitimate or otherwise, in order to achieve some particular result.

[60] I observed the Applicant to be nothing but an honest and forthright person. She impressed me as an employee who simply wanted to return to work as soon as the Respondent would allow her. Her evidence was clear, considered and balanced, and I find any challenge to her honesty and integrity as baseless.

[61] The difficulty that arose was that the Respondent imposed a COVID-19 testing regime for its operation that required a negative test, at a time in the COVID-19 pandemic when the availability of such testing was very limited. The Applicant tried a number of times to satisfy that regime, once even travelling three and a half hours to Blacktown Hospital for a five minute consultation.

[62] While not a question agitated by the parties in the Hearing, I consider it at least arguable that the Respondent was obliged to pay the Applicant between 3 and 15 April 2020. While the Respondent may seek to rely on the second medical certificate for part of that period, it was the Respondent’s case that they did not receive it. Otherwise, if the Applicant was willing and able to return to work but for the Respondent’s COVID-19 regime, the entitlement to payment is a live issue.

[63] Nonetheless, the evidence is that the Applicant’s last day of pay was 3 April 2020. As early as 1 April 2020, the Applicant advised Mr Finch “I cant afford not to be working and getting paid.”. I consider the financial stress undoubtedly suffered by the Applicant was caused substantially by the Respondent. Once that stress was relieved by the recommencement of payment of salary, I have no doubt the Applicant would have promptly attended to the issues of her vehicle and licence. That she took some weeks to attend to her licence and vehicle after her termination was simply manifestation of the financial stress further exacerbated by her dismissal.

[64] For the reasons set out above, I find that the Respondent did not have a valid reason to dismiss the Applicant from her employment.

(ii) Whether the Applicant was Notified of the Reason/Given an Opportunity to Respond

[65] The Respondent accepted that the Applicant was not notified of the consequences of her failure to communicate in a way that was separate and prior to the conclusion that she had abandoned her employment. The Applicant was simply notified of the of the reasons for termination by the letter dated 15 April 2020. I regard the failure to notify the Applicant of reasons and/or give her the opportunity to respond as matters relevant to the conclusion that the Applicant’s dismissal was harsh, unjust or unreasonable.

(iii) Support person

[66] The Applicant could not request to have a support person as she was not aware of any dismissal occurring. Nonetheless, as no request was made I consider this a neutral consideration.

(iv) Warnings

[67] As noted above, it was common ground there were no issues regarding the Applicant’s performance at work during the course of her employment. Accordingly this matter is not relevant to the consideration as to whether the Applicant’s dismissal was harsh, unjust or unreasonable.

(v) Size of the business/human resources

[68] These are not relevant considerations as the Respondent, and Allied, are relatively large companies and well resourced.

(vi) Other relevant matters

[69] There were no other relevant matters to be considered on the issue of whether the dismissal was harsh, unjust or unreasonable.

Conclusion on Dismissal

[70] Taking into account the matters referred to above, the dismissal of the Applicant was harsh unjust and unreasonable. In particular, there was no valid reason for dismissal, a failure to notify of the reason for dismissal, and no opportunity to respond.

Remedy

(a) Reinstatement

[71] The Applicant did not seek the primary remedy of reinstatement. However, had she so sought reinstatement I would, subject to hearing from the parties, have seriously considered making such an order. As noted above, it was common ground there were no issues regarding the Applicant’s performance at work during the course of her employment. The circumstances of the dismissal, which I have found to be harsh unjust and unreasonable, could not have reasonably affected the working relationship between the parties. Nonetheless, as reinstatement was not sought, I turn to consider whether it is appropriate to make an order for compensation.

(b) Compensation

[72] The criteria relevant to the deciding of the amount of compensation are set out in s.392(2). That section provides:

“Criteria for deciding amounts

(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer's enterprise; and

(b) the length of the person's service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that the FWC considers relevant.”

I address below those criteria in the customary order of consideration. 7

(i) Remuneration that would have been received (s.392(2)(c))

[73] In Double N Equipment Hire Pty Ltd t/a A1 Distributions v Alan Humphries 8, the Full Bench held:

“[16] The well-established approach to the assessment of compensation under s.392 of the FW Act, taking into account the matters specified in s.392(2), is to apply the “Sprigg formula” derived from the Australian Industrial Relations Commission Full Bench decision in Sprigg v Paul Licensed Festival Supermarket. This approach was articulated in the context of the FW Act in Bowden v Ottrey Homes Cobram and District Retirement Villages. Under that approach, the first step to be taken in assessing compensation is to consider s.392(2)(c) - that is, to determine what the applicant would have received, or would have been likely to receive, if the person had not been dismissed. In Bowden this was described in the following way:

‘[33] The first step in this process - the assessment of remuneration lost - is a necessary element in determining an amount to be ordered in lieu of reinstatement. Such an assessment is often difficult, but it must be done. As the Full Bench observed in Sprigg:

‘... we acknowledge that there is a speculative element involved in all such assessments. We believe it is a necessary step by virtue of the requirement of s.170CH(7)(c). We accept that assessment of relative likelihoods is integral to most assessments of compensation or damages in courts of law.’

[34] Lost remuneration is usually calculated by estimating how long the employee would have remained in the relevant employment but for the termination of their employment. We refer to this period as the ‘anticipated period of employment’...’

[17] The identification of this starting point amount “necessarily involves assessments as to future events that will often be problematic”. Once this first step has been undertaken, various adjustments are made in accordance with s.392 and the formula for matters including monies earned since dismissal, contingencies, any reduction on account of the employee’s misconduct and the application of the cap of six months’ pay. This approach is however subject to the overarching requirement to ensure that the level of compensation is in an amount that is considered appropriate having regard to all the circumstances of the case.”

[74] The Respondent submitted 9:

“Yes, Deputy President, and the submission we're saying is because the failure to maintain the vehicle had existed prior to the cessation of pay, that the financial stress existed prior to the cessation of pay, because of the payment of annual leave.  It was clear that already the applicant was under financial stress at the time at which annual leave was paid.  We say those are matters that go to whether the applicant would have been able to continue to perform her work.

We don't say it was some negative connotation in relation to the actual performance of her work, but the ability to perform her work in order to get to the workplace.  In order to perform her work, it's agreed that she required a motor vehicle and a driver's licence.  The driver's licence is one thing, but the maintenance of the motor vehicle was a matter that predated any of this, such that we say the Commission should properly conclude that the employment would not have long continued.  Particularly, in circumstances where this was not a long-standing employee.”

[75] As I have found above regarding valid reason for dismissal, the financial stresses of the Applicant that impacted on her ability to renew her drivers licence and repair her motor vehicle, were caused substantially by the Respondent not paying her salary, notwithstanding that she was ready, willing and able to attend work. I have further found that once the financial stress was relieved by the recommencement of payment of salary, the Applicant would have promptly attended to the issues of her vehicle and licence. Accordingly I reject the Respondent’s submission.

[76] The Applicant declined to make any submission in relation to this factor. 10

[77] I consider the remuneration that would have been received by the Applicant had she not been dismissed would have been substantial. Had the Applicant not reported any illness or symptoms, the Respondent would not have imposed what proved to be the unattainable requirement of a negative COVID-19 test, with such unattainability relating to test availability rather than symptoms. Termination on any other ground was unlikely, and not foreshadowed in any way.

[78] The remuneration the Applicant would have received, or would have been likely to receive, if she had not been dismissed would have been at least another years’ remuneration. I therefore find the anticipated period of further employment would have been twelve months.

(ii) Remuneration earned (s.392(2)(e))

[79] The Applicant’s evidence, which I accept was that since her termination she had been unable to obtain any further employment. She had received some social security payments but such amounts are not deducted pursuant to this factor. There will therefore be no deduction from the compensation amount on account of remuneration earned.

(iii) Income reasonably likely to be earned (s.392(2)(f))

[80] While I accept that since her termination the Applicant has not been able to obtain any further employment, as I have found that the anticipated period of further employment would have been twelve months, I must consider the income that the Applicant is likely to earn up to 15 April 2021. In that five month period, I consider it is likely that the Applicant will earn two months pay, and so make a deduction of two months from the twelve month period found above.

(iv) Length of service (s.392(2)(b))

[81] The Applicant was only employed for a period of ten months. I consider that the Applicant’s length of service calls for a significant downward adjustment to the compensation amount that should otherwise be ordered. I reduce that amount from ten months to four months on account of the Applicant’s length of service.

(v) Other matters (s.392(2)(g))

[82] For the period from the date of the termination of employment until this decision, the economic effect of the termination of employment is known and capable of calculation. I consider that any discount for contingencies should only be applied in respect to an anticipated period of employment that is not actually known, being a period that is prospective to the date of the decision. Accordingly there is no discount for contingencies.

(vi) Viability (s.392(2)(a))

[83] No submission was made on behalf of the Respondent that any particular amount of compensation would affect the viability of the Respondent’s enterprise. Accordingly, no adjustment will be made on this account.

(vii) Mitigation efforts (s.392(2)(d))

[84] The Respondent criticised the paucity of the Applicant’s evidence regarding mitigation. While there was some basis to their submissions, I also note the Applicant’s evidence that …“Since my termination I've been unable to obtain any further employment.” That evidence was not tested by the Respondent. I accept that the Applicant has made reasonable efforts to mitigate the loss suffered by her because of the dismissal. The Applicant’s mitigation efforts do not provide a basis for reducing the amount of compensation.

(viii) Misconduct (s.392(3))

[85] The Respondent submitted 11:

“We say that this is a matter in which subsection (3) of section 392 comes into place in that we say the misconduct, being the failure to communicate with the employer, the failure to advise the employer that she was unable to meet the inherent requirements of her position. The reasons for that, we say, is abundantly clear that her failure to communicate, contributed to the employer's decision to dismiss, if that's what the Commission concludes has occurred.

We say that's a matter that the Commission must take into account in reducing the amount that might otherwise be ordered as a remedy. In particular, the circumstances of the fact that the applicant was unable to perform the work at any time, including from 15 April by virtue of the car, and from 15 April by virtue of the vehicle and the lack of a driver's licence. One of the areas that is simply solely within the knowledge of the applicant to which no evidence has been is how it is that when the applicant says that she was unable to afford her rent, and yet continues to reside, she says, at the same place for the entire time, subsequently. There's no evidence as to how that occurred or what circumstances led to that.

[86] I have above rejected any suggestion of misconduct on the part of the Applicant. I have further found regarding valid reason for dismissal, that the financial stresses of the Applicant that impacted on her ability to renew her drivers licence and repair her motor vehicle, were caused substantially by the Respondent not paying her salary, notwithstanding that she was ready, willing and able to attend work. Accordingly I reject the Respondent’s submission that compensation should be reduced due to misconduct.

(xi) Compensation cap (s.392(5))

[87] The amount of four months pay is less than the compensation cap in s.392(5) of the Act for the Applicant.

Conclusion as to Remedy

[88] I am satisfied an order for the payment of compensation of four months’ pay, less taxation as required by law, by the Respondent to the Applicant in lieu of reinstatement is appropriate in all the circumstances of the case. It accords a fair go all round to both the Respondent to the Applicant. The relevant calculation should be based on the Applicant’s base salary, excluding any amounts regarding provision of a motor vehicle.

[89] It is unclear on the evidence before the Commission the amount of salary the Applicant received each month. The parties are directed to confer and, if possible, advise my Associate within seven days of the gross amount of one months pay to the Applicant. Upon such advice being received an order for compensation shall be issued. In lieu of agreement, I will reconvene the matter and determine the compensation amount.

CONCLUSION

[90] For the aforementioned reasons, I am satisfied that the dismissal of the Applicant by the Respondent on 15 April 2020 was ‘harsh, unjust and unreasonable,’ within the meaning of s 387 of the Act. Finally, s 381(2) of the Act is a significant and overarching object of Part 3-2. It is expressed in these terms:

381 Object of this Part

(1) The object of this Part is:

(a) to establish a framework for dealing with unfair dismissal that balances:

(i) the needs of business (including small business); and

(ii) the needs of employees; and

(b) to establish procedures for dealing with unfair dismissal that:

(i) are quick, flexible and informal; and

(ii) address the needs of employers and employees; and

(c) to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.

(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a "fair go all round" is accorded to both the employer and employee concerned.

Note: The expression "fair go all round" was used by Sheldon J in in re Loty and Holloway v Australian Workers' Union [1971] AR (NSW) 95.’

[91] In this case, I am satisfied compensation in an amount of four months’ pay plus superannuation is appropriate have regarding to all the circumstances of this case. The amount so ordered will be with any deductions of appropriate taxation according to law. I am satisfied that the remedy I have determined will ensure a ‘fair go all round’ is accorded to both the Applicant and the Respondent. The amount of compensation is to be paid to the Applicant within 21 days of this decision.

DEPUTY PRESIDENT

Appearances:

Mr M Alkan (HR Experts), for the Applicant

Mr B Miles of Counsel and Ms B Pendlebury, Solcitor (Pendlebury Workplace Law), for the Respondent

Hearing details:

2020
Sydney
28 September

Printed by authority of the Commonwealth Government Printer

<PR723377>

 1   [2008] AIRCFB 1088.

 2   [2013] FWC 3447.

 3   [2018] FWCFB 139, at [21] and [24].

 4   [2019] FWC 1687.

5 Transcript PN 192.

 6   Thompson at [50].

 7   Sprigg v Paul’s Licensed Festival Supermarket (1998) 88 IR 21.

 8   [2016] FWCFB 7206.

 9   Transcript PN 577 and 578.

 10   Transcript PN 445.

 11   Transcript PN 557 and 558.