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[2017] FWC 6267
General information, not legal advice.
Fair Work Commission
2017-12-29
Commissioner Hampton
Original judgment source is linked above.
s.394 - Application for unfair dismissal remedy
Playford City Soccer and Community Club Inc T/A Angle Vale Tavern
Application for an unfair dismissal remedy - jurisdictional issue - whether applicant dismissed - casual employee with regular and systematic shifts - removed from roster - dismissal found based upon objective understanding of parties' conduct - whether dismissal unfair - legitimate concerns about reliability but no valid reason contended - absence of procedural fairness - dismissal harsh, unjust and unreasonable - remedy - compensation determined and ordered.
[1] Mrs Corina Shears has made an application under s.394 of Fair Work Act 2009 (the FW Act) for a remedy in connection with an alleged unfair dismissal by Playford City Soccer and Community Club Inc T/A Angle Vale Tavern (the Tavern).
[2] The respondent is a community tavern operated by the Playford City Patriots Soccer Club under the governance of an elected Board and offers bar and gaming facilities as well as a dining area. The Tavern employed 24 casual employees, including its management staff, at the time of the events leading to this application.
[3] Mrs Shears commenced employment at the Tavern on 5 February 2017 on a casual basis. She worked in the gaming lounge and the bistro, although in the last few months of her employment, she was rostered almost exclusively in the bistro. Mrs Shears' last actual working shift was 6 September 2017.
[4] Mrs Shears contends that she was dismissed from her employment on 9 September 2017 because she "was always sick". She submits that she received a telephone call from the respondent's Venue Manager while she was away from the workplace on a period of absence covered by a medical certificate. Mrs Shears contends that during that phone call the Venue Manager removed her from the roster, and said words to the effect of "I'm letting you go" and indicated that this was because she was consistently unwell.
[5] Mrs Shears seeks a finding that there was a dismissal and that it was unfair. She seeks compensation amounting to five weeks' pay at a weekly rate of $909 ($4,545) and a letter of recommendation.
[6] The Tavern contends that Mrs Shears was not dismissed but following her extensive absences due to illness and the nature of her employment (working around food), she was asked to provide a medical clearance before being placed back onto the roster. The Tavern further contends that Mrs Shears is still employed but has not yet provided a medical clearance. This raises a jurisdictional question about the capacity of the Commission to hear and determine this application. That is, under s.385 of the FW Act a finding of unfair dismissal is only available where there has been a dismissal within the meaning of s.386 of the FW Act. This involves the determination of a factual and legal dispute between the parties as to the effect of a discussion between Mrs Shears and Mr Callery that took place on 9 September 2017.
[7] Despite her status as a casual employee, there is no dispute that Mrs Shears was protected from unfair dismissal within the meaning of s.382 of the FW Act. That is, relevantly the applicant has had sufficient eligible regular and systematic service; being more than the minimum of six months required.[1] There is also a valid application before the Commission.
[8] The application was subject to a determinative conference following consultation with the parties as contemplated by s.399 of the FW Act. This was conducted in a largely inquisitorial manner and given the absence of external representation for either party, appropriate assistance and latitude was provided to facilitate the presentation of each case. However, the parties retained full responsibility for the conduct of their cases and the provision of relevant evidence to the Commission and this was made clear at all stages of the proceedings.
[9] Mrs Shears represented herself in this matter with the assistance of her support person, Ms Margaret Kohlhagen. Mrs Shears provided a short witness statement and gave sworn evidence.
[10] Mr Joshua Callery, the respondent's Venue Manager and Ms Kylie Bianco, Accounts Manager, appeared for the Tavern. Both provided witness statements and gave sworn evidence.
[11] Mr William Cochrane, a consultant to the respondent and a member of the Board which oversees the Tavern, provided a written statement but did not attend to give sworn evidence. Both parties were content to proceed with the hearing of this matter in his absence. Mr Cochrane's statement was admitted into evidence on the basis that Mrs Shears accepted that it was Mr Cochrane's recollection of his telephone conversation with the applicant on 14 September 2017, albeit that what he said about the applicant not being dismissed was itself disputed.[2] I note however that Mr Cochrane was not directly involved in any of the events leading to the 9 September discussion and his statement could not be tested given his absence.
[12] There are clearly some factual matters in dispute, particularly those surrounding the conversation between Mr Callery and Mrs Shears on 9 September 2017. Ms Bianco overheard the conversation on Mr Callery's end and her evidence dealt with that conversation and other aspects which set the context for that exchange.
[13] Before the Commission there is also some employment records, including certain rosters and time and wages records relating to the last four months leading up to the events of 9 September 2017. This has enabled me to assess the frequency and extent of working hours and absences leading to those events.
[14] The "evidence" of both Mrs Shears and Mr Callery contained both factual statements and contentions about the effect of those alleged facts. Those contentions are largely matters for the Commission to determine.
[15] In terms of the evidence as to the facts, I generally prefer the written evidence of Mr Callery and Ms Bianco where it conflicts with that provided by Mrs Shears. I consider that Mrs Shears' evidence about the events of 9 September 2017 was highly influenced by her view about the impact of the discussion and was not a complete or accurate recollection. This also involved drawing implications into the statements made by Mr Callery and overlooking statements that did not fit her view of the overall outcome of the discussion. On the other hand, the written evidence of Mr Callery and Ms Bianco, was more objective, was generally supported by contemporaneous notes[3] and was convincingly consistent. Further, I found that both Mr Callery and Mr Bianco made concessions on other matters even where they were not obvious or necessarily helpful to the Tavern's case.
[16] I do note that Mr Callery conflated some limited elements of an earlier discussion between himself and Mrs Shears however this does not detract from the overall credibility of that written evidence. I did however find that elements of Mr Callery's oral evidence about the 9 September discussion involved a change in emphasis. That is, the result of the conversation being that there would be a later discussion with a view to potentially putting Mrs Shears back on the roster became a planned discussion as to what hours were to be worked. That latter element was less convincing and not consistent with the tone and written record of the discussion or the stated intention for the same.
[17] Mrs Shears commenced employment with the Tavern on a casual basis on 5 February 2017. She was employed to work in both the gaming and dining areas, with the original emphasis being in the gaming room. This resulted in Mrs Shears sometimes being classified as a Level 3 Food and Beverage Attendant and at other times a Level 2 Food and Beverage Attendant under the Registered and Licenced Clubs Award 2010, depending on which area she was rostered to work for that shift.
[18] Mrs Shears was regularly rostered to work between four and five shifts per week.[4] It is accepted by both parties that from early July 2017, the applicant ceased being rostered in the gaming area and worked almost exclusively in the dining bistro. There is a dispute between the parties about why this occurred and to what extent this was communicated to Mrs Shears. However, this is not something that the Commission ultimately needs to determine.
[19] Based upon the material that is before the Commission, Mrs Shears averaged somewhere between 19 and 21 hours per week during her employment. This generally involved working shifts on four weeknights and on weekends. There was a roster set by management, based upon an availability form completed by the staff and operational requirements, which projected the hours for upcoming weeks. Mrs Shears, and other employees, received a text message in advance of each roster setting out the days and hours for the week ahead. If an employee could not work the rostered hours or wanted a change of shifts, a leave form was to be completed. In the case of an absence due to illness or related circumstances after the roster was set, employees were required to advise management.
[20] In April 2017, Mrs Shears was cautioned by Mr Callery about the need to change her customer service and procedures in the gaming room. In June 2017, Mrs Shears was advised to always check the coin weigher machine after an incident occurred. This involved the machine being operated on the incorrect setting after it was not changed by another employee and not checked by Mrs Shears. Neither of these two events involved the issuing of a formal warning. However, I note that in due course Mrs Shears was not generally rostered to work in the gaming room and was rostered, except for a few hours, in the bistro area of the Tavern. Mrs Shears considered that this was an unfair sanction. This was done, on the Tavern's view, as a result of some customer complaints and because Mrs Shears was stronger in the Bistro work.
[21] During the period of employment, Mrs Shears also operated a hairdressing business which did not generally impact upon the range of shifts undertaken by the applicant for the Tavern. That other business did, however, mean that Mrs Shears was not generally available to work during the day on weekdays.
[22] During the period between her employment commencing in February 2017 and the events of early September 2017, Mrs Shears was absent from work on a day that would otherwise have been a rostered shift, for something in the order of 17 days. The overwhelming majority of those absences was in the form of unpaid personal leave (in effect, unpaid personal sickness or carer's leave) covered by a medical certificate.
[23] Mrs Shears was being paid an hourly rate of $29.87 in early September 2017.
4.2 The 9 September 2017 telephone call from Mr Callery to Mrs Shears
[24] Mrs Shears was absent from the workplace under a medical certificate between 7 and 10 September 2017. The Tavern was aware of the absence and that Mrs Shears was experiencing significant physical symptoms of an apparent illness. The Tavern was concerned about the impact of this illness given Mrs Shears' role, which included food handling. Management determined to seek a medical clearance rather than just the absence of a "sick certificate".[5] I would add that this was appropriate given all of the particular circumstances operating at that time.
[25] I note that on 4 September 2017, there was also an earlier discussion between Mrs Shears and Mr Callery during which the applicant advised that for a number of personal family reasons (which were disclosed), she would prefer to reduce the number of rostered days. Mr Callery indicated that this could be done however the evidence does not confirm whether any action to give effect to that outcome was taken by either party at that point.
[26] Mrs Shears contends that on 9 September 2017, and while she was away ill from the workplace, she received a text message from the Tavern's Assistant Manager (AM) and the following exchange occurred:
AM: "Hey Corina, hope you are feeling better. Can I please get your doctor's clearance and we have your shifts covered for next week.
CS: For next week? I should be better for next week. I'm confused. Not really. My medication is working like it's meant to and its cancelling them all out. Can't even keep food down. Can't keep anything down."
CS: [attaching medical certificates] The doctor even wrote on there what is wrong as well because I didn't want people to think I was lying. He's only given me the weekend. Why have you cancelled my other shifts for?"
[27] The evidence confirms that this exchange took place.
[28] Mrs Shears did not receive a text message response but was telephoned shortly after by Mr Callery. Her evidence regarding that telephone discussion was that:
"He rang me to advise me he was letting me go due to always being sick and or my child being sick.
I mentioned to him whenever I was unable to work I always supplied a doctors certificate.
He said we are a small team and I am being a liability.
I made him aware this was unfair dismissal and I was on sick leave and had supplied doctors notes.
Josh never once stated that my job was still active and to supply him with a doctors clearance to return."[6]
[29] Mr Callery's written version of the context and content of the discussion was as follows:
"Over the last week Corina has been calling in sick, this issue has happened numerous times while Corina has worked at the Angle Vale Tavern. Today at 3.12 pm for 4 minutes and 7 seconds I made a phone call to Corina to discuss what has been happening with her health. She told me about her personal life including (... ...).[7] She asked to have her shifts reduced to a couple of days due to trying to work out their relationship situation. I asked her if she was ok. She said she wants to work out and cut back her work load. I said that is fine. I also explained to Corina we have been getting complaints from customers about her attitude and manner towards the patrons so it was best for all involved that she resolve her personal issues. The amount of time off she is having effecting the team. Corina has had a lot of sick days this week. Corina called in sick Thursday, Friday, Saturday and Sunday with gastro and tonsillitis. As the Venue Manager at the Angle Vale Tavern I felt I had to make a decision that was best for both Corina's health, other team members and the customers. I replaced Corina for the two shifts she was rostered for next week. I let Corina know on the phone that there won't be any hours at the moment for her. She replied with your sacking me. I responded with no, I am not sacking you Corina, you need to take care of your health and yourself so there are no hours at the moment. She replied with thanks for sacking me. I explained she is not fired and that she needs to take care of her health and we are unable to give her any hours around her restricted availability due to her running her own business. I then said that if you would like to come in in after you are feeling better we can sit down, go over these issues of reliability and availability and performance with a view to putting her back in the roster. She said whatever thanks and hung up. ......"[8]
[30] Mr Callery described the purpose and outcome of the 9 September 2017 discussion in the following manner as part of his written notes of that meeting:
"Corina believes she is being fired for being sick. We replaced her on the roster and a duty manager asked her to supply a medical clearance due to her working with food and customers and her ongoing illnesses which was impacting on her performing her job.
Corina needs to take care of herself and have her health recover. I feel her reoccurring illness were effecting her ability to work and the health, safety and morale of the team. Once Corina has recovered I asked her to come in so that we could discuss her availability and the possibility of putting her back on the roster. "[9]
[31] Ms Bianco's version of the 9 September 2017 conversation, based upon Mr Callery's statements which she heard, was as follows:
"Whilst working at the Ange Vale Tavern on Saturday 9th of September, I was informed that Corina Shears had called in sick several times that week. When the venue manager Josh Callery arrived at work we discussed Corina's health and it was decided that she should get a medical clearance from her doctor as we had received sickness certificates stating several illness including gastro over the past days and weeks. The decision was made to take Corina off of the roster for the week allowing Josh to cover her shifts and for her to rest and fully recover. Josh called Corina around 3.15pm and explained to her that she had been taken off the roster for the coming week to allow her to take time off for her health. Josh raised with that he had received complaints about her performance and in particular about the way she was speaking to customers. It was apparent that her repeated illness's (sic) were effecting her ability to perform her job. Josh stated that once Corina had recovered they could make a time to meet and discuss the complaints and putting her back on the roster. I heard Josh say several times "no you are not sacked" and he reiterated that she needs to rest in order to recover. At the end of the call Josh states that Corina had hung up on him."[10]
[32] For reasons outlined earlier, I prefer the version of the facts of this conversation as summarised by Mr Callery. I consider that the overall context and outcome as summarised in the written evidence of Mr Callery to be more accurate and complete than that of Mrs Shears or other later verbal evidence, including that of Mr Callery, about these events.
4.3 The subsequent contact between the parties or their representatives
[33] I note that shortly after the conversion between Mrs Shears and Mr Callery, Mr Callery was contacted by the applicant's father and during that conversation Mr Callery denied that Mrs Shears had been dismissed but otherwise declined to discuss the matter.
[34] On 11 September 2017, Mrs Shears spoke with Mr Cochrane and indicated her belief that she had been terminated. Mrs Shears also indicated that she would be contacting Fair Work unless she heard back from the Tavern. Mr Cochrane advised Mrs Shears that her view that there had been a dismissal could not be correct as all staffing matters had to be discussed with him prior to being implemented. Mrs Shears advised that she had gone above and beyond in her service for the Tavern including by working when she was violently ill and throwing up. Mr Cochrane advised that this should not be the case and after again confirming that Mrs Shears would not have been dismissed, advised that he would check with Mr Callery and confirm what the situation was.
[35] On 12 September 2017, following a discussion with Mr Callery, Mr Cochrane left a voice mail message on Mrs Shears' phone indicating that she had not been terminated and that she was still on the roster sheets. This application was lodged with the Commission earlier that day.
[36] Section 386 of the FW Act provides as follows:
(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.
(2) However, a person has not been dismissed if:
(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or
(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;
and the employment has terminated at the end of the training arrangement; or
(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and
(ii) he or she remains employed with the employer that effected the demotion.
(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person's employment, to avoid the employer's obligations under this Part."
[37] In Barkla v G4S Custodial Services Pty Ltd (Barkla) a Full Bench of the then Fair Work Australia considered when an employer's actions would amount to termination of the applicant's employment and made the following observations:
"[23] It is necessary in the first instance to consider the communications of the employer to the employee to determine whether any of these communications constitutes an express termination. We have reviewed the various communications including the email of 11:19 am 13 October 2010, relied on by Mr Barkla and we do not believe that any of those communications expressly terminate his employment. We reach that conclusion notwithstanding that some of the correspondence may have equated Mr Barkla's application for extended leave without pay as akin to a resignation, that the employer clearly brought the secondment to the "Supervisor Geraldton" position to an end and directed Mr Barkla to return to his permanent position of CSCS Officer based in Perth. In our view none of the correspondence expressly brought the entire employment to an end. This is clear from a review of the totality of the correspondence including the clear intention of the parties, as contained in the letter of appointment, as to what would occur after completion of the secondment and the employer's statements regarding Mr Barkla reverting to his employed position of CSCS Officer once the secondment was ended. We find that G4S consistently maintained that it was not terminating Mr Barkla's employment and that there is no express statement to the contrary.
[24] It is then necessary to consider whether any action of the employer amounted to termination of employment. It should be noted in this case that Mr Barkla did not resign from his employment. Rather he alleges that the employer's conduct amounted to dismissal. There is considerable law on whether a resignation is forced by conduct of the employer or that the employer's conduct amounts to a constructive dismissal either at common law or within the statutory definitions. In our view this law is helpful in the present context because it articulates the nature of employer conduct which will bring an employment contract to an end. This is what Mr Barkla has argued in this case. In O'Meara v Stanley Works Pty Ltd a Full Bench of the Australian Industrial Relations Commission discussed the relevant case law and outlined the legal considerations in the following terms:
[19] The circumstances in which a resignation, while apparently a termination of employment by the employee, nevertheless constitutes a termination at the initiative of the employer, have been considered in a number of cases. A prominent authority is the decision of a Full Court of the Federal Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd (Mohazab). In that case, the employer made a threat that unless the employee resigned the employer would ask the police to charge the employee with an offence. The analysis of the concept of termination at the initiative of the employer by the Court in that case has not always been quoted in full. It is desirable that we do so in this case. After referring to dictionary definitions of the term 'initiative' and the convention giving rise to the statutory provisions, the Full Court said:
'These definitions reflect the ordinary meaning of the word "initiative". Viewed as a whole, the Convention is plainly intended to protect workers from termination by the employer unless there is a valid reason for termination. It addresses the termination of the employment relationship by the employer. It accords with the purpose of the Convention to treat the expression "termination at the initiative of the employer" as a reference to a termination that is brought about by an employer and which is not agreed to by the employee. Consistent with the ordinary meaning of the expression in the Convention, a termination of employment at the initiative of the employer may be treated as a termination in which the action of the employer is the principal contributing factor which leads to the termination of the employment relationship. We proceed on the basis that the termination of the employment relationship is what is comprehended by the expression "termination of employment": Siagian v Sanel [1994] IRCA 2; (1994) 1 IRCR 1 at 19; 54 IR 185 at 201. In many, if not most, situations the act of the employer that terminates the employment relationship is not only the act that puts in train the process leading to its termination but is, in substance, the entire process. An example would be a situation where the employer decided to dismiss an employee and did so orally or in writing with immediate effect. Other situations may be more complex as exemplified by the circumstances considered by Moore J in Grout v Gunnedah Shire Council (1994) 1 IRCR 143; 57 IR 243 where an employee had given written notice purporting to terminate the employment relationship. The notice was not reasonable but was accepted by the employer which later refused to allow the employee to withdraw the notice. A question arose as to whether that was a termination of the employment at the initiative of the employer and his Honour held it was. His Honour said at 160-161; 259:
"'I have already said that Div 3 concerns termination at the initiative of the employer. The respondent submits that "initiate" means "to begin, commence, enter upon; to introduce, set going, or initiate": see Shorter Oxford English Dictionary. In this matter, it is submitted, it was the applicant and not the respondent that initiated the termination by writing the letter of 18 May. This, in my opinion, gives the expression "termination" in the Act, read in conjunction with Art 3 of the Convention which speaks of "termination ... at the initiative of the employer", a narrow meaning that was not intended. A principal purpose, if not the sole purpose, of Div 3 is to provide an employee with a right to seek a remedy in circumstances where the employee did not voluntarily leave the employment. An employee may do some act which is the first in a chain of events that leads to termination. An example would be an employee who engaged in misconduct at work which ultimately led to the employer dismissing the employee. However, that situation and the present are not situations where the termination was at the initiative of the employee. In both instances the step or steps that effectively terminated the employment or purported to do so were taken by the employer.'
'In these proceedings it is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer but plainly an important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship. This issue was addressed by Wilcox CJ in APESMA v David Graphics Pty Ltd (unreported, Industrial Relations Court of Australia, 12 July 1995, Wilcox CJ). His Honour, at p 3, referred to the situation of an employee who resigned because "he felt he had no other option". His Honour described those circumstances as:
"'...a termination of employment at the instance [of] the employer rather than of the employee.'
"'I agree with the proposition that termination may involve more than one action. But I think it is necessary to ask oneself what was the critical action, or what were the critical actions, that constituted a termination of the employment.'
"[20] Moore J, one of the members of the Full Court in Mohazab, addressed the question further in Rheinberger v Huxley Marketing Pty Limited (Rheinberger). His Honour said, after referring to extracts from Mohazab:
'However it is plain from these passages that it is not sufficient to demonstrate that the employee did not voluntarily leave his or her employment to establish that there had been a termination of the employment at the initiative of the employer. Such a termination must result from some action on the part of the employer intended to bring the employment to an end and perhaps action which would, on any reasonable view, probably have that effect. I leave open the question of whether a termination of employment at the initiative of the employer requires the employer to intend by its action that the employment will conclude. I am prepared to assume, for present purposes, that there can be a termination at the initiative of the employer if the cessation of the employment relationship is the probable result of the employer's conduct.
"[21] In this Commission the concepts have been addressed on numerous occasions and by a number of Full Benches. In Pawel v Advanced Precast Pty Ltd (Pawel) a Full Bench said:
'[13] It is plain that the Full Court in Mohazab considered that an important feature in the question of whether termination is at the initiative of the employer is whether the act of an employer results directly or consequentially in the termination of the employment and that the employment relationship is not voluntarily left by the employee. However, it is to be noted that the Full Court described it as an important feature. It plainly cannot be the only feature. An example will serve to illustrate this point. Suppose an employee wants a pay rise and makes such a request of his or her employer. If the employer declines and the employee, feeling dissatisfied resigns, can the resignation be said to be a termination at the initiative of the employer? We do not think it can and yet it can be said that the act of the employer i.e. refusing the pay rise, has at least consequentially resulted in the termination of the employment. This situation may be contrasted with the position where an employee is told to resign or he or she will be terminated. We think that all of the circumstances and not only the act of the employer must be examined. These in our view, will include the circumstances giving rise to the termination, the seriousness of the issues involved and the respective conduct of the employer and the employee. In the instant case the uncontested factual findings are that the applicant had for almost the whole of his employment performed welding duties; that there was no objective threat to his health and safety involved in the requirement that he undertake welding duties so long as it was not on a continuous basis and that the welding he was required to do was not continuous.
"[22] In the Full Bench decision of ABB Engineering Construction Pty Ltd v Doumit (ABB Engineering) it was said:
'Often it will only be a narrow line that distinguishes conduct that leaves an employee no real choice but to resign employment, from conduct that cannot be held to cause a resultant resignation to be a termination at the initiative of the employer. But narrow though it be, it is important that that line be closely drawn and rigorously observed. Otherwise, the remedy against unfair termination of employment at the initiative of the employer may be too readily invoked in circumstances where it is the discretion of a resigning employee, rather than that of the employer, that gives rise to the termination. The remedies provided in the Act are directed to the provision of remedies against unlawful termination of employment. Where it is the immediate action of the employee that causes the employment relationship to cease, it is necessary to ensure that the employer's conduct, said to have been the principal contributing factor in the resultant termination of employment, is weighed objectively. The employer's conduct may be shown to be a sufficiently operative factor in the resignation for it to be tantamount to a reason for dismissal. In such circumstances, a resignation may fairly readily be conceived to be a termination at the initiative of the employer. The validity of any associated reason for the termination by resignation is tested. Where the conduct of the employer is ambiguous, and the bearing it has on the decision to resign is based largely on the perceptions and subjective response of the employee made unilaterally, considerable caution should be exercised in treating the resignation as other than voluntary.
"[23] In our view the full statement of reasons in Mohazab which we have set out together with the further explanation by Moore J in Rheinberger and the decisions of Full Benches of this Commission in Pawel and ABB Engineering require that there to be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. It is not simply a question of whether 'the act of the employer [resulted] directly or consequentially in the termination of the employment.' Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution as they may not give full weight to the decision in Mohazab. In determining whether a termination was at the initiative of the employer an objective analysis of the employer's conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign."[11]
[38] Accordingly, the general legal principles to be applied in this case are well settled. Stated succinctly and without attempting to be definitive, they include:
a termination at the initiative of the employer involves the action of the employer as the principal constituting factor leading to the termination;
the employer must have engaged in some action that intended to bring the employment relationship to an end or had that probable result;
[39] Although dealing with the issue of continuous service for a casual employee, the circumstances in which such service might be considered to have ended has been helpfully summarised in Shortland v Smiths Snackfood Co Ltd.[12]
6. Was Mrs Shears dismissed within the meaning of the FW Act?
[40] This involves two related issues. Firstly, what was the effect of the conversation on 9 September 2017 when objectively considered in context? Secondly, depending upon that conclusion, did the actions of Mr Callery lead to an effective dismissal given his role within the Tavern?
[41] The conversation on 9 September 2017 must be considered objectively and in context. When considered in that way the following elements emerge:
Mrs Shears was originally allocated to work shifts in the following week, consistent with the pattern of regular and consistent engagements to that point, which would have been after the period covered by the existing medical certificate;
Those shifts had been removed from Mrs Shears with an indication that a medical clearance to work was required;
Mrs Shears was further advised that she had been replaced for the two shifts she was rostered for in the next week and that there won't be any hours at the moment for her; and
In response to the suggestion that she had been sacked, Mrs Shears was advised that she was not fired but that she needed to take care of her health and the Tavern was unable to give her any hours around her restricted availability due to her running her own business. Further, she was advised that if she would like to come in after she was feeling better (with a medical clearance) the parties could sit down, go over the issues of reliability and availability and performance with a view to putting Mrs Shears back on the roster.
[42] When considered as a whole and in context, the summary as provided by Mr Callery accurately reflects the outcome of that discussion. That is, despite being informed that she was not being sacked (or fired), Mrs Shears was invited to come in, when she was better and with a medical clearance, so that Mr Callery and the applicant could discuss her reliability and availability and performance and the possibility of putting her back on the roster.
[43] In all of the circumstances, that discussion objectively meant that there were no scheduled future hours on the roster and there was no reliable indication that there would be such work made available to Mrs Shears; only the promise of a discussion and a possibility of future work. That is, the provision of the medical clearance, which was itself reasonable, was not the only precondition to a return to rostered work. Rather, there was also going to be a decision made by management about whether there was to be any future employment having regard to reliability, availability and performance concerns. In the context of the very regular and systematic casual engagements to that point - including where Mrs Shears had to apply for "leave", provide medical certificates and advise of changes in availability, this communication was a direct indication of the cessation of that employment and I find that it had that result.[13] This is so, despite the contrary statement made at the time and Mr Callery's apparent subjective intention.
[44] Given that finding I have considered the second issue identified above.
[45] Mr Callery and Ms Bianco indicated in evidence that all "hiring and firing" decisions had to be approved by Mr Cochrane. Mrs Shears testified that she understood that Mr Callery had that authority but accepted that she was not aware whether previous decisions concerning such matters had been discussed with Mr Cochrane before being implemented by the relevant management staff. Mr Cochrane was not available to give evidence and accordingly this could not be put to him.
[46] The Tavern accepted that there was no formal advice provided to staff about this issue but contended that everyone at the venue would know about Mr Cochrane's role.
[47] I am satisfied that Mr Callery had actual or at least ostensible authority to remove Mrs Shears from the previously rostered shifts and to make the decision not to provide future shifts in the manner that I have found.[14] Further, given the conduct of the relevant discussion and the absence of any formal policy or statement conditioning Mr Callery's capacity to make such decisions, the actions of the Venue Manager would reasonably be taken by Mrs Shears to represent the actions of the Tavern.
[48] Accordingly, given the particular nature and practice of the employment evident here and the objective impact of the discussion on 9 September 2017, I am on balance satisfied that Mrs Shears was dismissed within the meaning of the FW Act as a result of that discussion.
[49] Given the above findings, I need to consider whether the dismissal of Mrs Shears was unfair.
[50] Section 385 of the FW Act provides as follows:
A person has been unfairly dismissed if the FWC is satisfied that:
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388."
[51] Subsections 385(c) and (d) are not relevant here.
[52] Section 387 of the FW Act provides as follows:
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person's capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant."
[53] It is clear that s.387 of the FW Act contemplates that an overall assessment as to the nature of the dismissal must be made by the Commission. In so doing, the FW Act sets out a number of considerations that must, where relevant, be weighed up in totality.
[54] It is convenient therefore to use the various provisions of s.387, with reference to the relevant circumstances, to outline my consideration of the matter.
Section 387(a) - whether there was a valid reason for the dismissal related to Mrs Shears' capacity or conduct (including its effect on the safety and welfare of other employees)
[55] Valid in this context is generally considered to be whether there was a sound, defensible or well-founded reason for the dismissal. Further, in considering whether a reason is valid, the requirement should be applied in the practical sphere of the relationship between an employer and an employee where each has rights, privileges, duties and obligations conferred and imposed on them. That is, the provisions must be applied in a practical, common sense way to ensure that the employer and employee are each treated fairly.[15]
[56] It is also clear from the authorities that the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts before the Commission. That is, it is not enough for an employer to rely upon its reasonable belief that the termination was for a valid reason.[16] Equally, facts justifying dismissal, which existed at the time of the termination, should be considered, even if the employer was unaware of those facts and did not rely on them at the time of dismissal.[17]
[57] There were legitimate concerns about Mrs Shears' reliability and work attendance, and her capacity to work in the environment of the bistro, at least in the short term. Certain performance issues had also been discussed with her during the employment by the Tavern. However, the Tavern had not subjectively intended to dismiss Mrs Shears, at least at that point, and in these proceedings did not claim a valid reason existed for that action.[18]
[58] Having considered all of the relevant circumstances based upon the findings of the Commission, whilst I accept that there were some legitimate concerns, I am not persuaded that there was a valid reason for dismissal.
Section 387(b) - whether Mrs Shears was notified of the reasons for dismissal
[59] This consideration requires the Commission to assess whether the applicant concerned was relevantly notified of the reasons leading to the dismissal before that decision was taken.[19]
[60] Given the sequence of events, although there was some discussion about the concerns held by the Tavern in the 9 September 2017 conversation, there was no notification of the reasons for dismissal as contemplated by this provision.
Section 387(d) - any unreasonable refusal by the respondent to allow Mrs Shears a support person
[61] There was no meeting to discuss any concerns held by the employer and no request for a support person arose. Accordingly, this consideration is not relevant.
Section 387(e) - if the dismissal is related to unsatisfactory performance by Mrs Shears - whether she has been warned about that unsatisfactory performance before the dismissal.
[62] This consideration relates to performance of the job. Performance in this context includes the employee's capacity to do the work, and the diligence and care taken with that work.[20]
[63] For reasons set out earlier, I do not consider that Mrs Shears was warned about her work performance in a manner contemplated by this consideration.
Section 387(f) - the degree to which the size of the respondent's enterprise would be likely to impact on the procedures followed in effecting the dismissal.
Section 387(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.
[64] I deal with these two considerations together.
[65] Despite not being a small business, the Tavern does not have dedicated human resource management specialists. Mr Cochrane is a consultant in the Club industry and may have such experience however this is not clear on the evidence. I accept that this circumstance would have impacted upon how the dismissal was handled.
[66] This is a factor to be taken into account and in assessing the overall fairness of the dismissal and I have made a meaningful allowance for the manner and procedures adopted by the employer.
Section 387(h) - other matters considered to be relevant
[67] Amongst other considerations, the Commission should consider the impact of the dismissal upon the applicant given all of the circumstances. This includes consideration as to whether the dismissal was harsh in the sense that it was disproportionate to any actual conduct found by the Commission[21] and I have considered this in reaching my final conclusions.
[68] As outlined earlier, the FW Act requires a global assessment having regard to the various relevant statutory considerations. In that context, procedural unfairness is an important consideration given the provisions of the FW Act but does not necessarily mean that the dismissal was unfair. This is reinforced by the objects relating to Part 3-2 Unfair Dismissal of the FW Act in s.381 which relevantly provides as follows:
(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."
[69] As revealed in various decisions of the Commission (and the Court), each case must be considered in its own circumstances and it is appropriate, amongst other factors, to have regard to whether the procedural deficiencies made any difference to the fairness of that outcome.[22]
[70] Even taking into account the circumstances of the employer, the absence of a genuine warning and opportunity to improve Mrs Shears' work performance and to make a response to the issues leading to what I have found to have been a dismissal was unreasonable and did impact upon the fairness of the dismissal. The immediate dismissal, without the provision of reasons and an opportunity to respond, was also unfair.
[71] In all of the circumstances, I am satisfied that the dismissal of Mrs Shears was harsh, unjust and unreasonable.
[72] Division 4 of Part 3-2 of the FW Act relevantly provides as follows:
390 When the FWC may order remedy for unfair dismissal
(1) Subject to subsection (3), the FWC may order a person's reinstatement, or the payment of compensation to a person, if:
(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) the FWC may make the order only if the person has made an application under section 394.
(3) the FWC must not order the payment of compensation to the person unless:
(a) the FWC is satisfied that reinstatement of the person is inappropriate; and
(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.
Note: Division 5 deals with procedural matters such as applications for remedies.
[73] The FW Act provides for compensation in the following terms.
(1) An order for the payment of compensation to a person must be an order that the person's employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.
(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.
(3) If the FWC is satisfied that misconduct of a person contributed to the employer's decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.
(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person's dismissal.
(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:
(a) the amount worked out under subsection (6); and
(b) half the amount of the high income threshold immediately before the dismissal.
(6) The amount is the total of the following amounts:
(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and
(b) if the employee was on leave without pay or without full pay while so employed during any part of that period - the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.
To avoid doubt, an order by the FWC under subsection 391(3) or 392(1) may permit the employer concerned to pay the amount required in instalments specified in the order."
[74] The prerequisites of ss.390(1) and (2) have been met in this case. Section 390 makes it clear that compensation is only to be awarded as a remedy where the Commission is satisfied that reinstatement is inappropriate and that compensation is appropriate in all the circumstances. Mrs Shears does not seek reinstatement and given all of the prevailing circumstances and my findings I accept that reinstatement would be inappropriate.
[75] As a result, I need to consider whether compensation is appropriate, and if so, to what extent.
[76] A Full Bench in McCulloch v Calvary Health Care Adelaide[23] (McCulloch) confirmed, in general terms, that the approach to the assessment of compensation as undertaken in cases such as Sprigg[24] remains appropriate in that regard.
[77] Section 392(2) of the FW Act requires me to take into account all of the circumstances of the case including the factors that are listed in paragraphs (a) to (g). Without detracting from the overall assessment required by the FW Act,[25] it is convenient to discuss the identified considerations under the various matters raised by each of the provisions.
Section 392(2)(a) - The effect of the order on the viability of the Tavern
[78] The Tavern did not seek to rely upon this consideration, at least in terms of the nature of the compensation remedy sought by Mrs Shears.
Section 392(2)(b) - The length of Mrs Shears' service with the Tavern
[79] Mrs Shears had just over 7 months service with the Tavern. This is not a long period of employment and is a factor to be taken into account in the assessment of the compensation.
Section 392(2)(c) - The remuneration Mrs Shears would have received, or would have been likely to receive, if she had not been dismissed
[80] This involves in part a consideration of the likely duration of Mrs Shears' employment in the absence of what I have found to be an unfair dismissal.
[81] The Full Bench in McCulloch also confirmed that when assessing likely lost remuneration, cogent evidence was required for any assumption that a short period of likely future employment would have occurred where the Commission had not found a valid reason for dismissal.[26]
[82] The Tavern did not contend that a valid reason for dismissal existed and the unfairness arose from this and an almost complete lack of procedural fairness. There were however some genuine concerns about work performance and the reliability of Mrs Shears' work attendance and the nature and length of the casual employment are factors that weigh against a long period of projected future employment. Further, there is no certainty that Mrs Shears would have immediately provided the required medical clearance in the absence of the dismissal and I consider that this factor should also be weighed into the period of projected paid employment.
[83] In all of the circumstances I consider that the employment relationship would have continued for a further period of up to ten weeks of paid employment.
[84] On the basis of the material provided to the Commission, Mrs Shears' average hours of employment at the time of dismissal was in the order of 21 hours per week. At the point of the termination, the parties had already agreed that there was to be a significant reduction in the number of shifts that would be worked. I consider that a figure of 14 hours per week, being a reduction of just under 40 per cent from the average figure is appropriate in all of the circumstances including the uncertainty about the applicant's availability at that time. Using that figure and the hourly rate of pay of $29.87 produces a lost remuneration figure of $4,182.
Section 392(2)(d) - The efforts of Mrs Shears to mitigate the loss suffered by her because of the dismissal.
[85] I have considerable reservations about the efforts made by Mrs Shears to mitigate her losses. She did not seek to obtain a medical clearance and follow up with the Tavern despite the indication that she should do so. This is of some significance given the circumstances of this case. Further, I do not accept her reasons for not doing so. In addition, she made no application for alternative work and despite some apparent indication from Mr Cochrane that he might look for other opportunities for her within the Club industry, Mrs Shears took no initiative of her own.
[86] A discount of 40 per cent on the amount of compensation otherwise determined is appropriate as a result of this consideration.
Section 392(2)(e) - The amount of any remuneration earned by Mrs Shears from employment or other work during the period between the dismissal and the making of the order for compensation
Section 392(2)(f) - The amount of any income reasonably likely to be so earned by Mrs Shears during the period between the making of the order for compensation and the actual compensation
[87] Despite increasing her involvement with her own hairdressing business, this has apparently not produced any additional employment related income since her dismissal. Mrs Shears was not in any alternative employment at the time of the hearing of this matter.
Section 392(2)(g) - Any other matter that the FWC considers relevant and the remaining statutory parameters
[88] There is no demonstrated misconduct that is appropriate to take into account as provided by s.392(3) of the FW Act.
[89] In accordance with s.392(4) of the FW Act, I make no allowance for any shock, distress or humiliation that may have been caused by the dismissal.
[90] As all of the projected period of employment, and the compensation contemplating losses in that context, has already occurred, I have made no specific allowance for future contingencies.
[91] The amount of compensation that I have determined is far less than the maximum prescribed by s.392(5) of the FW Act as applied in this matter.[27]
[92] The figures used for the calculation are expressed in gross terms and appropriate taxation is to be deducted from the final amount of compensation.
[93] The compensation amount confirmed below is also appropriate having regard to all of the particular circumstances of this matter and the Commission's statutory charter to ensure that a "fair go all round" is accorded to both the employer and employee concerned. [28]
[94] After taking into account each of the relevant considerations, I find that compensation in lieu of reinstatement is appropriate in this matter. Further, I find that the compensation should be assessed and paid having regard to the factors outlined above.
[95] That compensation is to be $2,509.
[96] I find on balance that Mrs Shears was dismissed and that such dismissal was unfair within the meaning of the FW Act.
[97] I have found that compensation is appropriate and the amount determined above is also appropriate in all of the circumstances.
[98] The payment of the compensation amount, less any required deduction of taxation, is to be made to Mrs Shears by the Playford City Soccer and Community Club Inc within 14 days of this decision. An order[29] is being issued in conjunction with this decision.
C Shears, the applicant in person, with M Kohlhagen.
J Callery and K Bianco for Playford City Soccer and Community Club Inc T/A Angle Vale Tavern.
[1] The Angle Vale Tavern is not a small business within the meaning of the FW Act. The Tavern accepted that Mrs Shears' service had been regular and systematic.
[4] Roster provided by the respondent for period 29 May 2017 to 10 September 2017 - Exhibit R7.
[6] Statement of Mrs Shears - Exhibit A2.
[7] Details removed for privacy reasons - not relevant to the case.
[8] Statement of Mr Callery - Exhibit R2.
[10] Statement of Ms Bianco - Exhibit R3.
[11] Barkla v G4S Custodial Services Pty Ltd (2011) 212 IR 248.
[13] See also Nasarenko v Natural Remedies Group Pty Ltd [2012] FWA 10698.
[15] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 as cited in Potter v WorkCover Corporation, (2004) 133 IR 458 per Ross VP, Williams SDP, Foggo C and endorsed by the Full Bench in Industrial Automation Group Pty Ltd T/A Industrial Automation [2010] FWAFB 8868, 2 December 2010 per Kaufman SDP, Richards SDP and Hampton C at par [36].
[16] See Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1; King v Freshmore (Vic) Pty Ltd AIRCFB Print S4213 per Ross VP, Williams SDP, Hingley C, 17 March 2000; Edwards v Giudice [1999] FCA 1836; (1999) 94 FCR 561; Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport AIRCFB Print S5897 per Ross VP, Acton SDP and Cribb C, 11 May 2000 and Rode v Burwood Mitsubishi AIRCFB Print R4471 per Ross VP, Polites SDP, Foggo C, 11 May 1999.
[17] Shepherd v Felt & Textiles of Australia Ltd [1931] HCA 21; (1931) 45 CLR 359, 373, 377‒378; Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1, 14. See also Dundovich v P & O Ports AIRC PR923358 8 October 2002, per Ross VP, Hamilton DP, Eames C at [79]; Lane v Arrowcrest (1990) 27 FCR 427, 456; cited with approval in Byrne & Frew v Australian Airlines Ltd (1995) 185 CLR 410, 467 and 468.
[19] See Trimatic Management Services Pty Ltd v Daniel Bowley [2013] FWCFB 5160.
[20] See Anetta v Ansett Australia Ltd (2000) 98 IR 233.
[21] Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1.
[22] See Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport AIRCFB Print S5897 per Ross VP, Acton SDP and Cribb C, 11 May 2000 and Villani v Holcim (Australia) Pty Ltd [2011] FCAFC 155 as examples.
[24] Sprigg v Paul's Licensed Festival Supermarket (1998) 88 IR 21. See also Bowden v Ottrey Homes Cobram and District Retirement Villages Inc T/A Ottrey Lodge [2013] FWCFB 431.
[25] Smith and Others v Moore Paragon Australia Ltd [2004] AIRC 57; (2004) 130 IR 446.
[27] The maximum compensation limit in this case would be the lesser of 26 weeks remuneration or $71,000.
[28] Section 381(2) of the FW Act. See also Smith and Others v Moore Paragon Australia Ltd [2004] AIRC 57; (2004) 130 IR 446 at par [32].
Printed by authority of the Commonwealth Government Printer
Corina Shears
Playford City Soccer and Community Club Inc T/A Angle Vale Tavern [2017] FWC 6267
(2011) 212 IR 248
(1995) 62 IR 371
(2004) 133 IR 458
(1998) 84 IR 1
(1999) 94 FCR 561
(1931) 45 CLR 359
(1990) 27 FCR 427
(1995) 185 CLR 410
(2000) 98 IR 233
(1998) 88 IR 21
(2004) 130 IR 446