[2021] FWC 1163

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ajay Dalby Salu
v
ISS Facility Services Pty Ltd
(U2020/6985)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 10 MARCH 2021

Application for an unfair dismissal remedy.

[1] By his application lodged on 20 May 2020, Mr Ajay Dalby Salu (Applicant) applies under s.394 of the Fair Work Act 2009 (Act) for an unfair dismissal remedy. The Applicant was employed by ISS Facilities Services Pty Ltd (Respondent) from 27 January 2013 until his dismissal on 4 May 2020. The Respondent is, relevantly, a provider of cleaning services in Victorian government schools. The Applicant was employed as a Client Service Supervisor in connection with the Respondent’s contract to provide cleaning services to various Victorian government schools.

[2] The Applicant contends that his dismissal was harsh, unjust or unreasonable and seeks an order for reinstatement or alternatively an order for compensation. The Respondent contends the Applicant’s dismissal was not unfair. It says there was a valid reason to dismiss the Applicant and relies on a number of matters which relate to both the Applicant’s performance and conduct as justifying the dismissal.

Initial matters to be considered

[3] Section 396 of the Act requires that certain matters must be determined by the Commission in relation to any unfair dismissal remedy application before the merits of the application may be considered. In respect of the matters identified in paragraphs (a), (b), (c) and (d) of s.396, it was not in dispute and I find that:

1. The application was made within the 21-day period allowed in s.394(2)(a);

2. The Applicant was a person “protected from unfair dismissal” within the meaning of that expression in s.382 at the time of his dismissal by the Respondent; and

3. The Respondent was not a “small business employer” within the meaning of s.23 of the Act at the relevant time. It is therefore unnecessary to consider whether the Respondent complied with the Small Business Fair Dismissal Code; and

4. The dismissal was not effected for reasons of redundancy, and so it was not a case of genuine redundancy within the meaning of s.389 of the Act.

[4] For the reasons which follow, I have concluded that the Applicant’s dismissal was unfair.

Factual background and findings

[5] It is necessary first to set out the variable reasons for the Applicant’s dismissal proffered by the Respondent, beginning with those contained in the written notice of termination of employment given to the Applicant.¹ Therein the Respondent advised the Applicant that his “termination is as a result of: -

• Failure to respond to communication and requests for meetings

• Failure to return phone calls in regards to return to work

• Failure to follow ISS employee process when stood down

• Failure to follow leave processes

• Failure to present to work as scheduled after end of leave

• Ongoing performance issues and failure to appear for meeting requests regarding those performance issues.”²

[6] In its F3 Employer response form, the Respondent gave the following as reasons for the Applicant’s dismissal:

“1. Ongoing performance issues of high risk nature

2. Failure to appear for meeting requests regarding issues

3. Failure to follow any ISS processes regarding time off from work and failure to communicate with managers when requested”.³

[7] When the Respondent filed its outline of submissions it contended as follows:

“4. A number of serious misconduct and performance issues arose in relation to the Applicant’s employment. These included:

• Dishonesty regarding periodical cleaning work that was required to have been performed at schools within his region;

• Directing employees to work on a public holiday and not record their hours;

• Damaging a company vehicle and not reporting it;

• Failing to attend meetings or respond to allegations;

• Failing to answer calls and be contactable during working hours;

• Failing to follow procedures regarding COVID-19 testing and reporting;

• Failure to attend work as required; and

• Inappropriate communication.

5. The Respondent was issued warnings in relation to failing to report the damage to a company vehicle, use of inappropriate language and his failure to communicate regularly.

6. The Respondent endeavoured to meet with the Applicant on multiple occasions without success and was eventually left with no option but to terminate the Applicant by written notice.”⁴

[8] In its final submissions the Respondent contended that the valid reason for the Applicant’s dismissal was his concession that he had directed to employees not to record their hours of work on a public holiday on Monday, 27 January 2020.⁵ The Respondent also contended that the following matters, taken together, also constituted a valid reason for the Applicant’s dismissal:

• Dishonesty regarding the amount of periodical cleaning work required to be rectified at schools within his responsibility, where the Applicant advised the Respondent on 25 January 2020 that he only required two cleaners but was discovered to be using many more.

• The Applicant’s inappropriate communication with school staff via email on 28 January 2020.

• The Applicant’s failure to provide the Respondent with the result of COVID-19 testing undertaken on 21 March 2020, only providing a medical certificate covering a two-week period of absence.

• The Applicant’s failure to return to work at the conclusion of his medical certificate from 6 April 2020 until 14 April 2020.

• The Applicant was frequently difficult to contact by phone, including during his normal working hours and did not attend scheduled meetings.⁶

[9] That the Applicant might be confused about the reason or reasons for his dismissal is an understatement. Variable as they have been, I will endeavour to deal with the various performance and conduct allegations said by the Respondent to constitute a valid reason for dismissal by reference to the evidence.

Directing employees to work on a public holiday and not record their hours

[10] The allegation is that the Applicant directed two employees to perform work on 27 January 2020, which was a public holiday, and directed these employees not to record their hours worked. The Applicant accepts that he asked two employees not to clock in or out of Kronos (a timekeeping record used by the Respondent) when working on the public holiday.⁷ He says however that he did so on the instruction of his manager, Mr George Toghian, an instruction said to have been given during a meeting involving Mr Toghian, the Applicant and other customer service supervisors of the Respondent held at 6:30 pm on 23 January 2020.⁸ The Applicant also says that Mr Toghian gave the same direction to Ms Aysen Altamaz.⁹

[11] Mr Toghian denies that he gave such an instruction to the Applicant or to anyone else.¹⁰ Though the Applicant maintained in his evidence that Mr Toghian gave the direction, he did not challenge Mr Toghian during cross examination. The Applicant did not put to Mr Toghian that he gave the Applicant a direction nor did the Applicant suggest to Mr Toghian that he was being untruthful or mistaken in his denial set out in his written statement. At its highest, the Applicant put to Mr Toghian that he (Mr Toghian) did not remember all that was said during the meeting at which the alleged direction was given and that he (Mr Toghian) did not remember whether he gave the direction.¹¹ Mr Toghian did not say he could not remember. In his statement Mr Toghian said that at the meeting or at any other meeting during that week, he “did not instruct any supervisor to utilize staff and not have team members sign on and off”. 12 During his oral evidence in chief, Mr Toghian said the evidence given by the Applicant about the direction was “completely incorrect”.13 He also later said he would never give such a direction.¹⁴ Ms Altamaz’s evidence tends to corroborate Mr Toghian’s evidence. Contrary to the Applicant’s evidence, Ms Altamaz says that in the meeting described by the Applicant, Mr Toghian did not instruct her to use staff but asked them not to sign on or off.¹⁵ I accept Ms Altamaz’s evidence. She has no apparent reason to be untruthful. She had left her employment with the Respondent long before giving evidence.¹⁶ There is no suggestion that she asked any cleaner to work on 27 January 2020 and not sign on or off. On balance therefore I prefer Mr Toghian’s evidence.

[12] It follows that I am satisfied on the evidence the Applicant directed two employees to perform work on the 27 January 2020, which was a public holiday, and directed these employees not to record their hours worked as alleged by the Respondent. I am not persuaded that he did so at the direction of Mr Toghian. This conduct is serious and constitutes misconduct. The Respondent would have been entitled to summarily dismiss the Applicant when it became aware of the conduct. But it did not do so. The conduct would not cease to be misconduct even if I were to accept the Applicant’s evidence (which I do not) that he was instructed by Mr Toghian to give the direction. Such an instruction, if given, ought not be followed. It is unlawful and when implemented deprived the affected employees of their right to be paid for work performed on a public holiday and exposed the Respondent to penalties for contravention of the applicable industrial instrument which pertained to the two employees. The misconduct as I have found would, if acted on at the time it became known to the Respondent, constitute a valid reason for the Applicant’s dismissal. But that is not what happened.

[13] Ms Marisa Gross, the Respondent’s People and Culture Manager, gave evidence that approximately two weeks after the public holiday on 27 January 2020, the United Workers Union had provided her with a complaint it had received from a team member. The complaint was that the Applicant had directed the team member to work on a public holiday and had directed the team member not to register this in the Respondent’s time and attendance system and that the Applicant had said that he would fix the payment due for the work performed manually.¹⁷ But it is clear that Ms Goss had knowledge of the issue at a point earlier in time because in an email from Mr Toghian to Ms Goss (also copied to Mr Shaun Le Feuve, a Key Account Manager of the Respondent for Victorian Government Schools Contract) sent in the evening of 6 February 2020, Mr Toghian advised Ms Goss amongst other things that “Ajay asked cleaners not to clock in as it would affect his profit and loss on a public holiday not sure how he was planning to pay them”.¹⁸ Mr Toghian’s evidence about when he became aware of this issue was, to say the least, unclear¹⁹ but it may be inferred from a text message that he had received²⁰ from an employee affected by the direction, and that he was aware as early as 3 February 2020.²¹ In that text message, the affected employee advised Mr Toghian that on the “last public holiday, Ajay called (me) to work and we worked from 3:30 to 12:30. He said don’t punch in he gonna (sic) talk to you or big boss Shawn (sic) and he will fix the hours. He said he only gonna (sic) pay us a normal rate. We needed money so we agreed.”²²

[14] Apart from discussing the issue with Ms Goss²³, it does not appear that Mr Toghian took any step to rectify the underpayment or to counsel, warn or otherwise discipline the Applicant in relation to the issue. Mr Le Feuve was also aware or should have been aware of the issue as he had received a copy of Mr Toghian’s email of 6 February 2020. His witness statement suggests that he became aware of the issues as early as 28 January 2020. 24 There is no evidence that he took any step to counsel, warn or otherwise discipline the Applicant. Ms Goss was aware of the incident from at least 6 February 2020, and although the underpayments were later rectified, there is no evidence that she took any step to counsel, warn or otherwise discipline the Applicant. Indeed, as the letter of termination of employment given to the Applicant on 4 May 2020 discloses, this incident did not find its way into the letter as a reason for the dismissal. There is no evidence of the Respondent having conducted an investigation in relation to the issue or even raising the matter with the Applicant, indeed the evidence is to the contrary.²⁵ This is despite the Applicant having been suspended from duty on or about 16 April 2020 for reasons unrelated to the issue.²⁶ This issue, as a reason for dismissal, did not find its way into the employer response form filed in these proceedings and the first time the matter is raised as a reason for dismissal is in the Respondent’s submissions filed in response to the Applicant’s merits case.

[15] The Respondent had knowledge about the issue as early as 3 February 2020 and certainly no later than 6 February 2020 but did not take any step to raise the issue with the Applicant or to counsel, warn or otherwise discipline him. The reason articulated by Ms Goss in her evidence for the failure to take any action is respectfully very weak. It amounts essentially to a proposition that she wished to raise the matter with the Applicant in an in-person meeting. However, Ms Goss did not take any step to communicate to the Applicant that she wished to raise that issue with him during an in-person meeting.²⁷ I reject Ms Goss’ explanation for the failure to take any steps in relation to the issue. It bears all the hallmarks of a post facto justification for what was plainly a lack of any action on the part of the Respondent concerning the issue.

[16] The failure by the Respondent to take any action at or around the time it became aware of the issue, its failure to raise the issue at the time of dismissal as a reason for dismissal, together with the absence of that reason in the employer response form filed in the Commission, is all consistent with the employer having, or taken to have, condoned the misconduct in which the Applicant had engaged.

[17] If an employer condones an employee’s misconduct, then at common law the right to summarily dismiss the employee for that misconduct will be treated as having been waived.²⁸ For there to be a condonation of misconduct, the effect of which is to have waived the right to summarily dismiss an employee for the misconduct, the employer must have had full knowledge of the employee's misconduct; with that knowledge, the employer retains the employee in its service; and having made the election to retain the employee, the employer deliberately abandons its right to summarily dismiss the employee.²⁹

[18] It seems to me on the evidence described above, each of these elements is present in the instant case. The Respondent had full knowledge of the Applicant’s misconduct. It had that knowledge as early as 3 February 2020 and certainly no later than 6 January 2020. It did nothing vis-à-vis the Applicant in relation to that knowledge. It thereafter and until 4 May 2020 (a period of three months since acquiring the requisite knowledge) continued the employment of the Applicant. It had several further opportunities to deal with the issue. First, on or around 14 April 2020 which it issued several warnings. Second, on or around 16 April 2020, when it suspended the Applicant. That the Respondent made the election seems to me also evident from the fact that it did not set out the misconduct as a reason for the dismissal in his letter of termination dated 4 May 2020. Having made the election it seems to me on the evidence that it also deliberately abandoned its right to summarily dismiss the Applicant for the misconduct. This is also evident from the fact that the misconduct is not cited by the Respondent as a reason for dismissal in the letter of termination. I do not accept Ms Goss’ explanation that the issue was bundled up in the reference to “[o]ngoing performance issues and failure to appear for meeting requests regarding those performance issues” as set out in the letter of dismissal.³⁰ First, the conduct alleged can on no account be described as a performance issue. It relates to the Applicant’s conduct. The Respondent itself describes the alleged conduct as serious misconduct in its submission. Moreover, Ms Goss later conceded that it was a conduct issue.³¹ Second, there is no evidence of any step taken by the Respondent to notify the Applicant that it regarded the issue as a performance issue or advise him of the particulars of that issue. It is clear that the allegation was never put to the Applicant by the Respondent.³²

[19] This is not a case of a lapse of time between the misconduct and its discovery by the Respondent, which would not amount to condonation and waiver. Nor is this a case where the misconduct was discovered after the termination of the Applicant’s employment in which case the Respondent would be permitted to rely on the misconduct about which it had no knowledge at the time of the dismissal, to justify the dismissal. I am therefore comfortably satisfied that there has been a condonation and waiver in the relevant sense.

[20] By itself the misconduct for which there has been condonation and waiver, will not provide a valid reason for the Applicant’s dismissal because it cannot be said in those circumstances that reason is a sound, defensible and well-founded reason for dismissal. Having been condoned and waived, the misconduct no longer justified the dismissal nearly 4 months after the misconduct was known to the Respondent. However, it seems clear that account may be taken of previously waived misconduct in determining whether fresh misconduct justifies summary dismissal.³³ Put another way, it seems to me that the misconduct for which there was condonation and waiver might nonetheless be relevant in assessing whether overall dismissal was harsh and unjust and unreasonable.

[21] I turn then to consider the other reasons said to provide a valid reason.

Dishonesty regarding periodical cleaning work that was required to have been performed at schools within his region

[22] As with the misconduct concerning the direction given by the Applicant to the two employees discussed earlier, this allegation, a serious one since it is concerned with “dishonesty”, did not find its way into the termination letter of 4 May 2020 nor into the employer’s response filed in the Commission as a reason for dismissal. It made its debut as a reason for dismissal in the Respondent’s submissions filed after the Applicant had filed his merits case.

[23] The substance of the allegation of dishonesty seems to arise from discussions that are said to have taken place between 21 January 2020 and 25 January 2020 between, inter alia, Mr Toghian and the Applicant.³⁴ The substance of the discussions concerned outstanding elements required to be completed during periodical cleaning of certain schools and the Applicant’s staffing requirements to complete those elements. It is suggested in Mr Toghian’s evidence that the Applicant had communicated to Mr Toghian that he had only one school to complete, that he only required two cleaners to complete the work on Sunday, 26 January 2020 and that in fact he was utilising six cleaners.³⁵ The Applicant disputes Mr Toghian’s evidence and says that he told Mr Toghian that he had a couple of the elements to complete in three schools, and that he did not tell Mr Toghian that he only needed two cleaners on Sunday but rather that he only required two cleaners for the public holiday.³⁶ During the cross-examination of the Applicant, it was not put to him that he had been dishonest, but merely that he had advised that he had minimal outstanding cleaning work and that he had requested two cleaners.³⁷

[24] There is a discrepancy in the evidence as to whether the Applicant had said that he had only one school to complete or as the Applicant contends, that he had a couple of elements to complete at three schools. The contention put to him during cross-examination that he had suggested that he had minimal outstanding work, could equally be said to apply to the first as well as the second contention as to what it is that the Applicant had said. Ultimately this would involve a relative assessment based upon the number of schools overall within the Applicant’s responsibilities that required the periodical cleaning. No evidence was led about this. As to the requirement for two cleaning staff I am not persuaded on the evidence that the Applicant had said that he only required two cleaning staff to complete periodical cleaning. I accept that it is equally plausible that he said that he required two cleaners to work the public holiday, which is consistent with that which had occurred. Moreover, the suggestion that the Applicant was being dishonest is not borne out by the fact that it was the Applicant who told Mr Toghian that he was using more than two cleaners during their conversation on about 26January 2020,³⁸ because such conduct is inconsistent with the Applicant having earlier been dishonest, in the sense that he deliberately misled the Respondent about the number of staff that he would be using.

[25] Furthermore, as is clear from the evidence given by Mr Toghian, he had earlier told the Applicant and other supervisors to “utilise whatever resources you need, including cleaners, to complete the job”.³⁹ Taken together, I am not persuaded that the Respondent has established that the Applicant was dishonest in the relevant sense. At best there was a miscommunication as between the Applicant and Mr Toghian, but the utilisation of additional staff to complete the periodical cleaning seems, on the evidence, to have been an available authorised step which the Applicant was entitled to take and which he took. In these circumstances I am not persuaded that the allegation, made for the first time in the running of the case, provides a valid reason for the Applicant’s dismissal.

Damaging a company vehicle and not reporting it

[26] The issue here is a contention that the Applicant failed to report damage that had occurred to a company owned vehicle whilst the Applicant was driving the vehicle to management. There is no contest that the Applicant reported the damage to the vehicle to the Accident Management Centre, which is operated by Fleet Partners (or the insurer) and which manages the Respondent’s vehicles.⁴⁰ The Applicant had agreed to abide by a document titled “Agreement for Issue/Use of Company Motor Vehicle” (Vehicle Agreement). Among the various obligations that fall upon an employee under that agreement, the employee undertakes “to report any accident involving the vehicle and any defect, which may develop from time to time, to the National Fleet Controller or other authorised Company representative or his nominee.”⁴¹ As indicated, the Respondent’s motor vehicle fleet is managed by “Fleet Partners” which issues drivers with a driver’s guide. The guide contains information about how to manage motor vehicle accidents including, an instruction to obtain details of the other driver involved and ensuring that liability is not admitted. A form for an employee to complete setting out the details of the motor vehicle accident and a 1800 telephone number to call to report the accident is also contained therein. It is uncontroversial that the Applicant did this. That is, he completed and lodged the form. The Respondent was not able to tell me who the National Fleet Controller was in the organisation to which reference is made in clause 2f of the Vehicle Agreement.⁴²

[27] It is also uncontroversial that the Applicant received a warning for the failure to report the motor vehicle damage to management on about 14 April 2020.⁴³ Thus the matter had been dealt with by the Respondent. In the circumstances the Respondent accepted that this issue is not a matter that could properly found a valid reason for dismissal and at best it is to be taken into account in assessing whether the Applicant has been warned in relation to his performance or perhaps his conduct in assessing overall whether the dismissal was harsh unjust or unreasonable.⁴⁴

[28] In any event it is not as though the Applicant sought to hide the fact that there had been damage to the motor vehicle. The Applicant reported it as set out in the driver’s guide issued to him. That he did not also report it to the National Fleet Controller, a person the Respondent was unable to identify during the hearing or since, is not in the circumstances sufficiently serious to justify the warning that was issued. There is no suggestion that he deliberately decided not to report the accident to the National Fleet Controller. It was a case of inadvertence and required no more than a reminder to the Applicant that he should do so.

Failing to attend meetings or respond to allegations

[29] The substance of this allegation appears to be in two parts. The first arises from an investigation Ms Goss was conducting into allegations made by the Applicant and his failure to attend scheduled meetings in February 2020. The second arises from a failure to attend meetings to discuss “performance issues” following his suspension from duty on 16 April 2020 and a requirement that he attend a meeting scheduled for 17 April 2020.

[30] As to the first, Ms Goss gave the following evidence:

• she conducted an investigation based on a complaint received from the Applicant on 31 January 2020 that Mr Toghian bullied the Applicant and that Mr Toghian was stealing as he had his own business;⁴⁵

• on 3 February 2020 she had requested the Applicant to participate in the investigation and a meeting had been scheduled for 1:00 pm by telephone and that she confirmed the meeting by email;⁴⁶

• the Applicant did not attend the scheduled meeting although he had been in the office earlier that day and that he did not answer calls or text messages sent by her to him at around the scheduled time for the meeting;⁴⁷

• on 4 February 2020 the Applicant was requested to provide further information about his complaint and a further request for a meeting was sent and scheduled for 10:00 am on 6 February2020;⁴⁸

• the Applicant did not attend the scheduled meeting on 6 February 2020 and he did not provide the further information requested. Ms Goss proceeded to conclude the investigation on the basis of the information she had to hand.⁴⁹

[31] There is some dispute about whether the Applicant attended the scheduled meeting at a later time and whether there was some confusion about his attendance but I need not resolve those conflicts because, for the reasons which follow, I do not consider the circumstances of his non-attendance warranting any disciplinary action at all nor do I consider the matter to be of sufficient moment to warrant its consideration as part of determining whether there was a valid reason for the Applicant’s dismissal.

[32] First, the scheduled meetings were arranged for the purposes of enquiry into allegations made by the Applicant. If the Applicant failed to attend that meeting then it is only the Applicant who suffers an adverse consequence, namely that his allegations cannot properly be investigated.

[33] Second, both the email invitation of 3 February 2020 (appearing twice noting variously a meeting scheduled for 1:30 pm and 1:00 pm) are not accepted by the Applicant.⁵⁰ The same may be said for the meeting scheduled for 6 February 2020 which again is in the form of an invitation to attend the meeting to which no response is received.⁵¹ Thus, there was an underlying assumption by Ms Goss that the Applicant would attend which is unsupported by the evidence because the Applicant did not confirm that he would attend. The Applicant did not accept the invitations to attend. Thus, it can hardly be said that he failed to attend a meeting he never agreed to attend.

[34] Third, there is nothing in the evidence which suggested a direction that he attend has been given. It cannot be said therefore that there was a failure to attend a meeting by the Applicant in relation to which there was an obligation that he attend by reason of a direction given.

[35] Fourth, apart from concluding the investigation upon the material Ms Goss had to hand and advising the Applicant of the outcome, no further step is taken vis-à-vis the Applicant in respect of his non-attendance at the meetings to which he had been invited. He is not been counselled or warned about his failure to attend. It is thus somewhat surprising now that this matter is elevated to the status of founding part of the valid reason for dismissal. It did not then and does not now reach that status or anywhere near it.

[36] As to the second issue, it is plain from the evidence that the Applicant’s inability to attend the scheduled meetings to discuss matters relating to the issues that led to the suspension from duty on 16 April 2020 are explained by illness for which there is a valid medical certificate.⁵² The Applicant’s inability to attend meetings in connection with the 16 April 2020 suspension between the period of 17 April 2020 and 1 May 2020 cannot provide a valid reason for dismissal since the Applicant was certified by a medical practitioner as being unfit to attend for work.

Failing to answer calls and be contactable during working hours

[37] The evidence surrounding the substance of this allegation is, to say the least, scant. The Respondent did not produce any telephone records to verify the number of calls that were made to the Applicant, by whom and at what time and date. For his part the Applicant says that the calls made that were unanswered were those that were made outside of his normal working hours or while he was driving from one location to another.⁵³ The letter of dismissal does not deal with multiple failures to return calls made to him during working hours but rather alleges that a reason for his dismissal was a failure “to return for phone calls in regards to return to work”.

[38] In his evidence, Mr Toghian cited the following as examples of the failure to answer calls issue occurring between 26 January 2020 and 28 January 2020:

“23. Despite Ajays aggression and attitude I explained to him I was going to call Aysen and try to get him a carpet machine to assist him as it was now the issue at hand. I then contacted Aysen to organise for the machine pick up and then rang Ajay a number of times but he would not answer and declined my calls. I then notified Shaun with the sequence of events.

25. Following this I was instructed to visit his sites as a precautionary action as it may be that elements he had reported as completed were not.

26. The following day on Monday 27th of January 2020 throughout the day, I tried to contact Ajay with no response. I received a call at around 6 pm from Ajay stated that he does not have a white pad to use for the gym floor at Rosehill Secondary College. I then asked him why does he need it when he listed this school as completed. Also how it was outstanding when Ajay had a floor specialist cleaner from our Uni of Melbourne contract to complete this element. Ajay had previously confirmed it was completed. Ajay had responded that he still needed a white pad and he is only now conducting a CMO at this school. I responded to him that regardless this is too late to bring this up now you will have to run a red pad over the gym floor to get rid of the haze which he responded that he will do so that night.

27. On Tuesday 28th Tuesday morning approximately 9am I tried to contact Ajay several times but he did not respond. I tried to message him also and he didn’t respond. Then I received a call from one of his schools Rosamond Special School reporting that the administration building has not been touched. I then went to the schools to resolve myself as I could not get in touch with Ajay to have him direct any of his cleaning team members to rectify.

28. Then I was also contacted by Rosehill Secondary College and they reported that the gym floor had not been touched and I was requested to attend to site. I then tried to contact Ajay as this was another of his schools and he still did not respond or answer my calls or texts.

29. Later when I had to visit the school the room D6 was not cleaned and tables had not been cleaned since last day of term 4. I then visited the gym which wasn’t completed either. Further as I was exiting the school, I was then told that toilet paper has not been replenished, which was extremely disappointing given the fact he gave the school 100% in the audit.

30. I was not able to contact Ajay via phone to discuss throughout the day. I emailed him regarding the reported issues at Rosehill Secondary College. To those emails he began to respond in an inappropriate way. He responded cc’ing the school representatives. I directed him to stop doing that multiple times via phone and email both attached, and he did not listen. As a senior supervisor, his actions were inappropriate and jeopardised our relationship with our client.”⁵⁴

[39] Several observations may be made about this evidence. First, the frustration appears to be that the telephone calls made by Mr Toghian to the Applicant were not answered immediately. Secondly, the evidence is replete with subjective and self-serving analysis of the underlying motivation of the Applicant. For example, the suggestion at [24] that the Applicant “would not answer” and that he “declined my calls”. Similarly, at [27] and [28] it is suggested that the Applicant did not respond to calls made and texts sent when it is clear at [30] that the Applicant did respond. It is just that the Applicant did not respond immediately that appears to be the concern. Thirdly, despite these concerns there is no evidence that the Applicant received any counselling or warning about his failure to respond or to respond immediately to these attempts at contacting him. Despite the various warnings given to the Applicant on or about April 2020 this issue does not feature in any of them and did not receive any real attention during cross-examination of the Applicant. I am not persuaded on the evidence that the examples given above make good the allegation.

[40] The only other example given in the evidence is found in the statement of Mr Le Feuve as follows:

“7. Ajay advised he had been tested for COVID 19 and isolated himself but did not report this correctly or provide evidence that was requested. There are strict protocols in place for COVID 19 and this was not followed in anyway. Ajay in this period refused to answer his phone at all. We made many attempts to try and make contact with Ajay to no avail.”

[41] As should be evident from the evidence contained in the above paragraph, this was a period during which the Applicant was not at work because he was self-isolating and so can hardly support an allegation that the Applicant failed to answer calls and be contactable during working hours.

[42] Overall, I am not persuaded of the evidence that this allegation has been made out and so does not provide a valid reason for dismissal nor does it provide an example of performance issues which taken together found a valid reason for dismissal.

Failing to follow procedures regarding COVID-19 testing and reporting

[43] The particulars of this allegation are also unclear. There is no evidence about the particular procedure that is to be followed and on which the Respondent relies for the purposes of making good this allegation. All that is apparent from the evidence is that in an email dated 29 March 2020 from Ms Nerida Robertson, which makes the suggestion that if the Applicant had undertaken a COVID-19 test, he should ensure that he follows any advice to isolate and that if he is claiming sick leave for any of the period of isolation he should provide a medical certificate.⁵⁵ The Applicant was also advised in an earlier email on the same date sent by Ms Robertson that as he had been tested for COVID-19 he would not be able to return to work until the Respondent had been provided with a medical clearance in line with his current test. He is asked to provide an outline of the location at which and date on which the test was conducted.⁵⁶ The Applicant had provided a medical certificate issued on 21 March 2020 stating that he was suffering from a medical condition and would be absent from work from 21 March 2020 until 4 April 2020.⁵⁷ The allegation also did not make its way into the termination letter. During the cross-examination of the Applicant, it became evident that the procedure to which the Respondent refers in the allegation appears to be a requirement that the Applicant provide the Respondent with his COVID-19 test results.⁵⁸ The Applicant returned to work sometime between 6 April 2020 and 14 April 2020 and most likely on 14 April 2020⁵⁹ and as is evident from my earlier discussion he proceeded on a further period of sick leave from 17 April 2020 to 1 May 2020 inclusive. The circumstances of his return to work are not entirely clear, but it appears that he provided a clearance certificate to the Respondent.⁶⁰ There is no evidence that the Respondent required any further information and there is certainly no evidence of any further information sought of him in relation to the COVID-19 test made after his return to work. In the period following his return to work until his suspension and subsequent sick leave, several warnings were issued to the Applicant as a “job lot”, but none addressed this allegation. The allegation also did not find its way into the letter of dismissal. This is likely because the allegation is founded on quicksand rather than firm ground. I am not persuaded the allegation has been made out and so does not provide a valid reason for dismissal nor a solid foundation for concluding that it relates to conduct or performance that, when taken together with other matters, can provide a valid reason for dismissal.

Failure to attend work as required

[44] This allegation concerns the period following the expiration of the Applicant’s absence following his COVID-19 test. I have earlier noted the Applicant appears to have returned to work most probably on 14 April 2020. Le Feuve, who apparently had a conversation with the Applicant on or about 6 April 2020 about the Applicant returning to work, gave no evidence that the Applicant had failed to return to work as required.⁶¹ Ms Goss’ hearsay account suggests that on about 6 April 2020 Mr Le Feuve contacted the Applicant reminding him that today (6 April 2020) was the Applicant’s schedule data return and that he needed to provide a clearance to work certificate and have reported to the office. Ms Goss suggests that the Applicant did not respond to the communication and did not return to work. She attaches to her statement text messages exchanged between Mr Le Feuve and the Applicant on that day.⁶² The extracted text messages do not bear this out. The relevant text message from Mr Le Feuve does not say he is required to attend for work but in fact states the opposite. It says “you are not to start work unless HR or myself have received a clearance certificate and you have met with either of us in the office”.⁶³ As is evident from the extract provided the Applicant did respond⁶⁴ and Mr Le Feuve thereafter reiterates that he is to obtain a doctor’s certificate to clear him for work.⁶⁵

[45] On the day the Applicant returned to work he is issued with several warnings. None relate to any failure to attend for work as required. Two days later, on 16 April 2020, the Applicant was stood down with pay. The matters at issue which prompted the stand down notice (and which were proposed to be discussed at a subsequent meeting) were said to be, a failure to follow instructions, displaying aggressive behaviour, failure to follow ISS process and breach of safety.⁶⁶ The issue of a failure to attend work as required is not mentioned. This appears only in the letter of dismissal. The Applicant gave evidence that on or about 6 April 2020 he provided a medical certificate to Mr Le Feuve.⁶⁷ There is no evidence of any direction thereafter for the Applicant to return to work with which he failed to comply. I am therefore not persuaded on the evidence that this allegation is made out.

Inappropriate communication

[46] As with an earlier allegation, this allegation appears to be two-pronged. The first concerns what is said to be an inappropriate email to staff of client schools on 28 January 2020. The second appears to concern the use of inappropriate language namely during a telephone call from the Applicant, Ms Goss and Mr Le Feuve during which the Applicant is said to have said and repeated “bull shit” loudly and aggressively whilst Ms Goss was endeavouring to speak.⁶⁸ Dealing with the second issue first, although the Applicant denies the conduct, it is common ground that he received a warning for it.⁶⁹ I accept the evidence of Ms Goss and Mr Le Feuve that the conduct as alleged occurred and their evidence receives some corroboration from the fact that the warning was issued. As with the earlier motor vehicle damage issue, this allegation had been dealt with by the Respondent. In the circumstances this issue is not a matter that could properly found a valid reason for dismissal and at best it is to be taken into account in assessing whether the Applicant has been warned in relation to his performance or perhaps his conduct in assessing overall whether the dismissal was harsh, unjust or unreasonable.

[47] Returning to the first issue, the substance of the allegations is set out in Ms Goss’ evidence as follows:

“17. On Tuesday 28th of January 2020 Mr Toghian attempted to contact Mr Dalby Salu several times commencing from 9amand calls were unanswered. Mr Toghian text message Mr Dalby Salu and did not get replies.

18. Mr Toghian was contacted by Rosehill Secondary College on Tuesday 28thof January 2020 regarding the Gym floor not being clean and other rooms not clean. Mr Toghian attempted to call Mr Dalby Salu again, regarding the schools feedback and to understand the issues to be able to respond to the school.

19. Mr Toghian then emailed Mr Dalby Salu to question and understand the complaints from the school to be able to rectify and respond. Mr Dalby Salu in responding to Mr Toghian cc’d into the emails the school representatives. Mr Toghian immediately called Mr Dably Salu to direct him it was inappropriate and to cease cc’ing in the school while discussing the complaints from the school. Mr Dalby Salu continued the inappropriate communication that at times didn’t make sense and were blaming Mr Toghian for the issues through random statements in emails that he continued to include the client and customers in on. Mr Toghian escalated to Mr LeFeuvre to contact Mr Dalby Salu to cease including the client in emails discussing the issue.

20. Mr Toghian referred to Mr LeFeuvre for direction and Mr LeFeuvre considered this and the preceding days actions and behaviour by Mr Dalby Salu to be a performance issue, an increasing risk and requiring investigation. Mr Toghian and Mr LeFeuvre contacted me as People and Culture Manager for advice regarding the stand down and best way to proceed with performance management based on the issues. Mr LeFeuvre instructed Mr Toghian to stand Mr Dalby Salu down pending further investigation.”⁷⁰

[48] The version of events given by Ms Goss, who was not party to the email exchange, is not borne out by the email exchange,⁷¹ which in chronological order (with the last email appearing first) is set out below:

“From: Toghian, George
Sent: Tuesday, 28 January 2020 1:21 PM
To: Dalby Salu, Ajay
Cc: LeFeuvre, Shaun
Subject: Re: Toilets off Main Staffroom

Why are you responding to everyone at the school, I said to you he is to go when you have notified me with who you are changing at the school he can go in 1 week legally to another school near by. Do you listen to anything I’ve said or instructed?

Pick up the phone, stop declining it.

Kind Regards,

George Toghian
Western Regional Manager

From: Dalby Salu, Ajay <[email protected]>
Sent: Tuesday, January 28, 2020 1:18 pm
To: Sutherland, Lee L; Toghian, George
Cc: Wright, Judith J
Subject: Re: Toilets off Main Staffroom

George you are the one mentioned he have to go back to school for one more week then only you decide. And you told me in the meeting last week

From: Sutherland, Lee L <[email protected]>
Sent: Tuesday, January 28, 2020 1:05:45 PM
To: Dalby Salu, Ajay <[email protected]>; Toghian, George <[email protected]>
Cc: Wright, Judith J <[email protected]>
Subject: RE: Toilets off Main Staffroom

So the cleaner that was here this morning who saw our maintenance man is a New Supervisor! (no details received here yet)

The cleaner didn’t do his job properly and neither did the supervisor!?

Lee

From: Dalby Salu, Ajay <[email protected]>
Sent: Tuesday, 28 January 2020 12:55 PM
To: Sutherland, Lee L <[email protected]>; Toghian, George <[email protected]>
Subject: Re: Toilets off Main Staffroom

Dear Lee

I had instructed Sudip the regular cleaner who comes in the morning (6.30am)for all the toilet tissues filling and cleaning and opening gates and lockers. The new cleaner, observed by the maintenance guy this morning was there to check if Sudip completed his job as he have a habit of skipping work or doing it in the wrong way. It seems to me that the cleaner repeated the mistake again even after too many instructions and warnings. I am assuring you that I will take strict disciplinary actions. The cleaner came to check toilets cleaning got sidetracked by the maintenance guy and he opened all the gates and shutters and left after.

From: Sutherland, Lee L <[email protected]>
Sent: Tuesday, January 28, 2020 12:38:04 PM
To: Toghian, George <[email protected]>; Dalby Salu, Aja <[email protected]>
Subject: Toilets off Main Staffroom

I don’t understand why but the toilets off the main staffroom don’t appear to have been checked before today commencement of business. We have all staff in attendance today approximately 100 but there was NO toilet paper in the main staff toilets and the back of the cisterns are covered in dust. I have been and placed toilet paper in the toilets and extra rolls, can we please ask the cleaners to remember to clean ALL toilets EVERY DAY and that they have toilet paper, this needs to be monitored daily.

Regards

Lee Sutherland
Rosehill Secondary College
Sapphire Street
Niddrie 3042
Ph: 9337 2488
Fax: 9331 0525”

[49] It is clear from the chain of emails above that the first in time email from Ms Sutherland was sent to both Mr Toghian and the Applicant. In my view there is nothing inappropriate about the Applicant responding to Ms Sutherland in the second in time email since she was raising issues in an email addressed to the Applicant about the quality of cleaning in a school under his supervision. There is nothing in the chain of emails that suggested Mr Toghian took issue with that response although it is subsequently suggested that it was inappropriate for the Applicant to have done so. Nonetheless as is clear from the tone and content of the email from Mr Toghian, he was aggrieved not by the Applicant’s email to Ms Sutherland at 12:55 pm but rather by the fact that the email from the Applicant at 1:18 pm which appears in content to have been directed only to Mr Toghian was copied into the school’s personnel. In this regard I agree that given the content of the 1:18 pm email, it should have been confined to Mr Toghian. However as is clear from Mr Toghian’s 1:21 pm email, the Applicant was admonished.

[50] Ms Goss’s evidence indicates that the Applicant was subsequently suspended (on or about 28 January 2020) pending investigation over that and other issues, but this suspension was short lived. In any event the Applicant continued to work after the short-lived suspension and no further step is taken in relation to this issue nor it seems about the other issues concerning the altercation with Mr Toghian at the Derrimut office. 72 Neither issue found its way into the letter of dismissal. It seems to me that Mr Toghian’s displeasure at the communication was made clear to the Applicant at the time that it occurred. There is no suggestion that the Applicant repeated the conduct about which Mr Toghian was aggrieved. It seems to me that it began and ended with the last of the emails and there was no further action taken by the Respondent except for a short lived suspension and on the evidence nothing came of that suspension. I am not persuaded on the evidence that the allegation as stated has been made out. To the extent that the allegation is concerned with copying an email directed to Mr Toghian about Mr Toghian to personnel of the school, I am satisfied that conduct occurred, that it was inappropriate, but was not so serious as to amount to a valid reason for dismissal. It may be taken into account with other matters in assessing whether overall the Respondent had a valid reason for dismissal.

Other matters

[51] As earlier noted, the Applicant was suspended or stood down with pay on 16 April 2020. No meeting to discuss the matters which led to the suspension was held because the Applicant was medically certified as being unfit to attend work. The Respondent did not attempt to communicate with the Applicant in writing any concerns that it had about the matters which led to the suspension or to give the Applicant an opportunity in writing to respond to those concerns.⁷³ There is no evidence that the Respondent gave the opportunity to the Applicant to respond to the matters set out in its letter of dismissal, either orally or in writing, before it issued the letter on 4 May 2020. It plainly did not give the Applicant an opportunity to respond to additional allegations on which it now relies, but which were not contained in the letter of dismissal.

Whether dismissal was unfair

Legislative background

[52] In considering whether a dismissal was harsh, unjust or unreasonable, the Commission must consider the following factors outlined in s.387 of the Act:

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

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

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

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

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

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

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

(h) any other matters that the FWC considers relevant.”

[53] Having regard to the structure and content of s.387, in deciding whether a dismissal was harsh, unjust or unreasonable, each of the matters identified in that section must be taken into account. They are mandatory relevant considerations.

[54] Moreover, each matter must be given appropriate weight having regard to the factual findings earlier made and taking into account the submissions of the parties. A statutory requirement that a matter be taken into account means that the matter is a ‘relevant consideration’ in the sense discussed in Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (Peko-Wallsend),⁷⁴ that is, it is a matter which the decision maker is bound to take into account. The obligation to take into account the matters set out at s.387 means that each of the matters must be treated as a matter of significance in the decision-making process.⁷⁵ As Wilcox J said in Nestle Australia Ltd v Federal Commissioner of Taxation:⁷⁶

“To take a matter into account means to evaluate it and give it due weight, having regard to all other relevant factors. A matter is not taken into account by being noticed and erroneously discarded as irrelevant”.77

[55] The weight given to a particular matter is ultimately a matter for the Commission subject to some qualification. As Mason J explained in Peko-Wallsend:

“It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power. ... I say "generally" because both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is "manifestly unreasonable".78

[56] The meaning of the words“harsh, unjust or unreasonable” in the context of a dismissal was explained in Byrne & Frew v Australian Airlines Ltd⁷⁹ by McHugh and Gummow JJ as follows:

“. . . It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”⁸⁰

[57] Ultimately, it is the matters set out in s.387 of the Act to which regard must be had in assessing whether a particular dismissal was harsh, unjust or unreasonable. I consider these matters below.

Valid reason – s.387(a)

[58] Where, as here, a valid reason for dismissal is said to relate to conduct (although not confined to conduct) the Commission must find that the conduct occurred and that the conduct justified dismissal. The essence of a valid reason is that the reason is a sound, defensible or well-founded reason – one that is not capricious, fanciful, spiteful or prejudiced.⁸¹ Whether conduct which founds a valid reason occurred is to be determined based on the evidence in the proceedings assessed on the balance of probabilities taking into account the gravity or seriousness of the allegations.⁸² The test is not whether the employer, after a sufficient investigation, had a reasonably held belief that the conduct occurred.⁸³ A reason would be valid because the conduct occurred and it justified termination. There would not be a valid reason for termination because the conduct did not occur or it did occur but did not justify termination. 84 It is not necessary to show the misconduct as sufficiently serious to justify summary dismissal on the part of the employee in order to demonstrate that there was a valid reason for the employee’s dismissal (although established misconduct of this nature would undoubtedly be sufficient to constitute a valid reason).85 An assessment of the degree of seriousness of misconduct which is found to constitute a valid reason for dismissal for the purposes of s.387(a) will be a relevant matter under s.387(h). In that context the issue is whether dismissal was a proportionate response to the conduct in question.86

[59] Although there is some overlap in the allegations as between conduct and performance, for present purposes I consider that the allegations relating to the public holidays issue, the reporting of damage to motor vehicle issue, the failure to attend meetings and respond to allegations and the allegation of inappropriate communications are all allegations of conduct. For the reasons stated in [10] – [21] the public holidays allocation was known to the Respondent as early as 3 February 2020 and the Respondent failed to act on it and continued the Applicant’s employment notwithstanding the conduct alleged. Consequently, there has been a waiver of the right to dismiss summarily for the conduct alleged, and as already noted the conduct does not, in the circumstances, amount to a valid reason for dismissal. For the reasons stated in [26] – [28] the conduct the motor vehicle accident has been dealt with in a warning issued on 14 April 2020. As I have already indicated I do not consider that the conduct justified a warning but, in any event, this cannot now be relied upon and does not sound a valid reason for the Applicant’s dismissal. For the reasons stated in [29] – [36] the allegation concerning the Applicant’s failure to attend meetings and to respond to allegations is not made out and therefore does not provide a valid reason for dismissal. As to the allegations concerning inappropriate communications in which the Applicant engaged, for the reasons stated in [46] – [50] the inappropriate communication concerning the repeated use of “bull shit” is on evidence made out but was also the subject of a warning issued on 14 April 2020, and does not now provide a valid reason for dismissal. As to the email communication, for the reasons stated it was inappropriate for the Applicant to have copied personnel of the school into the communication. However, the conduct is not so serious as to warrant a conclusion that it provides a valid reason for dismissal. A warning for the conduct would be justified.

[60] As to the performance related issues, the allegations that the Applicant was not contactable during working hours is for the reasons stated in [37] – [42] not made out therefore does not provide a valid reason for dismissal. The allegation that the Applicant had failed to follow procedures relating to his this COVID-19 test is for the reason stated in [43] not made out and therefore does not provide a valid reason for dismissal. Similarly, for the reasons stated in [44] – [45] the allegation that the Applicant failed to attend for work is not made out and does not provide a valid reason for dismissal.

[61] In the circumstances there is no valid reason for the Applicant’s dismissal related to the Applicant’s conduct or capacity and so the absence of a valid reason weighs in favour of the conclusion of the dismissal was unfair.

Notification of the reason for dismissal and opportunity to respond – s.387 (b) – (c)

[62] Notification of a valid reason for termination should be given to an employee protected from unfair dismissal before the decision is made,⁸⁷ in explicit terms,⁸⁸ and in plain and clear terms.⁸⁹ This is an element which may be described as procedural fairness in order that an employee may respond to the reason. Procedural fairness requires that an employee be notified of the reason for the dismissal before any decision is taken to terminate employment in order to provide them with an opportunity to respond to the reason identified. Section 387(b) and (c) would have little practical effect if it was sufficient to notify an employee and give them an opportunity to respond after a decision had been taken to terminate employment.⁹⁰ An employee protected from unfair dismissal should also be given an opportunity to respond to any reason for dismissal relating to the employee’s conduct or capacity.

[63] Just as the question to be addressed by s.387(a) of the Act is whether there was a valid reason for the Applicant’s dismissal, assessing whether notification and the opportunity to respond involves consideration of the valid reason as identified under s.387(a).

[64] Although I have concluded that there is no valid reason for dismissal related to the Applicant’s performance or conduct, it is plain that the reasons upon which the Respondent relies in its dismissal letter of 4 May 2020 were not notified to the Applicant before the dismissal took effect and he was certainly not given any opportunity to respond to any of those reasons. Similarly, the additional reasons on which the Respondent relied during the conduct of the hearing into the Applicant’s unfair dismissal remedy application were not notified to the Applicant before his dismissal took effect nor was he given an opportunity to respond to them.

[65] The Respondent accepted that the Applicant was not notified of the reasons for his termination prior to the dismissal.⁹¹ The Respondent contended that the Applicant was given an opportunity to respond to the reasons for terminating his employment at a meeting on 17 April 2020 but that he failed to attend that meeting. This is respectfully, a nonsense submission. The Respondent knows full well that the Applicant was unfit for duty on that day and that his absence on that day and until 1 May 2020 was covered by a medical certificate. How in those circumstances the Applicant was given an opportunity to respond to the reason for his dismissal escapes me. He plainly was not and as I had earlier noted the Applicant did not provide but could have provided the Applicant with an opportunity to respond to the reasons for his dismissal in writing at any time during the period between 17 April 2020 and the date of his dismissal on 4 May 2020. The procedure adopted by the Respondent in failing to give the Applicant any opportunity to respond to any of the allegations which it relied is a matter that weighs in favour of a conclusion that the Applicant’s dismissal was unfair.

Any unreasonable refusal by the employer to allow the person to have a support person – s.387(d)

[66] If an employee protected from unfair dismissal has requested that a support person be present to assist in discussions relating to the dismissal, the employer should not unreasonably refuse to allow that person to be present. This consideration is directed to an employer’s unreasonable refusal to allow a support person to be present. It is not concerned with whether an employer offered the employee such an opportunity. In most cases, this section will be engaged if the employee asks for a support person to be present and the employer refuses the request.⁹² It may be appropriate, in some cases, to consider the overall circumstances in which meetings to discuss an employee’s performance, capacity and conduct or dismissal occurred to properly determine whether there was an unreasonable refusal by the employer to allow the employee to have a support person present.

[67] In the instant case there were no discussions relating to the dismissal and so there was no opportunity for the Applicant to request to have a support person to assist him and so no refusal. In the circumstances this consideration weighs neutrally.

Warnings regarding unsatisfactory performance – s.387(e)

[68] If an employee protected from unfair dismissal is dismissed for the reason of unsatisfactory performance, the employer should warn the employee about the unsatisfactory performance before the dismissal. Unsatisfactory performance is more likely to relate to an employee’s capacity than their conduct.⁹³ As is apparent from the earlier discussion, the Respondent contended the Applicant’s dismissal related both to his conduct and to his unsatisfactory performance. Although most of the allegations were not made out, the Respondent issued three warnings to the Applicant on 14 April 2020, two of which relate to conduct rather than performance. The third, which sets out that the Applicant “refuses to communicate to a manner that assists ISS in operationally” might be said to relate to the Applicant’s performance. 94 As the document indicates it was given as a verbal warning. I take it into account noting that it weighs slightly against a conclusion that the Applicant’s dismissal was unfair.

Impact of the size of the Respondent on the procedure followed – s.387(f)

[69] The consideration in s.387(f) is not concerned with standards but with the likely impact on the procedures followed of the size of the employer’s enterprise. The Respondent operates a business which is not insignificant in size. It has sufficient resources to enable it to properly understand its rights and obligations in connection with employment and dismissal of staff. There is no suggestion that the size of the Respondent’s enterprise impacted negatively on the procedure that it adopted in effecting the dismissal or investigating the allegations. Indeed, the Respondent contended that its size would unlikely have negatively impacted on the procedure followed in effecting the dismissal.⁹⁵ In the circumstances this consideration weighs neutrally.

Absence of dedicated human resources management specialist/expertise on procedures followed – s.387(g)

[70] The Respondent has dedicated human resources specialists who supported and guided the procedures in effecting the dismissal. This consideration is concerned with “the degree to which the absence of dedicated human resources management specialists or expertise” would be likely to have the identified impact. Here there was no such absence and so this consideration weighs neutrally.

Any other matters that the Commission considers relevant – s.387(h)

[71] I consider the following matters to be relevant. First, the Applicant has been a relatively long serving employee of over eight years as at the date of his dismissal. Second, there is no suggestion that prior to 2020, there is any particular concern raised by the Respondent about the Applicant’s performance or conduct. He appears to have had until 2020, a relatively unblemished performance history. These matters weigh in favour of a conclusion the dismissal was unfair.

[72] Third, I take account of the Applicant was issued on 14 April 2020, with two warnings in relation to his conduct one of which (relating to inappropriate use of language) appears to be justified. This weighs against a conclusion that dismissal was unfair.

[73] Fourth, notwithstanding the condonation and waiver, I take account of the Applicant admitted conduct in instructing to employees of the Respondent to work a public holiday but not record their hours in the Respondent’s time record-keeping system. It is also a matter that weighs against a conclusion that the dismissal was unfair.

Conclusion

[74] Overall, notwithstanding the matters that weigh against a conclusion that the dismissal was unfair, these are outweighed by the absence of valid reason and the procedural unfairness surrounding the dismissal. The dismissal was unjust because the Applicant was either not guilty of the preponderance of conduct the subject of the allegations and there had been a condonation and waiver of the most serious of the allegations. None of the performance related allegations were made out. It was also unjust because the Applicant was not notified of the reason for his dismissal before the dismissal was effected and was not given any opportunity to respond to any of the reasons upon which the Respondent relied either in its dismissal letter or subsequently.

[75] Having observed the Applicant during the hearing I can well appreciate that the Respondent found dealing with the Applicant a challenge. But that he was challenging is not reason enough to bring about the Applicant’s dismissal or to deny him a fair opportunity to engage with and respond to allegations that are levelled against him.

[76] Therefore, for the reasons stated I consider that the Applicant’s dismissal by the Respondent was unfair.

[77] Issued concurrently with this decision are directions for the filing of further material to address the question of what remedy if any should be ordered given my conclusion. I also strongly encourage the parties to engage in discussions to see whether an agreement as to remedy might be forged and thereby negating the necessity for any further hearing. I will facilitate making available a Member of the Commission to assist the parties if the parties so desire and arrangements to that effect can be made by contacting my Associate.

DEPUTY PRESIDENT

Appearances:

A Salu on his own behalf
J Moore for the Respondent

Hearing details:

2020
Melbourne (via-video link)
27 August & 29 October

Written submissions:

Applicant, 28 August 2020, 19 November 2020 and 10 December 2020
Respondent, 20 August 2020 and 4 December 2020

Printed by authority of the Commonwealth Government Printer

1 Exhibit 1, attachment A

2 ibid

3 F3 Employer response form p 6

4 Respondent’s outline of submissions at [4] – [6]

5 Respondent's final submissions at [8]

6 ibid at [11]

7 Exhibit 1, attachment B at [2], Applicant’s final submissions at [2]; Transcript (27 August 2020) PN 152 – PN 153

8 Transcript (27 August 2020) PN 160 – PN161

9 Transcript (27 August 2020) PN 159

10 Exhibit 6 at [6]; Transcript (29 October 2020) PN327

11 Transcript (29 October 2020) PN454-PN455

12 Exhibit 6 at [6]

13 Transcript (29 October 2020) PN327

14 Transcript (29 October 2020) PN454-PN455

15 Exhibit 5 at [9]; Transcript (29 October 2020) PN195-197

16 Transcript (29 October 2020) PN136-PN139

17 Exhibit 8 at [15] and attachment 5 thereto

18 Exhibit 8 at attachment 2

19 Transcript (29 October 2020) PN 330 – PN 362

20 Exhibit 8 at attachment 6

21 Transcript (29 October 2020) PN 446 – PN 450

22 Exhibit 8 at attachment 6

23 Transcript (29 October 2020) PN425

24 Exhibit 7 at [2]

25 Transcript (29 October 2020) PN 1383- PN 1426

26 Exhibit 8 at [56] and attachment 25.1

27 Transcript (29 October 2020) PN 1383- PN 1426

28 See Federal Supply and Cold Storage Co of South Africa v Angehrn (1910) 103 LT 150; Re Clarke and Metropolitan Meat Industry Board [1967] AR (NSW) 16 at 25; Martin v South Australia (1982) 49 SAIR 269 at 284 ; McCasker v Darling Downs Co-op Bacon Association (1988) 25 IR 107; Australasian Transport Officers Association v Department of Motor Transport (1988) 25 IR 235; Pedersen v 3MP Radio (unreported, Employee Relations Commission of Victoria in Full Session, E94/0023, 8 March 1994); Mills v Industrial Fish Tasmania Pty Ltd (1993) 49 IR 416 at 429; Bowie v South Australia Brewing Co Pty Ltd (1991) 58 SAIR 357.

29 Rankin v Marine Power International Ltd (2001) 107 IR 117

30 Transcript (29 October 2020) PN1339-PN1343

31 Transcript (29 October 2020) PN1409-PN1410

32 Transcript (29 October 2020) PN1403-PN1408

33 John Lysaght (Australia) Ltd v Federated Iron Workers; Re York (1972) 14 AILR 517; McCasker v Darling Downs Co-op Bacon Association (1988) 25 IR 107 at 114; Wilson v Racher [1974] ICR 428 at 432-433.

34 see exhibit 6 at [5]-[15]

35 ibid

36 Exhibit 3 at [10] -[15]; Transcript (27 August 2020) PN 149 – PN 150

37 Transcript (27 August 2020) PN141, PN149

38 Exhibit 3 at [15]: Exhibit 6 at [14]

39 Transcript PN 460 – PN 461

40 Transcript (27 August 2020) PN 227, PN 230-PN232, pn263

41 Exhibit 2 clause 2f

42 Transcript (27 August 2020) PN 287 – PN 290 (I have listened to the audio of Mr Moore's response to my question at PN 289, and although the Transcript records his response as "Hang on (indistinct)" Mr Moore said that he can’t recall his name at the minute

43 Exhibit 8 at attachment 24

44 Transcript (27 August 2020) PN 249 – PN 251

45 Exhibit 8 at [33]

46 ibid at [34]

47 ibid at [35]

48 ibid at [36]

49 ibid at [37]

50 ibid at attachments 12.1 – 12.3

51 ibid at attachments 13.1 – 13.2

52 Transcript (29 October 2020) PN1413-PN1425; Exhibit 8 at attachments 26.1 – 26.2

53 Applicant’s final submissions at [5]

54 Exhibit 6 at [24]-[30]

55 Exhibit 8 at attachment 20

56 ibid

57 Exhibit 8 at attachment 19

58 Transcript (29 October 2020) PN13-PN63

59 Exhibit 7 at [9]; Transcript (29 October 2020) PN53-PN56, PN66

60 Transcript (29 October 2020) PN53-PN56

61 see Exhibit 7

62 Exhibit 8 at [53] and attachment 23

63 Exhibit 8 at attachment 23

64 ibid

65 ibid

66 Exhibit 8 at [56]

67 Transcript (29 October 2020) PN53-PN56

68 Exhibit 8 at [51]

69 Exhibit 8 at attachment 24

70 Exhibit 8 at [17] – [20]

71 Exhibit 8 attachments 7.1 – 7.4

72 Exhibit 8 at [20]-[24] and attachment 2 at p 2

73 Transcript (29 October 2020) PN1403-PN1425

74 [1986] HCA 40; (1986) 162 CLR 24; see also Griffiths v The Queen (1989) 167 CLR 372 at 379; Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [23]-[26] and Hasim v Attorney-General of the Commonwealth [2013] FCA 1433, (2013) 218 FCR 25 at [65]

75 See Friends of Hinchinbrook Society Inc v Minister for Environment (No 3) (1997) 77 FCR 153; Australian Competition and Consumer Commission v Leclee Pty Ltd [1999] FCA 1121; Edwards v Giudice [1999] FCA 1836 and National Retail Association v Fair Work Commission [2014] FCAFC 118

76 (1987) 16 FCR 167 cited with approval by Hely J in Elias v Federal Commissioner of Taxation (2002) 123 FCR 499 at [62] and by Katzmann J in CFMEU v FWA (2011) 195 FCR 74 at [103]

77 (1987) 16 FCR 167 at 184

78 [1986] HCA 40; (1986) 162 CLR 24 at [15], pp 39-41

79 (1995) 185 CLR 410

80 Ibid at [465]

81 Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333, (1995) 62 IR 371 at 373

82 Briginshaw v Briginshaw [1938] 60 CLR 336

83 King v Freshmore (Vic) Pty Ltd Print S4213 at [23]-[24]

84 Sydney Trains v Gary Hilder[2020] FWCFB 1373 at [26]

85 Ibid

86 Ibid

87 Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41]

88 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at [150]–[151]

89 Previsic v Australian Quarantine Inspection Services Print Q3730

90 See also Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at 151 which was dealing with the corresponding provisions in s.170CG(3)(b) and (c) of the Workplace Relations Act 1996

91 Respondent's final submissions at [13]

92 See also Fair Work Bill 2008 – Explanatory Memorandum at [1542]

93 Annetta v Ansett Australia (2000) 98 IR 233 at 237

94 Exhibit 8 at attachment 25.4

95 Respondent's final submissions at [17]

Ajay Dalby Salu v ISS Facility Services Pty Ltd