Natasha Stephenson -v- M.J Edwards t/as M.J Edwards & J.Pendarvis

Document Type: Decision

Matter Number: U 27/2020

Matter Description: Unfair dismissal application

Industry: Veterinary

Jurisdiction: Single Commissioner

Member/Magistrate name: Commissioner T B Walkington

Delivery Date: 26 Aug 2021

Result: Application upheld

Citation: 2021 WAIRC 00479

WAIG Reference:

DOCX | 59kB
2021 WAIRC 00479
UNFAIR DISMISSAL APPLICATION
WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2021 WAIRC 00479

CORAM
: COMMISSIONER T B WALKINGTON

HEARD
:
THURSDAY, 17 DECEMBER 2020

DELIVERED : THURSDAY, 26 AUGUST 2021

FILE NO. : U 27 OF 2020

BETWEEN
:
NATASHA STEPHENSON
Applicant

AND

M.J EDWARDS T/AS M.J EDWARDS & J.PENDARVIS
Respondent

CatchWords : Industrial Law - Termination of employment - Unfair dismissal - Compensation - Injury - Adjournment refused
Legislation : Industrial Relations Act 1979 (WA)
Result : Application upheld
REPRESENTATION:

APPLICANT : MS E CREEK (OF COUNSEL)
RESPONDENT : NO APPEARANCE

Case(s) referred to in reasons:
James A Capewell v Cadbury Schweppes Australia Ltd (1998) 78 WAIG 299
Glenn Ross McLeod v Stock Rd Market Tavern [2005] WAIRC 00963; (2005) 85 WAIG 1569
Nicholas Richard Lynam v Lataga Pty Ltd (2001) 81 WAIG 986
Myers v Myers [1969] WAR 19
Ramsay Bogunovich v Bayside Western Australia Pty Ltd (1998) 79 WAIG 8
The Registrar of the Western Australian Industrial Relations Commission v Liquor, Hospitality and Miscellaneous Union, Western Australian Branch (2007) 87 WAIG 126
The Undercliffe Nursing Home v The Federated Miscellaneous Workers’ Union of Australia, Hospital, Service and Miscellaneous, WA Branch (1985) 65 WAIG 385.
Reasons for Decision
1 The applicant submits that she was unfairly dismissed by the respondent. The respondent had no valid reason for the dismissal, failed to afford the applicant procedural fairness and dismissed the applicant in circumstances that were harsh, oppressive or unfair. The applicant seeks relief from the Western Australian Industrial Relations Commission (Commission) in the form of compensation pursuant to s 23A of the Industrial Relations Act 1979 (WA) (IR Act).
Procedural Background
2 The hearing for this matter was set down for 17 December 2020. Following consideration of the submissions of the parties the hearing proceeded. The reasons for not adjourning and conducting the hearing in the absence of the respondent are set out as follows.
3 On 28 February 2020 the applicant applied to the Commission pursuant to s 29(1)(b)(i) of the IR Act, for relief alleging that she had been unfairly dismissed and sought compensation. In accordance with the legislation and regulations the employer was served with the application and notified should they wish to respond; their response was due on 21 March 2020.
4 Mr Edwards did not file a response within the required time frame and was granted an extension until 17 April 2020. The respondent’s response was received on 2 June 2020, the day of the conciliation conference. The section concerning the reasons for dismissing the applicant was not completed.
5 Conciliation did not result in an agreement to settle and the applicant requested the matter be heard and determined.
6 On 14 July 2020 notices of hearing were sent to parties for a directions hearing on 26 August 2020.
7 On 25 August 2020 Mr Edwards filed and served an amendment to his response in which he set out the reasons for dismissing the applicant.
8 On 26 August 2020 following a direction hearing, directions were issued. The orders included a direction for parties to file and serve an outline of their submissions seven days before the hearing.
9 On 11 September 2020 the parties were notified of the date of the hearing, 25 November 2020 and were advised that their outlines of submission and list of authorities were to be filed and served by 18 November 2020.
10 On 18 November 2020, Mr Edwards advised that he was working on a reply to the applicant’s outline of submissions.
11 On 24 November 2020, one day before the scheduled hearing, Mr Edwards sought an adjournment of the respondent seeking a hearing adjournment due to staffing issues and work commitments. Mr Edwards had not yet filed and served his outline of submissions. The applicant agreed to an adjournment subject to Mr Edwards filing and serving his outline of submissions by 27 November 2020 and that the hearing be relisted before 24 December 2020.
12 On 24 November 2020, Mr Edwards was advised that an adjournment had been granted and the hearing would be scheduled for 23 December 2020 and an extension to file and serve his outline of submissions was granted until 27 November 2020.
13 Mr Edwards advised that 23 December 2020 was not suitable. The parties were notified that the hearing scheduled for 25 November 2020 was vacated and that the hearing was scheduled for 10 December 2020 in accordance with their availability.
14 On 25 November 2020, notices of hearing for 10 December 2020 were sent by email to the parties.
15 On 1 December 2020, the applicant advised that the respondent had not complied with the direction to file his outline of submissions by 27 November 2020. The applicant requested that Mr Edwards advise the Commission when he intends to file outline of submissions in order to avoid further delays in proceedings and to ensure that the applicant has adequate opportunity to consider the respondent’s outline of submissions and prepare for the rescheduled hearing listed for 10 December 2020.
16 On 7 December 2020 Mr Edwards requested the hearing listed for 10 December 2020 be adjourned. The respondent advised that he was not able to staff the kennel as a result of illness of staff during most of November, continuing health issues for one member of staff, dogs requiring medication and intensive nursing, supervision and care of five 10 week old puppies. The Respondent advised that it expected to be able to file an outline of submissions by 14 December 2020. The applicant opposed the respondent’s request for adjournment:
(a) The applicant has already consented and accommodated the respondent’s request to reschedule the hearing;
(b) The respondent has had adequate opportunity and notice to make necessary arrangements at the Mageela Cottage & Boarding Kennel;
(c) The hearing was rescheduled to 10 December 2020 to align with respondent’s availability and his reasons requesting adjournment were unsatisfactory.
17 On 8 December 2020, the request for adjournment was granted and the hearing was scheduled for 17 December 2020, in accordance with the parties’ availability.
18 Mr Edwards was notified that further requests for adjournment, unless consented by the other party, will need to be made with submissions and evidence in support of the request. The Commission drew Mr Edward’s attention to s 27(1)(c) of the IR Act, that provides power for the Commission to order any party to the matter to pay to another party costs and expenses and s 27(1)(d) of the IR Act that provides that the Commission may proceed to hear and determine the matter or any part of thereof in the absence of any party thereto who has been duly summoned to appear or duly served with the notice of the proceedings.
19 On 9 December 2020, notices of hearing were sent to parties for a hearing listed for 17 December 2020.
20 On 10 December 2020 the applicant advised that the respondent had failed to file its outline of submissions in accordance with the Commission’s directions and requested that a further direction be issued that provided an extension to the respondent to file and serve its outline of submissions by 14 December 2020.
21 On 10 December 2020, directions that the respondent file and serve its outline of submissions by 14 December 2020 were issued.
22 On 15 December 2020, the respondent notified the Commission that it’s representative would not be able to attend the hearing. The respondent advised that because of terminating the employment of an employee, it was short staffed and was not able to engage another employee and train them to enable it’s representative to attend the hearing along with one of the nominated witnesses who is also a kennel hand. The respondent submits that the termination of employment of an employee and requirement to find, employ and train another employee precluded the respondent’s attendance. The respondent submitted that he envisaged mid-January 2021 will be the earliest that he would be able to attend a hearing with the kennel hand witness. The respondent had not yet filed its outline of submissions due the previous day.
23 On the same day the applicant advised that she did not consent to the respondent’s request for an adjournment, submitted that the reasons set out are inadequate and are not supported by evidence and that she ought not be further denied the opportunity for the hearing to proceed and be determined. The applicant noted that the hearing was relisted to accommodate the respondent’s availability. The applicant expressed concern that the respondent continues to create delays and has failed to comply with the Commission’s directions to file the respondent’s outline of submissions. The applicant submits that the matter should proceed and be determined in the absence of the respondent in the event he does not attend.
24 On 15 December 2020, the Commission emailed the respondent noting that he had not filed and served an outline of submissions required by 14 December 2020 and that he had advised that he was not able to attend the hearing scheduled for 17 December 2020. He had not specifically requested an adjournment. The Commission noted that the applicant opposed the vacation of the scheduled hearing on 17 December 2021, expressed concern that the conduct of the respondent’s case is resulting in delays and that he has failed to comply with directions issued by the Commission. The respondent was notified that the Commission will make a determination on whether to proceed with the hearing scheduled for 17 December 2020 and that should the respondent wish to provide any further submissions or any evidence in support of reasons for the hearing to be vacated and scheduled to a date after mid-January 2021, he may do so before 9:00 am on 16 December 2020.
25 The applicant was invited to provide any further submissions concerning the proposed adjournment to the Commission by 4:00 pm on 16 December 2020.
26 The parties were advised that when determining the granting of an adjournment the Commission is guided by the principles set out in Myers v Myers [1969] WAR 19 and a copy of the reasons for decision was provided to the parties. The parties were also advised that in the event the Commission grants the respondent’s further request for an adjournment, the Commission may order that he pay costs to the applicant in relation to costs incurred because of the adjournment.
27 On 15 December 2020 the respondent submitted:
In short, quite simply I have a community expectation and a personal responsibility to attend to the care and welfare of my animals that ranks higher than individual needs of The Applicant, which is exactly the basis on why The Applicant was sacked anyway.
I repeat, I will be unavailable to attend any hearing until I am able find a suitable employee(s) to cover for my and my witness’ attendance to this matter. Any attempt to continue with this matter without my submission and attendance will surely lead to a miscarriage of justice.
My submission will go back to recorded events as far back as mid-2019, and a detailed timeline and factual description of these events will be presented to The Commission in due course. These events are taking a substantial amount of time to collate and present as I have very limited time, resources and funds at my disposal, at present.
The sacking of The Applicant has had an immediate and significantly measurable impact on my ability to earn an income along with my ability to “create” any “free” time for anything, let alone for matters such as this.
The claim The Applicant is making against me is substantial and is somewhat conveniently narrowed down to the time surrounding the event of the sacking.
I believe I should be afforded the opportunity to be given a “fair go” at these proceedings, after all I am unable control the unpredictable daily needs of my animals, and nor can I control the secretive, deliberate, and intentional refusal by employees to comply with lawful requests from their employer.
And later the same day the respondent further submitted:
I would like to draw your attention to The Applicant’s response and in particular item b “Respondent has had adequate opportunity and notice to make necessary arrangements at the kennel”.
It took almost 12 months to train The Applicant (mostly whilst my partner Joy was still alive) to be able to look after the kennel mostly unsupervised but still answerable to me for anything out of the trained/instructed, yet I am expected to be able to “find” someone else at the drop of a hat to fill in whilst I attend a Hearing, and with my partner no longer being alive?
The kennel has always been run on an “as instructed” basis and still does, never has it run on some repeatable generic format where each dog is merely “a number” to the employee, eg like a vet practice runs, that just leads to premature deaths of animals in my opinion, which I may go into more detail in my submission.
The Applicant knew she was almost irreplaceable by @ September 2019.
I had to give up my work to replace Applicant when I sacked her. E.g. the “You have cost me my income” comment when I sacked The Applicant.
Since my partner Joy died and The Applicant was sacked, I haven’t the funds nor resources available anymore to be able to train up kennel hands “ad lib”.
28 On 16 December 2020, the applicant made the following submissions:
1. An application for an adjournment is within the discretion of the Commission. Following the principles in Myers v Myers [1969] WAR 19, where the refusal of an adjournment would result in serious injustice to one party then an adjournment should be granted, unless this would mean a serious injustice to the other party.
2. In this matter, there is no evidence before the Commission that the Respondent would suffer a serious injustice if this adjournment is refused.  Rather, the Respondent’s submission is to the effect that he is too busy, having sacked the Applicant from employment in February 2020, to attend the Commission to respond to the consequences of that termination.  Yesterday the Respondent wrote to the Commission that “the care and welfare of my animals ranks higher than individual needs of The Applicant”, so that “I will be unavailable to attend any hearing until I am able find a suitable employee(s) to cover for my and my witness’ attendance to this matter”.
3. The Respondent has had multiple opportunities to appear in the matter, and on each occasion has sought an adjournment. This present adjournment request comes despite the hearing having already been adjourned for a second time, at the Respondent’s request, to this particular date.  Rather than being faced with any serous injustice, the Respondent has simply failed (again) to comply with the Commission's processes and Directions.   
4. The Respondent proposes that the matter be adjourned for an indeterminate period of time, until he is able to presumably recruit and train, a replacement for the Applicant.  This vague and constant delay is unacceptable.  There is no evidence before the Commission to suggest that the matter can ever be dealt with promptly, if there is a further adjournment.  The Applicant has grave concerns whether the Respondent will ever be available to attend any rescheduled hearing, given that Respondent has been unable to hire a new employee to replace the Applicant over the past 10 months. The Applicant has no confidence that the Respondent will be able to employ and train a suitable employee within the foreseeable future, and certainly not over the Christmas break so as to be ready in January 2021.
5. The Applicant submits that any prejudice to the Respondent in refusing the adjournment is outweighed by the serious injustice to the Applicant if the hearing is adjourned, for a third time and with no certainty that the Respondent will be able to attend at any relisted hearing date.
6. The Applicant, and the public, have a legitimate expectation of proceedings being managed expeditiously without unnecessary delay, and that matters which come before the Commission are to be dealt with promptly. That has not happened in this case, due to the constant delays requested by the Respondent. The Respondent has a history of failing to comply with the Commission’s Directions, on the basis of various purported inconveniences:
(a) From the outset, in the Respondent’s Form 2A - Employer Response to Unfair Dismissal Application filed on 2 June 2020, the Respondent failed to answer the specific question at 3.2 as to why he asserted that the dismissal was not harsh, oppressive or unfair or unfair. Instead he wrote “Sorry, didn’t have enough time to get to this”.
(b) The Addendum to Form 2A, filed on 25 August 2020 with an apology that the Applicant could not attend the Commission hearing on 26 August 2020, fails to respond to the Applicant’s specific allegations regarding her termination.
(c) On 26 August 2020, Commissioner Walkington issued Directions that both parties file and serve an Outline of Submissions and any List of Authorities upon which the party intends to rely upon at least seven days prior to the hearing listed on 25 November 2020.
(d) On 18 November 2020, the Applicant filed its Outline of Submissions and List of Authorities in compliance with the Directions. The Respondent notified the Commission on that same day that he was working on a reply to the Applicant’s Outline of Submissions. Despite that, none has been forthcoming.
(e) On 24 November 2020, the Respondent sought that the hearing listed on 25 November 2020 be adjourned due to a variety of reasons, including that there was a risk that the Respondent and one of the Respondent’s witnesses had been exposed to COVID-19. No evidence has ever been presented of such exposure. The Applicant confirmed that she was willing to consent to a short adjournment on the basis that the matter be relisted for a hearing before 24 December 2020, and that the Respondent file the Respondent’s Outline of Submissions by 27 November 2020. Such directions were made and the hearing was relisted to 10 December 2020.
(f) The Respondent failed to file his Outline of Submissions by 27 November 2020 in accordance with the Commission’s Directions.
(g) On 7 December 2020, the Respondent made a second request to adjourn the hearing listed on 10 December 2020 for numerous reasons, including that there would be an inadequate number of employees at the kennel.  The Applicant opposed the Respondent’s request for a further adjournment on the basis that the hearing had been rescheduled to a date to accommodate the Respondent’s availability, the Respondent had been given adequate opportunity and notice to make necessary arrangements at the kennel and the reasons set out by the Respondent were otherwise unsatisfactory.
(h) The Commission granted the Respondent’s request for an adjournment of the hearing to 17 December 2020. A Direction was issued that the Respondent file and serve an Outline of Submissions by close of business on 14 December 2020.
(i) The Respondent failed to file his Outline of Submissions by 14 December 2020 in compliance with the Directions.
(j) On 15 December 2020, the Respondent made a third request to adjourn the hearing listed on 17 December 2020 on the basis that Respondent was short staffed and unable to attend the hearing. 
7. The Respondent has now sought an adjournment on three separate occasions, each at the eleventh hour. On each occasion the Respondent failed to provide any evidence to support his reasons for seeking an adjournment. The Respondent continues to not comply with the Directions to file an Outline of Submissions and has provided no explanation for non-compliance.
8. The Applicant submits that there would be prejudice to her if another adjournment is granted.  The Applicant was dismissed from her employment on 3 February 2020. The Applicant has expended considerable time and effort in preparing her case, including rostering time off work for each hearing date, and is ready to proceed and give evidence at the hearing listed tomorrow. As set out in Glenn Ross McLeod v Stock Rd Market Tavern 2005 WAIRC 00963, matters before the Commission are to be dealt with promptly and evidence should be taken from witnesses as close as possible to the events which the application relates.
9. The reasons set out in the Respondent’s emails dated 15 December 2020 seeking a third adjournment request are wholly inadequate.  The Respondent’s submissions that he is unable to “control the unpredictable daily needs of my animals” or “control the secretive, deliberate, and intentional refusal by employees to comply with lawful requests from their employer” is not a proper basis to seek an adjournment.  It is manifestly unfair for an employee who has been dismissed to then be denied their right to the timely determination of their complaint, on the basis that the employer states that the employee’s dismissal itself makes it too hard for the employer to comply with the Commission’s directions. The Respondent’s position is that he cannot file an Outline of Submissions or attend at a hearing, because he sacked the Applicant and now, 10 months on, is short-staffed because of the termination.
10. The Respondent has been aware since the directions hearing on 26 August 2020 that he would be required to file an Outline of Submissions in these proceedings and attend a hearing to determine the matters set out in the application. Further, the Respondent has had numerous opportunities since these proceedings were commenced on 28 February 2020 to seek legal representation. The Applicant submits that there would be no injustice to the Respondent in circumstances where the Respondent’s conduct demonstrates a persistent failure to comply with the Commission’s Directions and an unwillingness to comply with Directions or engage with the Commission’s processes.
11. The Applicant submits that the matter should proceed to a hearing on 17 December 2020 and that the Commission should exercise its powers pursuant to section 27(1)(d) of the Industrial Relations Act 1979 (WA) to proceed to hear and determine the matter in the absence of the Respondent in the event he does not attend the hearing on that day.
29 On 16 December 2020, the parties were notified that the respondent’s request for a third adjournment had not been granted and the hearing listed for 17 December 2020 at 11:30 am would proceed.
30 The hearing proceeded for the reasons set out below.
31 On the evening of 16 December 2020, the respondent made further submissions:
First of all, I have never tried to hire an employee to replace The Applicant’s position. The Applicant and her position were made redundant when she was sacked, as were two other innocent employees of mine around about the same time, so that I was able to afford to give up work to come back and care for the animals in the manner that I had instructed The Applicant to do, which she failed to do. At the time I needed to cut wage costs by @ $125,000 per year to afford to give up work.
At the moment I am trying to replace one of the workers who works around me, The Applicant’s position no longer exists for any potential employee, and never has been since The Applicant was quite rightly sacked for negligence and Serious Misconduct
Tomorrow I will be working in the kennel from @ 6:30 to @ 10:00am, then I will be taking two dogs (Harley 10 and a half years old and Chilli 13 and a half years old) to the vet as they both have medical conditions that require attention and in the case of Harley, a possible operation may be required before the weekend. I make no apologies and have no regrets about placing the welfare of my animals in front of both the Commission and The Applicant, and I’ll tell you why.
• I had to give up a majority of my work to replace that bitch (The Applicant) at the kennel with myself because she would no longer follow instruction, because she thought she knew better about everything now that she had veterinary nurse training under her belt.
• Two other employees along with The Applicant had their employment terminated around the same time (January to April 2020) because of The Applicant’s misdemeanours.
• One of those three employees terminated was an innocent Tyreshop employee of mine who unfortunately had to go for me to be able to reduce my wages bill by a combined @ $125,000.00 to compensate for the wages I could no longer earn.
• Should the hearing proceed tomorrow without me there will be two more innocent employees lose their employment and livelihoods immediately as I will close the tyreshop I own as I will no longer have an interest in employing people anymore.
• Their combined wages amount to in excess of $100,000.00 of which I have had to subsidise some of this amount personally since COVID-19 affected business.
• The tyre shop, as well as the kennel, do not make any profit.
• I have deliberately held off signing a new lease for the tyreshop this year until I saw where this matter was headed, so fortunately I have no contractual building lease obligations tying me down to keep the tyreshop open.
The Commission is the one who is actually on notice here, as it has a decision to make and quite frankly I don’t care which way it goes.
• In my absence it can decide to award to The Applicant what it is seeking along with costs tomorrow, remembering this is an employee who was sacked for Serious Misconduct and unsatisfactory performance and a number of other breaches.
• Because I have lost my ability to work away, I will also have to sack my innocent honest working and compliant tyre shop employees because I’ll have to reduce costs to able to pay the amount awarded (if any) to The Applicant. They will both unfortunately lose their livelihoods. One of them has worked for me for almost 6 years, the other for about three years.
• I may also consider sacking or reducing my innocent and hard working kennel employees work hours because I can no longer work away to subsidise their wages.
• I can actually do the kennel by myself each day if I have to. It’s a long 15 hour day seven days a week, but if I have to save $200-$250 per day by sacking the kennel employees to save the money to pay to The Applicant I will do it. It’s no longer any skin off my nose who I pay the money to, it’s all just a cost to me, don’t care who gets it.
In summary and in short, there is a real chance four employees will lose all or a majority of their livelihoods should The Commission decide to proceed with this hearing tomorrow without me, I don’t care either way. I’ll still have my dogs, which if I’d kept The Applicant in my employ back in February 2020, I wouldn’t have as many alive today as I still do. I am very glad to hear The Applicant has chosen a different career path – it was the right thing to do and I support her move into a non animal care industry.
Attached is a copy of a bill for a dog that required further medical attention and veterinary intervention partially because The Applicant would not follow simple instruction to administer a $50.00 course of antibiotics as prescribed upon veterinary advice. Have a look at how much it ended up costing me and for two weeks the dog nearly died, but eventually Gucci pulled through and is still alive today.
Personally, I think it is a disgrace the way the WAIRC operates with minor disputes like this, lawyers should not be involved. I will make sure this matter gets reviewed by those who are in a position to make changes.
32 At the hearing the applicant advised she had considered the respondent’s further submissions and maintained her objection to a further adjournment. The hearing was not adjourned and proceeded in the absence of the respondent for the reasons set out below.
Principles
33 In Myers v Myers the Supreme Court considered the principles to be applied in determining whether to adjourn a hearing or not. Where a refusal of an adjournment would result in serious injustice to one party, an adjournment should be granted unless in turn this would mean serious injustice to the other party: Myers v Myers, 21. In considering whether to grant an adjournment of a hearing by the Commission, the exercise of discretion is to consider not only fairness and justice to the parties but, in an appropriate case, the public interest is to be considered. As Ritter AP in The Registrar of the Western Australian Industrial Relations Commission v Liquor, Hospitality and Miscellaneous Union, Western Australian Branch (2007) 87 WAIG 126 [45] - [46] observed, this is consistent with the principal object in s 6(c) of the IR Act and the exercise of the jurisdiction of the Commission set out in s 26(1)(c) of the IR Act
34 As set out in Glenn Ross McLeod v Stock Rd Market Tavern [2005] WAIRC 00963; (2005) 85 WAIG 1569, matters before the Commission are to be dealt with promptly and evidence should be taken from witnesses as close as possible to the events which the application relates.
35 During this matter the respondent has sought an adjournment for the notified hearing on three occasions because of reasons associated with staffing its business operations. The respondent submits that he is ‘unable to control the unpredictable daily needs of my animals, and nor can I control the secretive, deliberate, and intentional refusal by employees to comply with lawful requests from their employer’. The respondent attributes his inability to conduct his case to the nature of his business and the conduct of his employees. The respondent includes the termination of the applicant described as a ‘sacking’ by the respondent, as a contributing factor to his inability to prepare and conduct his case.
36 The respondent also contends that its representative was not able to attend hearings because it was short staffed because of its actions in either recruiting staff and/or terminating the employment of staff. The respondent has not submitted any evidence of the matters that preclude its representative from attending hearings. These are matters within the respondent’s control and its decisions are a matter for which they are responsible. The applicant ought not be denied her entitlement to an expeditious hearing because of the respondent’s choices concerning its business operations.
37 The respondent’s representative advised that he was not available to attend any hearing until he finds a suitable employee(s) to staff his business operations in his absence and the absence of his witness’ attendance. The respondent’s representative did not provide any certainty as to his availability in the future.
38 In relation to the respondent’s outline of submissions, the respondent’s representative advised that preparation of the outline of submissions were taking a substantial amount of time to collate, he had limited time and that he would present his submissions in due course. The representative did not provide an anticipated time frame. The respondent has not sought extensions to be able to file and serve its outline of submissions. The applicant has facilitated the opportunity for the respondent to file and serve its outline of submission outside of the time frame set down in directions.
39 The respondent submits that progression of this matter without his submission and the conduct of a hearing in his absence will be a miscarriage of justice. The respondent contends that he ought to be given a ‘fair go’ at these proceedings.
40 The respondent has not complied with directions concerning the submission of outlines of submissions and the scheduling of hearings. The directions have been issued following consideration of the parties’ submissions and subsequently varied to accommodate the respondent. The respondent has been provided with ample opportunity to submit its outline of submissions, however despite undertakings to do so has failed to do so within the set time frames. The respondent continues to assert that it is working on preparing an outline of submissions, however, cannot be certain when these will be submitted because their business operations have priority over this matter.
41 The respondent’s contentions that the termination of the applicant resulted in reduced staffing of its business operations and contributed to its inability to complete an outline of submissions. Its representative’s inability to attend a hearing, are matters for the respondent’s organisation of its business operations. The applicant’s employment was terminated in early February 2020 and the respondent is yet to appoint another employee to replace her. Despite earlier submissions concerning the need to replace the applicant before it was able to attend hearings and prepare its outline of submissions the respondent makes the contradictory assertion that it never intended to replace the applicant.
42 Given the respondent’s conduct and submissions in support of his request to extend the time frame to submit an outline of submissions in due course, I am unable to conclude that an extension of time to submit an outline of submissions would result in the respondent complying with an extended time frame. The applicant’s legitimate expectation that the case be progressed without unnecessary delay ought not be prejudiced because of the respondent’s decisions concerning its business operations.
43 The scheduling of hearings has taken into consideration the respondent’s availability on each occasion. Evidence should be taken from witnesses as close as possible to the events which the application relates.
44 The applicant has expended time and effort in preparing her case, including rostering time off work for each hearing date. The respondent notified of its representative’s inability to attend the hearing with little notice. As a result, the applicant has been required to make further arrangements in relation to work commitments and in preparation of her case.
45 I find the respondent’s submissions that its representative will not be in position to attend a hearing until it can find a suitable employee to cover his absence from the workplace and the contradictory submission that it has never intended to replace the applicant, are not credible. The respondent has not provided any evidence of efforts to address this alleged barrier. The respondent has also declined to appoint an alternate representative. I am not convinced that if the hearing was adjourned the respondent will address this barrier and enable the hearing to proceed. The respondent has been provided with ample opportunity to file and serve its outline of submissions and has not done so. I am not convinced that extending the time further would result in an outline of submissions being filed and served.
46 Considerable time has now elapsed in the matter to accommodate the respondent’s previous requests for adjournments of this hearing and it has become unfair to continue to deny the applicant a determination in these proceedings. I find that any prejudice to the respondent is outweighed by the prejudice to the applicant.
47 For these reasons, an adjournment was not granted, and the hearing proceeded in the absence of the respondent’s representative.
Was the Applicant Unfairly Dismissed?
48 On 27 June 2018, the applicant commenced employment at Mageela Cottage & Boarding Kennel (Kennel) in the role of kennel hand. The applicant’s position is a Level 2 position covered by the Animal Welfare Industry Award, and she was responsible for feeding, cleaning and caring for the dogs at the Kennel. The applicant is a qualified veterinary nurse with a Certificate IV in Veterinary Nursing from Applied Vocational Training.
49 Initially the applicant worked for an average of 25 to 30 hours per week and from September 2019 this increased to 38.56 hours per week. Rosters were planned in advance.
50 On 1 February 2020, the applicant identified that there had been a shortfall between the gross and net pay for the pay period 18 January 2020 to 24 January 2020. The applicant was not provided with payslips by the respondent throughout her employment. The applicant sent a text message to the respondent and an exchange about the payment and calculation of the applicant’s wages ensued by text message. In response the respondent informed the applicant that deductions had been made from her pay to cover bathroom, food, drink and phone usage breaks.
51 The applicant gave evidence that on 3 February 2020 at approximately 7:00 am, Mr Edwards, the proprietor of the Kennel, approached the applicant and stated that ‘It’s time for you to go Nat’. In response to the applicant’s question about his statement, Mr Edwards further stated ‘I don’t like your attitude’, ‘You are costing me income’ and ‘I don’t like your attitude and you are hard to be around. You're a good worker and your work was fine but it’s time for you to leave’. Mr Edwards then required the applicant to return her key to the Kennel and locked the door immediately after the applicant exited the room.
Question to Decide
52 I must decide whether the applicant’s dismissal, when viewed objectively, was harsh, oppressive or unfair.
Principles of Unfair Dismissal
53 In determining whether the dismissal was harsh, oppressive or unfair, the Commission is guided by the decision of the Industrial Appeal Court in The Undercliffe Nursing Home v The Federated Miscellaneous Workers’ Union of Australia, Hospital, Service and Miscellaneous, WA Branch (1985) 65 WAIG 385. That is, the Commission must make an objective assessment as to whether the respondent exercised its legal right to terminate so harshly or oppressively against the applicant as to amount to an abuse of that right. This involves a consideration as to whether the applicant has received ‘less than a fair deal’ and whether there had been ‘a fair go all around’. The applicant bears the onus of establishing that the dismissal was, in all the circumstances, unfair within the principles set out in Undercliffe Nursing Home.
54 Where an employee is dismissed based on misconduct, the employer bears the evidential onus of proving that the alleged incident or conduct occurred and that the conduct was a valid basis for dismissal.
Was the Applicant Unfairly Dismissed?
55 The applicant submits the respondent dismissed her without notice on 3 February 2020. At the time the respondent advised her that it did not like her attitude, and she was difficult to be around.
56 In the respondent’s response filed in the Commission on 2 June 2020, the respondent states that the applicant was terminated for serious misconduct for the following alleged reasons: (a) neglecting the care and welfare of the animals; (b) falsely claiming hours worked and claiming unauthorised hours of work; (c) damaging the profitability and viability of the business; (d) refusing to work reasonable hours as requested; (e) refusing to communicate with the respondent; (f) disruptive and upsetting behaviour towards her fellow employees; and (g) dishonesty.
57 The applicant contends that at the time of her dismissal, the respondent did not notify the applicant that the alleged reasons were the reasons for her termination. The respondent did not raise or provide notice during the applicant’s employment of any issues regarding the applicant’s conduct or performance nor warn the applicant that dismissal was a possibility.
58 The applicant submits that the alleged reasons are baseless and are an attempt by the respondent to justify his conduct after the fact.
59 The respondent contends that on 1 February 2020, it discovered that the applicant had not been undertaking necessary support and treatment for one of the dogs at the Kennel. The respondent submits that the applicant had been instructed to undertake particular tasks or treatments and had refused or failed to do so. The respondent says this was discovered in general conversation with another employee.
60 The respondent states in its Addendum to his response, submitted on 25 August 2020, that on the afternoon of 1 February 2020, he informed another employee that he would have to ‘sack’ Ms Stephenson because of Ms Stephenson’s neglect and mistreatment of an animal, Cooper, at the Kennel. The respondent requested the employee to work on the Monday morning when he intended to remove Ms Stephenson.
The respondent further states that:
Ms Stephenson was only allowed to come back to my property on the following Monday morning February 3 on the pretence that she was working, so that I could obtain the front door key to my house that Ms Stephenson had in her possession. If it were not for the front door key in Ms Stephenson’s possession I would have phoned/texted Ms Stephenson and sacked her on the spot on Saturday afternoon February 1. I had very little to say to Ms Stephenson on the morning when I sacked her as I was still emotionally distraught and absolutely disgusted by the deliberate mistreatment and neglect to Cooper at the hands of Ms Stephenson, and Cooper’s subsequent deteriorating health. To be honest, all I wanted to do to Ms Stephenson was to flatten her with my fists, but I refrained and got her out of my house and out of my sight as soon as I arrived home to dismiss her.
Findings
61 The applicant gave evidence that the respondent did not raise his concerns about mistreatment or neglect of Cooper with her. Ms Stephenson’s evidence is that she raised concerns about Cooper’s wellbeing with Mr Edwards, however they disagreed about the course of action that was in Cooper’s best interests and that she undertook the tasks as instructed by her employer. The applicant gave evidence of text messages exchanged with Mr Edwards about Cooper’s condition and treatment. These text messages do not include any reference to Mr Edwards raising concerns that the applicant was mistreating or neglecting Cooper.
62 The respondent submits in his Addendum, that he dismissed the applicant because she refused to work afternoon, weekend, and public holiday shifts on a regular basis and that he had warned her in late December 2019 that her ‘job was on the line’.
63 The respondent contends that Ms Stephenson manipulated the shift roster and regularly refused to work some shifts. The applicant’s evidence is that rosters were prepared in advance and that Mr Edwards made changes to the roster once the employees had provided their input. The respondent contends that Ms Stephenson also claimed unauthorised hours of work. Ms Stephenson gave evidence that claims concerning manipulation of the shift roster, alleged refusals to work shifts and claims for unauthorised hours of work were not raised with her at any time prior to her dismissal.
64 The respondent contends that the applicant failed to perform reasonable and lawful requests including being warned three times for unreasonable use or ‘fair use’ of mobile phone during working hours and claiming excessive hours of work when compared with other workers during the same period. Ms Stephenson’s testimony is that she was not warned about concerns with her performance or conduct. Specifically, Ms Stephenson denies receiving warnings about her mobile phone usage.
65 The respondent maintains that Ms Stephenson reported the Kennel to the Royal Society for the Prevention of Cruelty to Animals (RSPCA). Mr Edwards informed Ms Stephenson that both she and the RSPCA were on notice, that he expected the name of the person who made the report to be disclosed within seven days and if this did not occur all 60 dogs would be euthanized. Ms Stephenson denies that she made a report to the RSPCA.
66 The applicant gave evidence at the hearing, and I found she gave her evidence honestly, to the best of her recollection and I have no hesitation in accepting her evidence.
67 If an employer has concerns for an employee’s performance or conduct, these concerns ought to be raised with the employee and an opportunity to address the concerns ought to be provided to an employee.
68 If the respondent had concerns for the applicant’s conduct or performance, it failed to raise these matters with her, failed to inform the applicant of any consequences if the alleged concerns were not addressed and failed to assist or support the applicant to address the alleged concerns. The respondent failed to seek an explanation or response to any alleged concerns with her performance or conduct and did not provide the applicant with a ‘fair go all round’.
69 The respondent admits that on hearing from another employee that the applicant had allegedly mistreated one of the dogs and apparently refused or failed to follow instructions, the respondent immediately decided to dismiss the applicant and decided to do so when the applicant presented at the workplace for her next shift. The respondent neither sought an explanation nor a response to the allegations of mistreatment of the dogs and allegations of failure or refusal to follow instructions.
70 In my assessment the respondent exercised its legal right to terminate Ms Stephenson in a manner that was harsh, unfair and amounted to an abuse of that right.
Remedy
71 I am satisfied that the working relationship between the applicant and the respondent has broken down and is irreparable. There is no longer the required confidence of an employer-employee relationship between the applicant and the respondent. In addition, the applicant is currently employed. Reinstatement is not appropriate, and compensation may be awarded to the applicant.
72 In determining the appropriate amount of compensation to be awarded, the Commission must have regard to the factors set out in s 23A(7) of the IR Act and the factors set out in Ramsay Bogunovich v Bayside Western Australia Pty Ltd (1998) 79 WAIG 8.
73 The central issue is how long the applicant would have continued in employment had she not been dismissed. The applicant submits that she had regular or consistent hours of work based on a roster prepared in advance and had an expectation of continuing employment for at least 181.5 hours in accordance with the roster.
74 I am satisfied that the applicant took reasonable steps to mitigate her loss and secured alternative employment five weeks after her dismissal.
75 Using an average during her total employment of 36.3 hours, the applicant’s total lost wages for the expected period of work in accordance with the advance roster is $4,599.21. The applicant would also have been entitled to receive two weeks’ notice of $1,839.68. I will therefore order the applicant be paid $6,438.89 in compensation for loss.
76 When considering the circumstances of this case and the Commission’s obligations under s 26 of the IR Act, I find that this period approximates the time frame the respondent should have utilised to properly and appropriately investigate any concerns with the applicant’s conduct raised by the conversation with another employee and the other issues the respondent cites as the reasons it terminated the applicant’s employment.
77 In addition to the loss of wages the applicant also claims compensation for injury and distress caused by the respondent’s callous treatment following her dismissal as follows:
(i) failing to provide the applicant with a separation certificate, which created delays and difficulties in the applicant accessing Centrelink support during her unemployment;
(ii) sending the applicant numerous text messages alleging that she complained to the RSPCA about the respondent. The applicant did not make the complaint to the RSPCA and the respondent’s actions caused the applicant distress and suffering;
(iii) threatening to tarnish the applicant's reputation to potential future employers resulting in the applicant changing careers;
(iv) threatening to euthanize 60 dogs if the applicant and the RSPCA did not confirm who made the complaint to the RSPCA which caused the applicant concern and distress; and
(v) delaying the provision of the applicant’s tax group certificate which caused the applicant stress.
78 Injury is also a broad concept, incorporating ‘all manner of wrongs’ and includes, for example, humiliation, injury to feelings and ‘being treated with callousness’: James A Capewell v Cadbury Schweppes Australia Ltd (1998) 78 WAIG 299, 303.
79 For compensation to be awarded for injury, the injury must ‘fall outside the limits which can be taken to have normally been associated with a harsh, oppressive or unfair dismissal’.
80 There will be an element of distress in most dismissal cases, however the circumstances in which the dismissal from employment has been affected may be sufficient to demonstrate the injury which is experienced. Situations where an employee is locked out of the workplace or is escorted from the premises, or the termination has been conducted in full view of other staff are examples of callous treatment justifying recognition for compensation for injury: Nicholas Richard Lynam v Lataga Pty Ltd (2001) 81 WAIG 986.
81 I find that the applicant suffered distress beyond that of most dismissals and as a result undertook training in a new field of expertise so that she may change careers. I find the respondent’s treatment of the applicant both at the time of the dismissal, in locking the door after her, and after the dismissal, in respect of text messages concerning reports to the RSPCA, threats to euthanize 60 dogs and threats to tarnish the applicant’s reputation with future employers to be callous. I will therefore order she be paid $3,000 for the injury suffered.
Conclusion
82 I find the applicant was unfairly dismissed and therefore, I will order that the respondent pay the applicant $9,438.89.
Natasha Stephenson -v- M.J Edwards t/as M.J Edwards & J.Pendarvis

UNFAIR DISMISSAL APPLICATION

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

 

CITATION : 2021 WAIRC 00479

 

CORAM

: Commissioner T B Walkington

 

HEARD

:

Thursday, 17 December 2020

 

DELIVERED : thursday, 26 August 2021

 

FILE NO. : U 27 OF 2020

 

BETWEEN

:

Natasha Stephenson

Applicant

 

AND

 

M.J Edwards t/as M.J Edwards & J.Pendarvis

Respondent

 

CatchWords : Industrial Law - Termination of employment - Unfair dismissal - Compensation - Injury - Adjournment refused

Legislation : Industrial Relations Act 1979 (WA)

Result : Application upheld

Representation:

 


Applicant : Ms E Creek (of counsel)

Respondent : No appearance

 

Case(s) referred to in reasons:

James A Capewell v Cadbury Schweppes Australia Ltd (1998) 78 WAIG 299

Glenn Ross McLeod v Stock Rd Market Tavern [2005] WAIRC 00963; (2005) 85 WAIG 1569

Nicholas Richard Lynam v Lataga Pty Ltd (2001) 81 WAIG 986

Myers v Myers [1969] WAR 19

Ramsay Bogunovich v Bayside Western Australia Pty Ltd (1998) 79 WAIG 8

The Registrar of the Western Australian Industrial Relations Commission v Liquor, Hospitality and Miscellaneous Union, Western Australian Branch (2007) 87 WAIG 126

The Undercliffe Nursing Home v The Federated Miscellaneous Workers’ Union of Australia, Hospital, Service and Miscellaneous, WA Branch (1985) 65 WAIG 385. 

Reasons for Decision

1         The applicant submits that she was unfairly dismissed by the respondent.  The respondent had no valid reason for the dismissal, failed to afford the applicant procedural fairness and dismissed the applicant in circumstances that were harsh, oppressive or unfair.  The applicant seeks relief from the Western Australian Industrial Relations Commission (Commission) in the form of compensation pursuant to s 23A of the Industrial Relations Act 1979 (WA) (IR Act).

Procedural Background

2         The hearing for this matter was set down for 17 December 2020.  Following consideration of the submissions of the parties the hearing proceeded.  The reasons for not adjourning and conducting the hearing in the absence of the respondent are set out as follows.

3         On 28 February 2020 the applicant applied to the Commission pursuant to s 29(1)(b)(i) of the IR Act, for relief alleging that she had been unfairly dismissed and sought compensation.  In accordance with the legislation and regulations the employer was served with the application and notified should they wish to respond; their response was due on 21 March 2020.

4         Mr Edwards did not file a response within the required time frame and was granted an extension until 17 April 2020.  The respondent’s response was received on 2 June 2020, the day of the conciliation conference.  The section concerning the reasons for dismissing the applicant was not completed.

5         Conciliation did not result in an agreement to settle and the applicant requested the matter be heard and determined.

6         On 14 July 2020 notices of hearing were sent to parties for a directions hearing on 26 August 2020.

7         On 25 August 2020 Mr Edwards filed and served an amendment to his response in which he set out the reasons for dismissing the applicant. 

8         On 26 August 2020 following a direction hearing, directions were issued.  The orders included a direction for parties to file and serve an outline of their submissions seven days before the hearing.

9         On 11 September 2020 the parties were notified of the date of the hearing, 25 November 2020 and were advised that their outlines of submission and list of authorities were to be filed and served by 18 November 2020.

10      On 18 November 2020, Mr Edwards advised that he was working on a reply to the applicant’s outline of submissions. 

11      On 24 November 2020, one day before the scheduled hearing, Mr Edwards sought an adjournment of the respondent seeking a hearing adjournment due to staffing issues and work commitments.  Mr Edwards had not yet filed and served his outline of submissions.  The applicant agreed to an adjournment subject to Mr Edwards filing and serving his outline of submissions by 27 November 2020 and that the hearing be relisted before 24 December 2020.

12      On 24 November 2020, Mr Edwards was advised that an adjournment had been granted and the hearing would be scheduled for 23 December 2020 and an extension to file and serve his outline of submissions was granted until 27 November 2020.

13      Mr Edwards advised that 23 December 2020 was not suitable.  The parties were notified that the hearing scheduled for 25 November 2020 was vacated and that the hearing was scheduled for 10 December 2020 in accordance with their availability.

14      On 25 November 2020, notices of hearing for 10 December 2020 were sent by email to the parties.

15      On 1 December 2020, the applicant advised that the respondent had not complied with the direction to file his outline of submissions by 27 November 2020.  The applicant requested that Mr Edwards advise the Commission when he intends to file outline of submissions in order to avoid further delays in proceedings and to ensure that the applicant has adequate opportunity to consider the respondent’s outline of submissions and prepare for the rescheduled hearing listed for 10 December 2020.

16      On 7 December 2020 Mr Edwards requested the hearing listed for 10 December 2020 be adjourned.   The respondent advised that he was not able to staff the kennel as a result of illness of staff during most of November, continuing health issues for one member of staff, dogs requiring medication and intensive nursing, supervision and care of five 10 week old puppies.  The Respondent advised that it expected to be able to file an outline of submissions by 14 December 2020.  The applicant opposed the respondent’s request for adjournment:

(a) The applicant has already consented and accommodated the respondent’s request to reschedule the hearing;

(b) The respondent has had adequate opportunity and notice to make necessary arrangements at the Mageela Cottage & Boarding Kennel;

(c) The hearing was rescheduled to 10 December 2020 to align with respondent’s availability and his reasons requesting adjournment were unsatisfactory.

17      On 8 December 2020, the request for adjournment was granted and the hearing was scheduled for 17 December 2020, in accordance with the parties’ availability.

18      Mr Edwards was notified that further requests for adjournment, unless consented by the other party, will need to be made with submissions and evidence in support of the request.  The Commission drew Mr Edward’s attention to s 27(1)(c) of the IR Act, that provides power for the Commission to order any party to the matter to pay to another party costs and expenses and s 27(1)(d) of the IR Act that provides that the Commission may proceed to hear and determine the matter or any part of thereof in the absence of any party thereto who has been duly summoned to appear or duly served with the notice of the proceedings.

19      On 9 December 2020, notices of hearing were sent to parties for a hearing listed for 17 December 2020.

20      On 10 December 2020 the applicant advised that the respondent had failed to file its outline of submissions in accordance with the Commission’s directions and requested that a further direction be issued that provided an extension to the respondent to file and serve its outline of submissions by 14 December 2020.

21      On 10 December 2020, directions that the respondent file and serve its outline of submissions by 14 December 2020 were issued.

22      On 15 December 2020, the respondent notified the Commission that it’s representative would not be able to attend the hearing.  The respondent advised that because of terminating the employment of an employee, it was short staffed and was not able to engage another employee and train them to enable it’s representative to attend the hearing along with one of the nominated witnesses who is also a kennel hand.  The respondent submits that the termination of employment of an employee and requirement to find, employ and train another employee precluded the respondent’s attendance.  The respondent submitted that he envisaged mid-January 2021 will be the earliest that he would be able to attend a hearing with the kennel hand witness.  The respondent had not yet filed its outline of submissions due the previous day.

23      On the same day the applicant advised that she did not consent to the respondent’s request for an adjournment, submitted that the reasons set out are inadequate and are not supported by evidence and that she ought not be further denied the opportunity for the hearing to proceed and be determined.  The applicant noted that the hearing was relisted to accommodate the respondent’s availability.  The applicant expressed concern that the respondent continues to create delays and has failed to comply with the Commission’s directions to file the respondent’s outline of submissions.  The applicant submits that the matter should proceed and be determined in the absence of the respondent in the event he does not attend.

24      On 15 December 2020, the Commission emailed the respondent noting that he had not filed and served an outline of submissions required by 14 December 2020 and that he had advised that he was not able to attend the hearing scheduled for 17 December 2020.  He had not specifically requested an adjournment.  The Commission noted that the applicant opposed the vacation of the scheduled hearing on 17 December 2021, expressed concern that the conduct of the respondent’s case is resulting in delays and that he has failed to comply with directions issued by the Commission.  The respondent was notified that the Commission will make a determination on whether to proceed with the hearing scheduled for 17 December 2020 and that should the respondent wish to provide any further submissions or any evidence in support of reasons for the hearing to be vacated and scheduled to a date after mid-January 2021, he may do so before 9:00 am on 16 December 2020.

25      The applicant was invited to provide any further submissions concerning the proposed adjournment to the Commission by 4:00 pm on 16 December 2020.

26      The parties were advised that when determining the granting of an adjournment the Commission is guided by the principles set out in Myers v Myers [1969] WAR 19 and a copy of the reasons for decision was provided to the parties.  The parties were also advised that in the event the Commission grants the respondent’s further request for an adjournment, the Commission may order that he pay costs to the applicant in relation to costs incurred because of the adjournment.

27      On 15 December 2020 the respondent submitted:

In short, quite simply I have a community expectation and a personal responsibility to attend to the care and welfare of my animals that ranks higher than individual needs of The Applicant, which is exactly the basis on why The Applicant was sacked anyway.

I repeat, I will be unavailable to attend any hearing until I am able find a suitable employee(s) to cover for my and my witness’ attendance to this matter. Any attempt to continue with this matter without my submission and attendance will surely lead to a miscarriage of justice.

My submission will go back to recorded events as far back as mid-2019, and a detailed timeline and factual description of these events will be presented to The Commission in due course. These events are taking a substantial amount of time to collate and present as I have very limited time, resources and funds at my disposal, at present.

The sacking of The Applicant has had an immediate and significantly measurable impact on my ability to earn an income along with my ability to “create” any “free” time for anything, let alone for matters such as this.

The claim The Applicant is making against me is substantial and is somewhat conveniently narrowed down to the time surrounding the event of the sacking.

I believe I should be afforded the opportunity to be given a “fair go” at these proceedings, after all I am unable control the unpredictable daily needs of my animals, and nor can I control the secretive, deliberate, and intentional refusal by employees to comply with lawful requests from their employer.

And later the same day the respondent further submitted:

I would like to draw your attention to The Applicant’s response and in particular item b “Respondent has had adequate opportunity and notice to make necessary arrangements at the kennel”.

It took almost 12 months to train The Applicant (mostly whilst my partner Joy was still alive) to be able to look after the kennel mostly unsupervised but still answerable to me for anything out of the trained/instructed, yet I am expected to be able to “find” someone else at the drop of a hat to fill in whilst I attend a Hearing, and with my partner no longer being alive?

The kennel has always been run on an “as instructed” basis and still does, never has it run on some repeatable generic format where each dog is merely “a number” to the employee, eg like a vet practice runs, that just leads to premature deaths of animals in my opinion, which I may go into more detail in my submission.

The Applicant knew she was almost irreplaceable by @ September 2019.

I had to give up my work to replace Applicant when I sacked her. E.g. the “You have cost me my income” comment when I sacked The Applicant.

Since my partner Joy died and The Applicant was sacked, I haven’t the funds nor resources available anymore to be able to train up kennel hands “ad lib”.

28      On 16 December 2020, the applicant made the following submissions:

1. An application for an adjournment is within the discretion of the Commission. Following the principles in Myers v Myers [1969] WAR 19, where the refusal of an adjournment would result in serious injustice to one party then an adjournment should be granted, unless this would mean a serious injustice to the other party.

2. In this matter, there is no evidence before the Commission that the Respondent would suffer a serious injustice if this adjournment is refused.  Rather, the Respondent’s submission is to the effect that he is too busy, having sacked the Applicant from employment in February 2020, to attend the Commission to respond to the consequences of that termination.  Yesterday the Respondent wrote to the Commission that “the care and welfare of my animals ranks higher than individual needs of The Applicant”, so that “I will be unavailable to attend any hearing until I am able find a suitable employee(s) to cover for my and my witness’ attendance to this matter”.

3. The Respondent has had multiple opportunities to appear in the matter, and on each occasion has sought an adjournment. This present adjournment request comes despite the hearing having already been adjourned for a second time, at the Respondent’s request, to this particular date.  Rather than being faced with any serous injustice, the Respondent has simply failed (again) to comply with the Commission's processes and Directions.   

4. The Respondent proposes that the matter be adjourned for an indeterminate period of time, until he is able to presumably recruit and train, a replacement for the Applicant.  This vague and constant delay is unacceptable.  There is no evidence before the Commission to suggest that the matter can ever be dealt with promptly, if there is a further adjournment.  The Applicant has grave concerns whether the Respondent will ever be available to attend any rescheduled hearing, given that Respondent has been unable to hire a new employee to replace the Applicant over the past 10 months. The Applicant has no confidence that the Respondent will be able to employ and train a suitable employee within the foreseeable future, and certainly not over the Christmas break so as to be ready in January 2021.

5. The Applicant submits that any prejudice to the Respondent in refusing the adjournment is outweighed by the serious injustice to the Applicant if the hearing is adjourned, for a third time and with no certainty that the Respondent will be able to attend at any relisted hearing date.

6. The Applicant, and the public, have a legitimate expectation of proceedings being managed expeditiously without unnecessary delay, and that matters which come before the Commission are to be dealt with promptly. That has not happened in this case, due to the constant delays requested by the Respondent. The Respondent has a history of failing to comply with the Commission’s Directions, on the basis of various purported inconveniences:

(a) From the outset, in the Respondent’s Form 2A - Employer Response to Unfair Dismissal Application filed on 2 June 2020, the Respondent failed to answer the specific question at 3.2 as to why he asserted that the dismissal was not harsh, oppressive or unfair or unfair.  Instead he wrote “Sorry, didn’t have enough time to get to this”.

(b) The Addendum to Form 2A, filed on 25 August 2020 with an apology that the Applicant could not attend the Commission hearing on 26 August 2020, fails to respond to the Applicant’s specific allegations regarding her termination.

(c) On 26 August 2020, Commissioner Walkington issued Directions that both parties file and serve an Outline of Submissions and any List of Authorities upon which the party intends to rely upon at least seven days prior to the hearing listed on 25 November 2020.

(d) On 18 November 2020, the Applicant filed its Outline of Submissions and List of Authorities in compliance with the Directions. The Respondent notified the Commission on that same day that he was working on a reply to the Applicant’s Outline of Submissions. Despite that, none has been forthcoming.

(e) On 24 November 2020, the Respondent sought that the hearing listed on 25 November 2020 be adjourned due to a variety of reasons, including that there was a risk that the Respondent and one of the Respondent’s witnesses had been exposed to COVID-19. No evidence has ever been presented of such exposure. The Applicant confirmed that she was willing to consent to a short adjournment on the basis that the matter be relisted for a hearing before 24 December 2020, and that the Respondent file the Respondent’s Outline of Submissions by 27 November 2020. Such directions were made and the hearing was relisted to 10 December 2020.

(f) The Respondent failed to file his Outline of Submissions by 27 November 2020 in accordance with the Commission’s Directions.

(g) On 7 December 2020, the Respondent made a second request to adjourn the hearing listed on 10 December 2020 for numerous reasons, including that there would be an inadequate number of employees at the kennel.  The Applicant opposed the Respondent’s request for a further adjournment on the basis that the hearing had been rescheduled to a date to accommodate the Respondent’s availability, the Respondent had been given adequate opportunity and notice to make necessary arrangements at the kennel and the reasons set out by the Respondent were otherwise unsatisfactory.

(h) The Commission granted the Respondent’s request for an adjournment of the hearing to 17 December 2020. A Direction was issued that the Respondent file and serve an Outline of Submissions by close of business on 14 December 2020.

(i) The Respondent failed to file his Outline of Submissions by 14 December 2020 in compliance with the Directions.

(j) On 15 December 2020, the Respondent made a third request to adjourn the hearing listed on 17 December 2020 on the basis that Respondent was short staffed and unable to attend the hearing. 

7. The Respondent has now sought an adjournment on three separate occasions, each at the eleventh hour. On each occasion the Respondent failed to provide any evidence to support his reasons for seeking an adjournment. The Respondent continues to not comply with the Directions to file an Outline of Submissions and has provided no explanation for non-compliance.

8. The Applicant submits that there would be prejudice to her if another adjournment is granted.  The Applicant was dismissed from her employment on 3 February 2020. The Applicant has expended considerable time and effort in preparing her case, including rostering time off work for each hearing date, and is ready to proceed and give evidence at the hearing listed tomorrow. As set out in Glenn Ross McLeod v Stock Rd Market Tavern 2005 WAIRC 00963, matters before the Commission are to be dealt with promptly and evidence should be taken from witnesses as close as possible to the events which the application relates.

9. The reasons set out in the Respondent’s emails dated 15 December 2020 seeking a third adjournment request are wholly inadequate.  The Respondent’s submissions that he is unable to “control the unpredictable daily needs of my animals” or “control the secretive, deliberate, and intentional refusal by employees to comply with lawful requests from their employer” is not a proper basis to seek an adjournment.  It is manifestly unfair for an employee who has been dismissed to then be denied their right to the timely determination of their complaint, on the basis that the employer states that the employee’s dismissal itself makes it too hard for the employer to comply with the Commission’s directions. The Respondent’s position is that he cannot file an Outline of Submissions or attend at a hearing, because he sacked the Applicant and now, 10 months on, is short-staffed because of the termination.

10. The Respondent has been aware since the directions hearing on 26 August 2020 that he would be required to file an Outline of Submissions in these proceedings and attend a hearing to determine the matters set out in the application. Further, the Respondent has had numerous opportunities since these proceedings were commenced on 28 February 2020 to seek legal representation. The Applicant submits that there would be no injustice to the Respondent in circumstances where the Respondent’s conduct demonstrates a persistent failure to comply with the Commission’s Directions and an unwillingness to comply with Directions or engage with the Commission’s processes.

11. The Applicant submits that the matter should proceed to a hearing on 17 December 2020 and that the Commission should exercise its powers pursuant to section 27(1)(d) of the Industrial Relations Act 1979 (WA) to proceed to hear and determine the matter in the absence of the Respondent in the event he does not attend the hearing on that day.

29      On 16 December 2020, the parties were notified that the respondent’s request for a third adjournment had not been granted and the hearing listed for 17 December 2020 at 11:30 am would proceed. 

30      The hearing proceeded for the reasons set out below.

31      On the evening of 16 December 2020, the respondent made further submissions:

First of all, I have never tried to hire an employee to replace The Applicant’s position. The Applicant and her position were made redundant when she was sacked, as were two other innocent employees of mine around about the same time, so that I was able to afford to give up work to come back and care for the animals in the manner that I had instructed The Applicant to do, which she failed to do. At the time I needed to cut wage costs by @ $125,000 per year to afford to give up work.

At the moment I am trying to replace one of the workers who works around me, The Applicant’s position no longer exists for any potential employee, and never has been since The Applicant was quite rightly sacked for negligence and Serious Misconduct

Tomorrow I will be working in the kennel from @ 6:30 to @ 10:00am, then I will be taking two dogs (Harley 10 and a half years old and Chilli 13 and a half years old) to the vet as they both have medical conditions that require attention and in the case of Harley, a possible operation may be required before the weekend. I make no apologies and have no regrets about placing the welfare of my animals in front of both the Commission and The Applicant, and I’ll tell you why.

 I had to give up a majority of my work to replace that bitch (The Applicant) at the kennel with myself because she would no longer follow instruction, because she thought she knew better about everything now that she had veterinary nurse training under her belt.

 Two other employees along with The Applicant had their employment terminated around the same time (January to April 2020) because of The Applicant’s misdemeanours.

 One of those three employees terminated was an innocent Tyreshop employee of mine who unfortunately had to go for me to be able to reduce my wages bill by a combined @ $125,000.00 to compensate for the wages I could no longer earn.

 Should the hearing proceed tomorrow without me there will be two more innocent employees lose their employment and livelihoods immediately as I will close the tyreshop I own as I will no longer have an interest in employing people anymore.

 Their combined wages amount to in excess of $100,000.00 of which I have had to subsidise some of this amount personally since COVID-19 affected business.

 The tyre shop, as well as the kennel, do not make any profit.

 I have deliberately held off signing a new lease for the tyreshop this year until I saw where this matter was headed, so fortunately I have no contractual building lease obligations tying me down to keep the tyreshop open.

The Commission is the one who is actually on notice here, as it has a decision to make and quite frankly I don’t care which way it goes.

 In my absence it can decide to award to The Applicant what it is seeking along with costs tomorrow, remembering this is an employee who was sacked for Serious Misconduct and unsatisfactory performance and a number of other breaches.

 Because I have lost my ability to work away, I will also have to sack my innocent honest working and compliant tyre shop employees because I’ll have to reduce costs to able to pay the amount awarded (if any) to The Applicant. They will both unfortunately lose their livelihoods. One of them has worked for me for almost 6 years, the other for about three years.

 I may also consider sacking or reducing my innocent and hard working kennel employees work hours because I can no longer work away to subsidise their wages.

 I can actually do the kennel by myself each day if I have to. It’s a long 15 hour day seven days a week, but if I have to save $200-$250 per day by sacking the kennel employees to save the money to pay to The Applicant I will do it. It’s no longer any skin off my nose who I pay the money to, it’s all just a cost to me, don’t care who gets it.

In summary and in short, there is a real chance four employees will lose all or a majority of their livelihoods should The Commission decide to proceed with this hearing tomorrow without me, I don’t care either way. I’ll still have my dogs, which if I’d kept The Applicant in my employ back in February 2020, I wouldn’t have as many alive today as I still do. I am very glad to hear The Applicant has chosen a different career path – it was the right thing to do and I support her move into a non animal care industry.

Attached is a copy of a bill for a dog that required further medical attention and veterinary intervention partially because The Applicant would not follow simple instruction to administer a $50.00 course of antibiotics as prescribed upon veterinary advice. Have a look at how much it ended up costing me and for two weeks the dog nearly died, but eventually Gucci pulled through and is still alive today.

Personally, I think it is a disgrace the way the WAIRC operates with minor disputes like this, lawyers should not be involved. I will make sure this matter gets reviewed by those who are in a position to make changes.

32      At the hearing the applicant advised she had considered the respondent’s further submissions and maintained her objection to a further adjournment.  The hearing was not adjourned and proceeded in the absence of the respondent for the reasons set out below.

Principles

33      In Myers v Myers the Supreme Court considered the principles to be applied in determining whether to adjourn a hearing or not.  Where a refusal of an adjournment would result in serious injustice to one party, an adjournment should be granted unless in turn this would mean serious injustice to the other party: Myers v Myers, 21.  In considering whether to grant an adjournment of a hearing by the Commission, the exercise of discretion is to consider not only fairness and justice to the parties but, in an appropriate case, the public interest is to be considered.  As Ritter AP in The Registrar of the Western Australian Industrial Relations Commission v Liquor, Hospitality and Miscellaneous Union, Western Australian Branch (2007) 87 WAIG 126 [45] - [46] observed, this is consistent with the principal object in s 6(c) of the IR Act and the exercise of the jurisdiction of the Commission set out in s 26(1)(c) of the IR Act

34      As set out in Glenn Ross McLeod v Stock Rd Market Tavern [2005] WAIRC 00963; (2005) 85 WAIG 1569, matters before the Commission are to be dealt with promptly and evidence should be taken from witnesses as close as possible to the events which the application relates.

35      During this matter the respondent has sought an adjournment for the notified hearing on three occasions because of reasons associated with staffing its business operations.  The respondent submits that he is ‘unable to control the unpredictable daily needs of my animals, and nor can I control the secretive, deliberate, and intentional refusal by employees to comply with lawful requests from their employer’.  The respondent attributes his inability to conduct his case to the nature of his business and the conduct of his employees.  The respondent includes the termination of the applicant described as a ‘sacking’ by the respondent, as a contributing factor to his inability to prepare and conduct his case.

36      The respondent also contends that its representative was not able to attend hearings because it was short staffed because of its actions in either recruiting staff and/or terminating the employment of staff.  The respondent has not submitted any evidence of the matters that preclude its representative from attending hearings.  These are matters within the respondent’s control and its decisions are a matter for which they are responsible.  The applicant ought not be denied her entitlement to an expeditious hearing because of the respondent’s choices concerning its business operations.

37      The respondent’s representative advised that he was not available to attend any hearing until he finds a suitable employee(s) to staff his business operations in his absence and the absence of his witness’ attendance.  The respondent’s representative did not provide any certainty as to his availability in the future. 

38      In relation to the respondent’s outline of submissions, the respondent’s representative advised that preparation of the outline of submissions were taking a substantial amount of time to collate, he had limited time and that he would present his submissions in due course.  The representative did not provide an anticipated time frame.  The respondent has not sought extensions to be able to file and serve its outline of submissions.  The applicant has facilitated the opportunity for the respondent to file and serve its outline of submission outside of the time frame set down in directions.

39      The respondent submits that progression of this matter without his submission and the conduct of a hearing in his absence will be a miscarriage of justice.  The respondent contends that he ought to be given a ‘fair go’ at these proceedings.

40      The respondent has not complied with directions concerning the submission of outlines of submissions and the scheduling of hearings.  The directions have been issued following consideration of the parties’ submissions and subsequently varied to accommodate the respondent.  The respondent has been provided with ample opportunity to submit its outline of submissions, however despite undertakings to do so has failed to do so within the set time frames.  The respondent continues to assert that it is working on preparing an outline of submissions, however, cannot be certain when these will be submitted because their business operations have priority over this matter.

41      The respondent’s contentions that the termination of the applicant resulted in reduced staffing of its business operations and contributed to its inability to complete an outline of submissions.  Its representative’s inability to attend a hearing, are matters for the respondent’s organisation of its business operations.  The applicant’s employment was terminated in early February 2020 and the respondent is yet to appoint another employee to replace her.  Despite earlier submissions concerning the need to replace the applicant before it was able to attend hearings and prepare its outline of submissions the respondent makes the contradictory assertion that it never intended to replace the applicant.

42      Given the respondent’s conduct and submissions in support of his request to extend the time frame to submit an outline of submissions in due course, I am unable to conclude that an extension of time to submit an outline of submissions would result in the respondent complying with an extended time frame.  The applicant’s legitimate expectation that the case be progressed without unnecessary delay ought not be prejudiced because of the respondent’s decisions concerning its business operations. 

43      The scheduling of hearings has taken into consideration the respondent’s availability on each occasion.  Evidence should be taken from witnesses as close as possible to the events which the application relates.

44      The applicant has expended time and effort in preparing her case, including rostering time off work for each hearing date.  The respondent notified of its representative’s inability to attend the hearing with little notice.  As a result, the applicant has been required to make further arrangements in relation to work commitments and in preparation of her case.

45      I find the respondent’s submissions that its representative will not be in position to attend a hearing until it can find a suitable employee to cover his absence from the workplace and the contradictory submission that it has never intended to replace the applicant, are not credible.  The respondent has not provided any evidence of efforts to address this alleged barrier.  The respondent has also declined to appoint an alternate representative.  I am not convinced that if the hearing was adjourned the respondent will address this barrier and enable the hearing to proceed.  The respondent has been provided with ample opportunity to file and serve its outline of submissions and has not done so.  I am not convinced that extending the time further would result in an outline of submissions being filed and served.

46      Considerable time has now elapsed in the matter to accommodate the respondent’s previous requests for adjournments of this hearing and it has become unfair to continue to deny the applicant a determination in these proceedings.  I find that any prejudice to the respondent is outweighed by the prejudice to the applicant.

47      For these reasons, an adjournment was not granted, and the hearing proceeded in the absence of the respondent’s representative.

Was the Applicant Unfairly Dismissed?

48      On 27 June 2018, the applicant commenced employment at Mageela Cottage & Boarding Kennel (Kennel) in the role of kennel hand.  The applicant’s position is a Level 2 position covered by the Animal Welfare Industry Award, and she was responsible for feeding, cleaning and caring for the dogs at the Kennel.  The applicant is a qualified veterinary nurse with a Certificate IV in Veterinary Nursing from Applied Vocational Training.

49      Initially the applicant worked for an average of 25 to 30 hours per week and from September 2019 this increased to 38.56 hours per week.  Rosters were planned in advance.

50      On 1 February 2020, the applicant identified that there had been a shortfall between the gross and net pay for the pay period 18 January 2020 to 24 January 2020.  The applicant was not provided with payslips by the respondent throughout her employment.  The applicant sent a text message to the respondent and an exchange about the payment and calculation of the applicant’s wages ensued by text message.  In response the respondent informed the applicant that deductions had been made from her pay to cover bathroom, food, drink and phone usage breaks.

51      The applicant gave evidence that on 3 February 2020 at approximately 7:00 am, Mr Edwards, the proprietor of the Kennel, approached the applicant and stated that ‘It’s time for you to go Nat’.  In response to the applicant’s question about his statement, Mr Edwards further stated ‘I don’t like your attitude’, ‘You are costing me income’ and ‘I don’t like your attitude and you are hard to be around.  You're a good worker and your work was fine but it’s time for you to leave’.  Mr Edwards then required the applicant to return her key to the Kennel and locked the door immediately after the applicant exited the room.

Question to Decide

52      I must decide whether the applicant’s dismissal, when viewed objectively, was harsh, oppressive or unfair.

Principles of Unfair Dismissal

53      In determining whether the dismissal was harsh, oppressive or unfair, the Commission is guided by the decision of the Industrial Appeal Court in The Undercliffe Nursing Home v The Federated Miscellaneous Workers’ Union of Australia, Hospital, Service and Miscellaneous, WA Branch (1985) 65 WAIG 385.  That is, the Commission must make an objective assessment as to whether the respondent exercised its legal right to terminate so harshly or oppressively against the applicant as to amount to an abuse of that right.  This involves a consideration as to whether the applicant has received ‘less than a fair deal’ and whether there had been ‘a fair go all around’.  The applicant bears the onus of establishing that the dismissal was, in all the circumstances, unfair within the principles set out in Undercliffe Nursing Home.

54      Where an employee is dismissed based on misconduct, the employer bears the evidential onus of proving that the alleged incident or conduct occurred and that the conduct was a valid basis for dismissal.

Was the Applicant Unfairly Dismissed?

55      The applicant submits the respondent dismissed her without notice on 3 February 2020.  At the time the respondent advised her that it did not like her attitude, and she was difficult to be around.

56      In the respondent’s response filed in the Commission on 2 June 2020, the respondent states that the applicant was terminated for serious misconduct for the following alleged reasons: (a) neglecting the care and welfare of the animals; (b) falsely claiming hours worked and claiming unauthorised hours of work; (c) damaging the profitability and viability of the business; (d) refusing to work reasonable hours as requested; (e) refusing to communicate with the respondent; (f) disruptive and upsetting behaviour towards her fellow employees; and (g) dishonesty.

57      The applicant contends that at the time of her dismissal, the respondent did not notify the applicant that the alleged reasons were the reasons for her termination.  The respondent did not raise or provide notice during the applicant’s employment of any issues regarding the applicant’s conduct or performance nor warn the applicant that dismissal was a possibility.

58      The applicant submits that the alleged reasons are baseless and are an attempt by the respondent to justify his conduct after the fact.

59      The respondent contends that on 1 February 2020, it discovered that the applicant had not been undertaking necessary support and treatment for one of the dogs at the Kennel.  The respondent submits that the applicant had been instructed to undertake particular tasks or treatments and had refused or failed to do so.  The respondent says this was discovered in general conversation with another employee.

60      The respondent states in its Addendum to his response, submitted on 25 August 2020, that on the afternoon of 1 February 2020, he informed another employee that he would have to ‘sack’ Ms Stephenson because of Ms Stephenson’s neglect and mistreatment of an animal, Cooper, at the Kennel.  The respondent requested the employee to work on the Monday morning when he intended to remove Ms Stephenson. 

The respondent further states that:

Ms Stephenson was only allowed to come back to my property on the following Monday morning February 3 on the pretence that she was working, so that I could obtain the front door key to my house that Ms Stephenson had in her possession. If it were not for the front door key in Ms Stephenson’s possession I would have phoned/texted Ms Stephenson and sacked her on the spot on Saturday afternoon February 1. I had very little to say to Ms Stephenson on the morning when I sacked her as I was still emotionally distraught and absolutely disgusted by the deliberate mistreatment and neglect to Cooper at the hands of Ms Stephenson, and Cooper’s subsequent deteriorating health. To be honest, all I wanted to do to Ms Stephenson was to flatten her with my fists, but I refrained and got her out of my house and out of my sight as soon as I arrived home to dismiss her.

Findings

61      The applicant gave evidence that the respondent did not raise his concerns about mistreatment or neglect of Cooper with her.  Ms Stephenson’s evidence is that she raised concerns about Cooper’s wellbeing with Mr Edwards, however they disagreed about the course of action that was in Cooper’s best interests and that she undertook the tasks as instructed by her employer.  The applicant gave evidence of text messages exchanged with Mr Edwards about Cooper’s condition and treatment.  These text messages do not include any reference to Mr Edwards raising concerns that the applicant was mistreating or neglecting Cooper. 

62      The respondent submits in his Addendum, that he dismissed the applicant because she refused to work afternoon, weekend, and public holiday shifts on a regular basis and that he had warned her in late December 2019 that her ‘job was on the line’. 

63      The respondent contends that Ms Stephenson manipulated the shift roster and regularly refused to work some shifts.  The applicant’s evidence is that rosters were prepared in advance and that Mr Edwards made changes to the roster once the employees had provided their input.  The respondent contends that Ms Stephenson also claimed unauthorised hours of work.  Ms Stephenson gave evidence that claims concerning manipulation of the shift roster, alleged refusals to work shifts and claims for unauthorised hours of work were not raised with her at any time prior to her dismissal.

64      The respondent contends that the applicant failed to perform reasonable and lawful requests including being warned three times for unreasonable use or ‘fair use’ of mobile phone during working hours and claiming excessive hours of work when compared with other workers during the same period.  Ms Stephenson’s testimony is that she was not warned about concerns with her performance or conduct.  Specifically, Ms Stephenson denies receiving warnings about her mobile phone usage.

65      The respondent maintains that Ms Stephenson reported the Kennel to the Royal Society for the Prevention of Cruelty to Animals (RSPCA).  Mr Edwards informed Ms Stephenson that both she and the RSPCA were on notice, that he expected the name of the person who made the report to be disclosed within seven days and if this did not occur all 60 dogs would be euthanized.  Ms Stephenson denies that she made a report to the RSPCA.

66      The applicant gave evidence at the hearing, and I found she gave her evidence honestly, to the best of her recollection and I have no hesitation in accepting her evidence.

67      If an employer has concerns for an employee’s performance or conduct, these concerns ought to be raised with the employee and an opportunity to address the concerns ought to be provided to an employee.

68      If the respondent had concerns for the applicant’s conduct or performance, it failed to raise these matters with her, failed to inform the applicant of any consequences if the alleged concerns were not addressed and failed to assist or support the applicant to address the alleged concerns. The respondent failed to seek an explanation or response to any alleged concerns with her performance or conduct and did not provide the applicant with a ‘fair go all round’. 

69      The respondent admits that on hearing from another employee that the applicant had allegedly mistreated one of the dogs and apparently refused or failed to follow instructions, the respondent immediately decided to dismiss the applicant and decided to do so when the applicant presented at the workplace for her next shift.  The respondent neither sought an explanation nor a response to the allegations of mistreatment of the dogs and allegations of failure or refusal to follow instructions.

70      In my assessment the respondent exercised its legal right to terminate Ms Stephenson in a manner that was harsh, unfair and amounted to an abuse of that right. 

Remedy

71      I am satisfied that the working relationship between the applicant and the respondent has broken down and is irreparable.  There is no longer the required confidence of an employer-employee relationship between the applicant and the respondent.  In addition, the applicant is currently employed.  Reinstatement is not appropriate, and compensation may be awarded to the applicant.

72      In determining the appropriate amount of compensation to be awarded, the Commission must have regard to the factors set out in s 23A(7) of the IR Act and the factors set out in Ramsay Bogunovich v Bayside Western Australia Pty Ltd (1998) 79 WAIG 8.

73      The central issue is how long the applicant would have continued in employment had she not been dismissed.  The applicant submits that she had regular or consistent hours of work based on a roster prepared in advance and had an expectation of continuing employment for at least 181.5 hours in accordance with the roster. 

74      I am satisfied that the applicant took reasonable steps to mitigate her loss and secured alternative employment five weeks after her dismissal.

75      Using an average during her total employment of 36.3 hours, the applicant’s total lost wages for the expected period of work in accordance with the advance roster is $4,599.21.  The applicant would also have been entitled to receive two weeks’ notice of $1,839.68.  I will therefore order the applicant be paid $6,438.89 in compensation for loss.

76      When considering the circumstances of this case and the Commission’s obligations under s 26 of the IR Act, I find that this period approximates the time frame the respondent should have utilised to properly and appropriately investigate any concerns with the applicant’s conduct raised by the conversation with another employee and the other issues the respondent cites as the reasons it terminated the applicant’s employment.

77      In addition to the loss of wages the applicant also claims compensation for injury and distress caused by the respondent’s callous treatment following her dismissal as follows:

(i) failing to provide the applicant with a separation certificate, which created delays and difficulties in the applicant accessing Centrelink support during her unemployment;

(ii) sending the applicant numerous text messages alleging that she complained to the RSPCA about the respondent.  The applicant did not make the complaint to the RSPCA and the respondent’s actions caused the applicant distress and suffering;

(iii) threatening to tarnish the applicant's reputation to potential future employers resulting in the applicant changing careers;

(iv) threatening to euthanize 60 dogs if the applicant and the RSPCA did not confirm who made the complaint to the RSPCA which caused the applicant concern and distress; and

(v) delaying the provision of the applicant’s tax group certificate which caused the applicant stress.

78      Injury is also a broad concept, incorporating ‘all manner of wrongs’ and includes, for example, humiliation, injury to feelings and ‘being treated with callousness’: James A Capewell v Cadbury Schweppes Australia Ltd (1998) 78 WAIG 299, 303.

79      For compensation to be awarded for injury, the injury must ‘fall outside the limits which can be taken to have normally been associated with a harsh, oppressive or unfair dismissal’.

80      There will be an element of distress in most dismissal cases, however the circumstances in which the dismissal from employment has been affected may be sufficient to demonstrate the injury which is experienced.  Situations where an employee is locked out of the workplace or is escorted from the premises, or the termination has been conducted in full view of other staff are examples of callous treatment justifying recognition for compensation for injury: Nicholas Richard Lynam v Lataga Pty Ltd (2001) 81 WAIG 986.

81      I find that the applicant suffered distress beyond that of most dismissals and as a result undertook training in a new field of expertise so that she may change careers.  I find the respondent’s treatment of the applicant both at the time of the dismissal, in locking the door after her, and after the dismissal, in respect of text messages concerning reports to the RSPCA, threats to euthanize 60 dogs and threats to tarnish the applicant’s reputation with future employers to be callous.  I will therefore order she be paid $3,000 for the injury suffered.

Conclusion

82      I find the applicant was unfairly dismissed and therefore, I will order that the respondent pay the applicant $9,438.89.