| FWC 5994|
|FAIR WORK COMMISSION|
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Dee Sinclair
Sunwise Constructions Pty Ltd
MELBOURNE, 28 SEPTEMBER 2021
Application for an unfair dismissal remedy – Small Business Fair Dismissal Code
 This decision concerns Ms Sinclair’s application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act). Ms Sinclair contends that her dismissal by Sunwise Constructions Pty Ltd was unfair because there was no valid reason for the dismissal. The company contends that it dismissed Ms Sinclair because she was unable to meet the obligations of her employment contract and attend work full time. It submits that the dismissal was consistent with the Small Business Fair Dismissal Code (the Code) and that in any event, the dismissal was not unfair.
 Section 396 of the Act requires the Commission to decide four matters before considering the merits of an unfair dismissal application. My findings are:
• Ms Sinclair’s application was made within the 21-day period required by s.394(2).
• Secondly, Ms Sinclair was a person protected from unfair dismissal, as she earned less than the high-income threshold and had served the minimum period of employment (s.382).
• Thirdly, the dismissal was not a case of genuine redundancy.
• Finally, as I explain below, I have concluded that the dismissal was consistent with the Code and that her application must therefore be dismissed.
 I granted Ms Sinclair permission to be represented by a paid agent, having been satisfied that it would enable the matter to be dealt with more efficiently and that it would be unfair not to allow representation because the Applicant was unable to represent herself effectively.
 Ms Sinclair was employed at Sunwise Constructions Pty Ltd to undertake office administrator/receptionist duties on a full-time basis. She was employed from October 2016 until her dismissal took effect on 25 May 2021.
 Sunwise Constructions Pty Ltd is owned and run by Mr Wayne Elkin together with his wife Ms Elisa Elkin and has 8 employees. It is not contested that it is a small business within the meaning of the Act.
 Ms Sinclair’s duties included receiving goods, taking calls, and dealing with visitors to the site (as other staff were commonly out on jobs) and keeping the files up to date, including the physical files kept in the office. From the Elkins’ perspective, because Ms Sinclair was often the first point of contact for visitors, it was important for her to be on site during business hours.
 At the same time, Ms Sinclair is responsible for the care of her grandson, Blake, who has special needs. She has limited support to help her with this responsibility, and this meant that it was often difficult for Ms Sinclair to care for him and also meet her responsibilities to her employer.
 Whilst Ms Sinclair’s role was full-time, between 8-8.30am to 4-4.30pm, in practice Ms Sinclair was unable to work these hours for much of her employment. Ms Sinclair’s evidence was that for the first couple of years she worked full-time hours, and for the rest of her employment, although no formal agreement was involved, she worked as many hours as she could. Mr Elkin’s evidence was that her hours for the six months prior to her dismissal averaged less than 30 per week, with some of these hours at a time of her choosing, outside business hours.
 Ms Sinclair acknowledged in her evidence that her absences created issues for the business, however from her perspective, she was doing the best that she could in very difficult circumstances. Ms Sinclair explained that when dealing with a child with a disability, having support services arrange meetings and appointments, usually at short notice or with weeks long waits, it is imperative that these commitments are kept otherwise the entire process would take longer.
 I have no doubt Ms Sinclair was doing the best she could. At times she came and started work at 4:00am to attend to her tasks. However, from her employer’s perspective, many of her duties required her to be on-site during business hours and not all work could be performed at odd times of the day and night.
 Ms Elkin’s evidence was that the company gave Ms Sinclair a lot of leeway in consideration of her family life, including allowing time off, altered work hours, children in the office, allowing her to forward office calls to her mobile to take calls at home while a child was sick etc, and that if less consideration had been given to her family life, her employment with Sunwise Constructions would have ended several years ago. Ms Elkin’s evidence was that whilst they had spoken to Ms Sinclair about her reliability, they had not gone so far as to put her job at risk, as whilst the business could sustain it, they understood her family responsibilities and were trying to be helpful.
 In February 2021, Ms Sinclair approached Mr Elkin and said she was having problems with Blake, and he said that she should “do what you can when you can and work things out”. 1
 However, 2020 had been a difficult year for the business. Shortly after this conversation, Mr and Ms Elkin realised the extent of the financial strain the business was under. For them, it was now more important than ever to ensure the business was operating efficiently, moving, and tracking work quickly. This included having everything in the office in order to streamline progress on job sites. In this context, the impact of Ms Sinclair’s irregular attendance and hours for the business was no longer sustainable. Ms Elkin’s evidence was that there had been a marked decline in Ms Sinclair’s work hours and reliability in the preceding months, over and above the existing issues, and this was having a significant negative impact on the business which could no longer be left unaddressed.
 Mr and Ms Elkin met with Ms Sinclair on Monday 19 April 2021. Mr Elkin’s evidence was that a few days earlier he told Ms Sinclair that he and Ms Elkin needed to talk to her about her employment and specifically about the hours she was working. The meeting was planned for Thursday 15 April but had to be rescheduled for the 19th. However, Ms Sinclair’s evidence was that she had no prior notification about the meeting, and that Mr and Ms Elkin simply came into the office on 19 April 2021 and started the discussion. Ms Sinclair said that she felt ambushed and that she was not given an opportunity to have a representative or a support person present. It was not suggested that Ms Sinclair requested a support person at any time.
 Ms Elkin’s evidence was that at the meeting, they explained that the way Ms Sinclair had been filling the role was no longer sustainable for the business, and that if she couldn’t be there full-time during business hours, she would need to be let go so the business could find someone else who could do it. She was given a couple of days to consider whether she could commit to working towards full time, and if she couldn’t she’d need to be let go. They told Ms Sinclair that if she committed to working full time, there were other things they needed to address with her to bring her performance up to scratch. They were aware that she had been given permission earlier in the year to work odd hours by Mr Elkin, but it was no longer possible to sustain this as it was impacting other workers and things weren’t getting done when they needed to get done. Ms Sinclair was given a couple of days to consider whether she would be able to give that commitment and given a month to get her hours up to scratch.
 Ms Elkin’s evidence is that shortly after the meeting, she made handwritten notes of what had been discussed. Those notes read:
Dee Sinclair 19/4/21
Meeting re requirement of position
In attendance: Dee Sinclair, Wayne Elkin, Elisa Elkin
Role of the office worker/receptionist position is full-time, on site, during business hours. Ideally 8am – 4.30pm with a 30 minute lunch break. The role has not been filled as required by the presence of the worker employed in the position which is putting a strain on the business and requiring others to fill in thus others are not able to do what they need to do.
Dee given 2 days to consider whether she can/is willing to make that commitment to meet the onsite presence needs of the role. If so, she is welcome to stay on. If not, business would need to find someone who could.
Needs to be in office during rigidly set hours, not showing up, or taking off without notice can’t continue.
If Dee commits to hours then there are other items to discuss to bring actions/work habits in line with the business’ needs & requirements of the role. These were not discussed in the meeting but will be addressed soon after the commitment to the hours is given. 2 (underlining added)
 Ms Sinclair says that she never received a warning during her employment, however she acknowledges that at this meeting she “was given time to respond with how things could move forward”. 3 Whilst Ms Sinclair didn’t dispute the accuracy of the notes, she says that they weren’t taken during the meeting, and could have been written at any time.4
 Two days later, on 21 April, she told Mr Elkin that she “would do everything I could to make things work, however it would take time to get all appropriate services arranged to assist Blake’s disability”. 5 Mr Elkin’s evidence was that for the remainder of that week and the next, Ms Sinclair was able to work the required hours, but then her hours dropped significantly again.
 In the immediate lead up to her dismissal, her grandson received a diagnosis which led to him gaining access to various services under the National Disability Insurance Scheme. On 5 May 2021, Blake was granted NDIS funding which was to be used to get carers etc in to place whilst she was at work. 6
 Most of the communication between Ms Sinclair and Mr and Ms Elkin in the days leading up to the termination of Ms Sinclair’s employment are set out in emails between them between 18 and 24 May 2021. 7
 On Tuesday 18 May 2021, Ms Sinclair emailed Mr and Ms Elkin at 11.46 am:
Hi Wayne & Elisa
I have just received notification that I need to attend a care team meeting at 1.30pm tomorrow, so will have leave at 1pm. I can start work at 7am if that’s ok with you, please just let me know.
Also, as mentioned yesterday, I can only work until 1.30pm on Friday afternoons. Austin has hydro at 2pm and mum & dad can’t take Blake with them. I now have NDIS funding and am working with a support worker to get someone to cover Blake until 3.30pm each day, taking pressure off mum & dad.
Once I have the home carer, I will be able to work from 8am to 3.15pm 1 week out of 3 & the other 2 weeks from 9.15am to 3.15pm. This will allow me to be able to take Blake to and be involved in his therapies in the afternoons. Please let me know if this works for you.
Thank you both from the bottom of my heart for your empathy, kindness & understanding. 8 (underlining added)
 On Thursday 20 May 2021, Elisa Elkin, responded by email:
Thanks for your email. Sorry we haven’t had a chance to sit down and further discuss things face to face since our last meeting on 19 April 2021. As busy as we are I thought an email would at least answer some immediate questions and help us return to the same page on some items.
Based on the email below and other meetings you’ve told us of, it certainly seems you’ll be busy for some time in required meetings with support personnel, etc. We’re glad to hear things are coming together for Blake’s care and we hope things continue to work out for you in that regard. We strongly believe in family coming first and we commend you for your dedication to your family and are empathetic to the demands your family situation has on your time, thoughts and emotions.
As empathetic as we are to your situation, the hours you have requested below will not work for the business. As discussed in our April meeting, the position you currently fill is full time on site during business hours. It hasn’t been filled the way it needs to be for quite some time and the business is suffering for it, which impacts others in the business. We are mindful of the family matters that have demanded your time during work hours but unfortunately there is nothing left to give and we need to have the person who fills the position fulfil it as required.
In our April meeting we gave you some time to think about whether you could commit to the hours required. A few days later you gave that commitment. Now that your situation/availability has changed again, take some time to think about whether you are still prepared/able to commit to the hours required. While you’re considering your calendar, please take into account whether you can give your full focus to work during work hours (ie personal matters, including calls, can be taken care of before or after work or during your lunch break, excluding true emergencies). Take the weekend to think about it and we can move on to discuss/prepare for the next step(s), based on your decision, on Monday.
If you need clarification on anything please feel free to contact me.
 After receiving the email from Elisa Elkin, Ms Sinclair telephoned her and “made it very clear that [she] was unable to have everything in place by Monday 24 May…”. 10 Ms Sinclair said words to the effect “I can’t work full time I guess I’ll just clear out my desk”. In hindsight, Ms Sinclair says she should have agreed at this point, but that the Elkins were willing to work with her to sort out the hours. Ms Elkin suggested that Ms Sinclair work part-time, either morning or afternoon. However, Ms Sinclair said she couldn’t do that. Ms Elkin said that she should just think about things until Monday. Ms Sinclair’s evidence was that she had been trying to find a solution since Blake’s diagnosis in February, and there was no way she could put things in place by Monday. However, as Mr Elkin explained in his evidence, there was no expectation or requirement for Ms Sinclair to have everything in place by Monday, just that she makes a decision by then.
 At 5.57 pm on Sunday 23 May, Ms Sinclair emailed the Elkins 11:
Wayne & Elisa
Thank you for your email.
Further to your comment of me committing to required work hours, I also stated that it would take some time for me to put things in place, ie a couple of months. Blake’s formal diagnosis is only recent & the NDIS funding has only been approved since 5th of May. As part of putting things in place, I am required to attend specialist appointments & meetings. Some of these meetings have given me only 24 hours notice. Securing services is proving to be difficult, however I do have a dedicated worker that is trying to do this on my behalf & get services happening as soon as possible but it was never going to happen within a couple of days.
In the short term I cannot commit to full time work, but I request I be given leave for 4 to 6 months which I believe is the time required to put everything into place. Blake’s care & mental health & my mental health are paramount at this time & I feel that this is the best option moving forward.
I also wish to advise that I will be on annual leave next week as you could understand trying to sort all of this out at such short notice has taken its toll on me & has caused extreme stress & anxiety.
I look forward to your response.
 Ms Sinclair’s request for 4 to 6 months leave, was for unpaid leave as she did not have that amount of paid leave.
 At 11.57 am Mr Elkin emailed Ms Sinclair:
Thanks for your email. When I have a chance to sit down and think about it I’ll respond in full.
Regarding annual leave, this needs to be applied for in advance to allow for alternate arrangements to be made for the office, and then not taken unless approved. Without notice, or even a request, and given that your correspondence on Friday confirmed that you would be in on Monday, a week of leave cannot be approved at this time.
As stated, a full response will come soon. I will endeavour it have it to you some time tomorrow. 13
 At 12.03 pm on Monday 24 May 2021, Ms Sinclair emailed advising: “I am currently on medical leave and believe that I am able to use annual leave to cover short failings in sick leave” and provided a medical certificate that she had received on Friday 21 May 2021 stating that she would be unable to attend for work for 8 days from 21 to 28 May 2021.
 On Monday 24 May at 11.03 pm, Mr Elkin sent the final email to Ms Sinclair, terminating her employment, which read:
Further to my email this morning, I have considered the situation in its entirety, looked at both sides, and come to a decision.
The business cannot sustain another 4-6 month period before the role you occupy can be filled properly…Thank you for the work you have done and we wish you the best for the future.
PS Just touching the leave issue this week, we were not made aware of your medical leave until today. 14
 Mr Elkin made the decision to terminate Ms Sinclair’s employment. His evidence was that he couldn’t say at precisely what time before sending the email that he made the decision. Ms Sinclair’s employment had weighed heavily on him for some time. He said that he considered the issue carefully and the possibility of a way forward that could work for all parties. In the morning of 24 May, as set out in his email, he refrained from making a final decision because he had not had the chance to sufficiently think through her email. That night, after he had considered things carefully, he made the final decision.
 Ms Sinclair’s representative put to Mr Elkin in cross-examination that the reason he dismissed her was because she had requested leave for 4-6 months, and/or because of her absence on sick leave based on the medical certificate for a week’s absence. Mr Elkin totally rejected this suggestion. His evidence was that he dismissed Ms Sinclair because they couldn’t come to an agreement about her attendance and hours of work. It was not because she asked for leave, but because she said she could not work full time and couldn’t work part time in a way that worked for the business. Mr Elkin had read Ms Sinclair’s email of 18 May 2021 to mean that on an ongoing basis she would have to finish work at 3.15pm and couldn’t work full-time. He said that if Ms Sinclair had said that she just needed a few more weeks to put things in place and she would then be able to work full time, he would have agreed to that, and not dismissed her.
 Simply put, he says that Ms Sinclair had long struggled to juggle the demands of the position with her significant personal demands, and an impasse had been reached. The business couldn’t sustain having the position held by someone who couldn’t fill it properly as it was affecting the viability of the business and everyone’s employment.
 Mr Elkin submitted that the dismissal was consistent with the Small Business Fair Dismissal Code. Ms Sinclair was dismissed because of her capacity to do the job. She had been provided with a clear warning that she was at risk of being dismissed, most recently at the 19 April meeting. Following that meeting, the improvement in her attendance was short-lived. And contrary to the commitment she gave Mr Elkin on 21 April to work full time during business hours, her email on 18 May advised that she was only available to work on a 3-week rolling schedule with an average of just under 30 hours per week.
 Ms Sinclair’s representative submitted that she was entitled to request leave and to vary her employment arrangements, and that under the Equal Opportunity Act 2010 (Vic), an employer must not unreasonably refuse to accommodate an employee’s responsibilities as a parent or carer. He submitted that the dismissal was not consistent with the Code because she was not given a reason why she was at risk of being dismissed. There was no valid reason.
 Further, the Applicant submitted that an operative reason for her dismissal was her request for time off which related to her carer responsibilities, and the notification that she was off work on a medical condition. Mr Elkin did not dispute that he had received Ms Sinclair’s request for unpaid leave and for reduced hours before deciding to dismiss her. Other than the fact that Ms Sinclair had made these requests prior to her being dismissed, there was no evidence to support this submission.
 Ms Sinclair’s representative also submitted that there was no warning given. Referring to the Full Bench decision in Fastidia Pty Ltd v Goodwin 15, he submitted that a warning must identify the relevant aspect of the employee’s performance which is of concern to the employer, and make it clear that the employee’s employment is at risk unless the performance issue identified is addressed. In that case, whilst dealing with a different statutory provision, the Full Bench found that a statement to the employee that included “if you’re going to behave like this …. you won’t have a job” satisfied the requirement for a warning.
 In Law v Linehan Enterprises Pty Ltd 16, Deputy President Gostencnik said that:
“…an employee is warned that he or she risks being dismissed if there is no improvement, if the employee is told, cautioned or alerted to the real possibility that he or she risks being dismissed if there is no improvement.”
 Ms Sinclair’s representative also submitted that even if the account of the discussion on 19 April 2021 was accurate, then it did not constitute a valid warning because Ms Sinclair was not dismissed for her inability to work full-time hours. Rather, an operative reason for her dismissal was her request for a period of 4 to 6 months unpaid leave, and/or her taking sick leave and submitting a medical certificate.
 Ms Sinclair submitted that there was no reasonable chance to rectify the situation, there were no discussions and no capacity for her to have a support person. She says that other options were available and should have been considered as an alternative to dismissing her. Her role could have been conducted remotely, which she had done at times in 2018, and that the phones can be diverted to mobiles to ensure no calls are missed. 17 She submits that the company could have engaged a temporary role or contractor to assist during her absence18, and that Mr Elkin had never suggested a job share arrangement where her hours could be reduced to 2 or 3 days per week, which would have made it easier for Ms Sinclair to manage her competing calls on her.19 There was no evidence Ms Sinclair had requested this arrangement.
 Ms Sinclair, Mr Elkin and Ms Elkin each gave evidence at the hearing, and I consider that each of them gave truthful evidence, recounting what took place to the best of their recollection. Mr Elkin, in particular, struck me as a thoughtful, considered and highly credible witness. He did not become defensive whilst being cross-examined, and gave fulsome, detailed accounts of what had occurred, and his accounts were generally consistent with or corroborated by the evidence of Ms Elkin, notes of discussions and the content of emails set out above. He was unwavering in his evidence as to the reasons he dismissed Ms Sinclair. Where there is a conflict between his evidence and Ms Sinclair’s, I prefer Mr Elkin’s evidence.
 The dismissal of an employee will not be unfair if it was consistent with the Code. Section 388(2) of the Act provides that a person’s dismissal was consistent with the Code if, immediately before the time of the dismissal, the person’s employer was a small business employer, and the employer complied with the Code in relation to the dismissal. I accept Mr Elkin’s evidence that at the time of Ms Sinclair’s dismissal, the company employed 8 employees, and that it had no associated entities. The company was therefore a small business employer as defined in s.23 of the Act at the relevant time.
 I consider that Ms Sinclair’s dismissal was consistent with the Small Business Fair Dismissal Code, in particular the requirements concerning dismissal, other than summary dismissal. I find that:
• Ms Sinclair was given notice that Mr and Ms Elkin were going to discuss her employment, and particularly her hours, a few days before the meeting on 19 April 2021. I accept Mr Elkin’s evidence in relation to this. Whilst she was entitled to have another person present to assist, no such request was made.
• Ms Sinclair was given a reason why she was at risk of being dismissed. I find that at the meeting on 19 April 2021, Ms Sinclair was put on notice that unless she was able to work full-time hours on site, she risked being dismissed. She wasn’t expected to achieve that immediately, but was required to commit to doing so, and she was given a few weeks to achieve this. I find that this constitutes a warning.
• Ms Sinclair was given a couple of days to consider whether she was able to and would commit to working towards full time, and she gave such a commitment on 21 April 2021. This is consistent with Ms Sinclair appreciating that her employment was at risk, and I find that she was given an opportunity to respond to the warning and a reasonable chance to rectify the problem.
• Mr Elkin dismissed Ms Sinclair because they couldn’t come to an agreement about her attendance and hours of work, that she couldn’t work full time hours on site and that the business could no longer sustain the reduced and irregular hours that Ms Sinclair was working. I find that the requirement for Ms Sinclair to work full-time hours on site during business hours was a valid reason, based on her capacity to do the job.
• Whilst Mr Elkin had received Ms Sinclair’s request for 4 to 6 months unpaid leave and was absent on leave with a medical certificate from 21 May to 28 May 2021, I find that neither was a reason for her dismissal.
 The situation was a very difficult one for all involved. Ms Sinclair was trying very hard to balance and meet the competing demands on her time. Mr and Ms Elkin had been exceptionally flexible and considerate of Ms Sinclair’s situation, but there came a point where for the sake of the business and everyone’s employment, the situation became untenable. This was unfortunate, but in my view, Mr and Ms Elkin acted entirely reasonably.
 Even if I had not found the dismissal to be consistent with the Small Business Fair Dismissal Code, I would not have found it to be harsh, unjust or unreasonable.
 I am satisfied that Sunwise Constructions Pty Ltd complied with the second limb of the Code. As a result, the dismissal was not unfair and Ms Sinclair’s application for an unfair dismissal remedy must be dismissed. An order dismissing the application will be separately issued.
G Dircks of Just Relations - Consultants for the Applicant.
W Elkin for the Respondent.
Melbourne (by video)
Printed by authority of the Commonwealth Government Printer
1 Exhibit A1, Witness Statement D Sinclair at .
2 Appendix A to Form F3.
3 Exhibit A1, Witness Statement D Sinclair at .
4 Ibid at .
5 Ibid at .
6 Ibid at .
7 Attachment DS2 to Exhibit A1, Witness Statement of D Sinclair.
10 Exhibit A1, Witness Statement D Sinclair at .
11 Ibid at .
12 Attachment DS2 to Exhibit A1, Witness Statement of D Sinclair.
15 Print S9280.
16  FWC 57 at .
17 Exhibit A1, Witness Statement D Sinclair at .
18 Ibid at .
19 Ibid at .