[2014] FWC 332 [Note: An appeal pursuant to s.604 (C2014/4747) was lodged against this decision - refer to Full Bench decision dated 14 May 2014 [[2014] FWCFB 5648] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Angelo Coco
v
Thuringowa Enterprise Centre Incorporated T/A The North Queensland Small Business Development Centre
(U2012/16902)

COMMISSIONER SPENCER

BRISBANE, 14 MAY 2014

Application for unfair dismissal remedy.

[1] This decision relates to an application filed in the Fair Work Commission (the Commission) by Mr Angelo Coco (the Applicant), pursuant to s.394 of the Fair Work Act 2009 (the Act). The application alleges that the Applicant was unfairly dismissed from his employment, by Thuringowa Enterprise Centre Incorporated T/A The North Queensland Small Business Development Centre (the Respondent).

[2] The application was the subject of conciliation before a Fair Work Commission Conciliator but was unable to be resolved.

[3] The matter was further allocated to the Commission, as presently constituted, for formal Arbitration. Prior to arbitration the matter was the subject of further conciliation, chaired by the Commission. The parties consented to the Commission, as presently constituted, continuing with the arbitration of the matter.

[4] Directions for the filing of material and evidence were issued. The evidentiary case of both parties was heard over one day at the Townsville Federal Courthouse.

[5] The Applicant was represented by Mr M Ascione, Lawyer. The Respondent was represented by Mr B Gaeta, Partner of Connolly Suthers Lawyers.

[6] The Commission issued a preliminary decision granting legal representation to the Respondent in this matter. 1

[7] While not all of the evidence and submissions in this matter have been referred to all of such have been considered.

Background

[8] The Applicant commenced employment on 26 October 2011 as a Business Advisor. The Applicant’s terms and conditions of employment were governed by an employment agreement of 26 October 2011. Clause 2.2 of the agreement provided that the “date of commencement of employment” is, in conjunction with item 2 of the agreement, 26 October 2011.

[9] Clause 2.1 of the agreement provided:

“The Employer appoints the Employee on a casual basis and the Employee agrees to serve the Employer as required by the Employer in the capacity specified in Item 1 of the Schedule or in such other capacity as the Employer may from time to time determine.”

[10] By letter, dated 11 December 2012, provided to the Applicant’s then representation, the Applicant’s employment was terminated.

[11] Relevantly the letter stated:

“On Friday, 30 November 2012 our clients Chief Executive Officer, Sharyn Brown (“CEO”), contacted your client to arrange for a mutually suitable time when your client could attend our clients (sic) business premises to discuss various employment matters of a serious nature, including those contained in this facsimile. Your client refused to attend our clients (sic) business on the basis that he was “to (sic)” and “is a casual employee only” [paraphrased only].

Shortly after this phone conversation, the CEO again contacted your client to provide your client with a further opportunity to arrange for a mutually suitable time to discuss such matters. Your client again refused to meet with our client to discuss such matters.

Your clients (sic) employment was terminated at this time. Your client was also informed that the Chairman of our clients (sic) Board, George Uren (“Chairman”) would like to meet with your client at his accountancy practise business premises in person to discuss the termination of employment and associated matters and also to collect confidential information held by your client.

...

Discussions relating to the issues surrounding your clients (sic) employment (including but not limited to those contained in this facsimile), were discussed with your client on numerous occasions prior to 30 November 2012.

Your client was fully aware on 30 November 2012 that his employment with our client was at an end. Your client was also at all relevant times (and is) fully aware of the reasons behind the decision to end your clients (sic) employment. Our client considers any assertion otherwise by your client to be an intentional and malicious fabrication of facts.”

[12] The correspondence of 11 December 2012 goes into further detail regarding what are said to be the issues relating to the Applicant’s employment. It is necessary to set these matters out in detail. The correspondence stated:

“Breach of Agreement

Your client engaged in acts of wilful and deliberate behaviour to the detriment of our client’s business, in a manner inconsistent with the continuation of your clients (sic) employment in terms of the Agreement.

Your client, without authorisation or consent first being obtained from our client, disclosed Confidential Information (as that term is defined in clause 1 of the Agreement) to our clients (sic) customers, members and to the professional partners of our clients (sic) business).

Our client also instructs us that in addition to disclosing Confidential Information, your client also engaged in acts that may be considered as gross misconduct, by providing our clients (sic) members and professional partners with false and misleading information in [an] attempt to repudiate the goodwill and viability of our clients (sic) business.

This includes, but without limitation, your client forwarding a letter to key business members and professional partners of our client (sic) business attempting to solicit proxies for a forthcoming AGM and containing misleading comments relating to the current management committee of our client.

Your client also engaged in similar conduct relating to students enrolled in a Certificate IV in Small Business Solutions through the Metropolitan South Institute of TAFE (“TAFE Course”) (see below for further particulars on this matter).

Further, your client insisted on wearing his personal accountancy business uniform whilst employed by our client to train the students enrolled in the TAFE Course. Your client would also hand students his personal business card in [an] attempt to solicit clients for your clients (sic) personal accountancy business.

At various times, in meetings and discussions with other corporate partners and clients, your client would often reference his own business to promote his services in an in appropriate (sic) manner. Your client’s business is in direct competition with our clients (sic) business and such actions constitute a breach of Clause 3 of the Agreement.

In addition, your client also failed to provide essential information and complete fundamental documents pertaining to the students enrolled in the TAFE Course (detailed below).

Our client considers that, without limitation, your client has breached the terms of clause 11 of the Agreement and engaged in acts of Misconduct (as that term is defined in clause 1 of the Agreement).

Letter from our client dated 5 December 2012

Since your clients (sic) employment ended on 30 November 2012, your client has continually breached the provisions of the Agreement, which survive its termination in terms contained therein and at law. This includes disclosing Confidential Information and making false and misleading representations to our clients (sic) customers, members and to the professional partners of our clients (sic) business.

Our client has, by way of example only and without limitation, received an email dated 4 December 2012 from a student enrolled in the TAFE Course, with the Metropolitan South Institute of TAFE being a program partner of our client, containing false information relating to your clients employment, with such information being provided by your client.

Our client also received a phone call on 30 November 2012 from the manager at the Metropolitan South Institute of TAFE, Mr. Philip Fung (being the direct contact of our clients (sic) program partner in this regard) informing our client that your client had contacted him directly. In our clients (sic) opinion, this caused significant damage to our clients (sic) business relationship with the Metropolitan South Institute of TAFE and the CEO and Manager flew to Brisbane for a meeting on Monday, 3 December 2012 to discuss the matters relating to their business relationship and the program partnership.

Our clients (sic) letter dated 5 December 2012 was forwarded to our clients (sic) members and business clients to correct the misrepresentations of your client. This letter confirmed that your clients (sic) employment has come to an end, that your clients (sic) views do not necessarily reflect that of our client, that your client no longer has authority to represent or act on behalf of our client and that a suitably qualified replacement for his position will be obtained.

In light of your clients (sic) actions, our client considered this letter necessary. Our client does not consider that it is defamatory in any manner whatsoever.

To avoid any doubt, our client will not be issuing a public apology for retracting its letter dated 5 December 2012.

Metropolitan South Institute of TAFE

Your client was the relevant employee of our client who received the appropriate training to conduct the TAFE Course through the Metropolitan South Institute of TAFE.

Your client has not completed the required workbook and associated paperwork (“documents”) to enable the ten (10) students in ‘block 1’ of this TAFE Course to obtain the Certificate IV in Small Business Management, despite the students potentially having completed the course to a satisfactory level and otherwise having a competency sufficient to attain accreditation in this course.

Your client was at all times during his employment aware of the documents required to be completed by your client for each student enrolled in this course and the reporting requirements. We understand that your client may have also signed an acknowledgment with the Metropolitan South Institute of TAFE in this regard.

Your client is the only person who possess[es] the relevant information and knowledge to access each student and complete the documents. It was part of your clients (sic) employment duties to complete this. This has still not been completed by your client, despite his obligations under the terms of the Agreement and at law.

As your client has refused to complete the workbook and associated documentation, all students may be failed by the Metropolitan South Institute of TAFE. Our client is currently liaising with the metropolitan South Institute of TAFE in this regard.

Notwithstanding any dispute between our respective clients relating to your clients (sic) employment, it is unreasonable that your client withhold this information and not submit the required documents to enable our client to provide such information and documents to the Metropolitan South Institute of TAFE in the appropriate manner.”

Procedural History

[13] This matter has had a lengthy procedural history before this Commission. It is necessary to go into some detail regarding this history as it relates to a number of procedural issues raised by the parties, particularly the Applicant in this matter.

[14] The originating application was filed on 14 December 2012. A notice of listing, in relation to the initial conciliation, was issued by the Commission’s Unfair Dismissal Branch, on 7 January 2014. The Respondent filed a Form F3 Employer Response on 21 January 2013.

[15] The initial conciliation was conducted on 23 January 2013. The matter was unable to be resolved. Consequently the Conciliator referred the matter to the Queensland Unfair Dismissal Regional Roster.

[16] The Commission, as presently constituted, received the matter for determination on 19 February 2013. A notice of listing was issued by Chambers on 22 February 2013, listing the matter for “conciliation/mention” on 8 March 2013.

[17] On 5 March 2013, the Applicant filed a Form F52 application for production of documents. Given that the matter was listed for conciliation/mention, rather than formal arbitration the order was not issued, pending the outcome of conciliation.

[18] At conciliation it became apparent that the parties were close to reaching a settlement but that particular wording in the deed of release could not be resolved.

[19] An issue which became apparent during the conciliation conference, and subsequent correspondence, was the scope of the settlement discussions between the parties, in the context of the application before the Commission. The Applicant’s complaints against the Respondent were wide-ranging and not limited to issues ordinarily in dispute between parties in an unfair dismissal matter before the Commission. This complicated settlement discussions and resulted in a greater amount of time than would ordinarily be spent in conciliation.

[20] On 11 March 2013, the Applicant corresponded with the Commission to raise, for the first time, certain medical complaints.

[21] On 3 April 2013, the Applicant corresponded with the Commission to advise that the parties had reached an impasse in settlement discussions. The Applicant also sought “leave” to file a fresh application, alleging unlawful termination, in the Commission. Contact was made from my Chambers to the Applicant’s friend, a Lawyer assisting the Applicant, to advise that the unlawful termination action was in all likelihood barred because of the operation of the multiple actions prohibition in the Act. Further, it was confirmed to the Applicant party that, given that the unlawful termination application was filed some 4 months after the dismissal, it was in any event lodged out of time and that an extension of time would need to be sought to proceed with the fresh application. The Applicant confirmed, on 8 April 2013, that he intended to proceed with the unfair dismissal matter.

[22] The parties were initially focussed on conciliation and had devoted some time to this process, seeking further assistance from the Commission resolve this. Because of the nature of the orders sought by the Applicant, the Commission corresponded with the parties on 10 April 2014, as follows:

“It is the Commissioner’s understanding that the parties were in conciliation discussions. The Commissioner understands the matters raised by the Applicant but advises that some of those matters fall outside of the jurisdiction of the Commission. Further if the matter were to proceed to Arbitration and a finding made in favour of the Applicant the Order, if any, would be limited to only those remedies provided for under the Act being, primarily, reinstatement and/or compensation.

To that end the Commissioner intends to relist the matter for further conciliation.”

[23] To facilitate this further discussion, the Commission directed the parties to exchange their position, as to the resolution of the matter. The Applicant, on 12 April 2013, confirmed his position had remained unchanged. The Applicant also sought that the order to produce be issued because “the absence of the information sought is jeopardising my ability to take mitigating action through Workcover and my Insurer for Income Protection”. The Applicant also raised certain matters, for a further time, regarding the consideration of whether he should seek whistleblower status.

[24] The Commission confirmed, again, also on 12 April 2013, that the Order would not issue at this time as the matter was not proceeding to formal arbitration at this time.

[25] On 20 April 2013, the Applicant sent to Chambers, a complaint to the Fair Work Ombudsman, regarding the provision of payslips from the Respondent. This matter was discussed at the further conciliation of 23 April 2013. The Respondent agreed to the provision of payslips to the Applicant. These were provided on 24 April 2013 in an email to the Applicant, and copied to the Commission.

[26] The parties engaged in further, extensive, correspondence regarding the provision of employee records and the matters remaining in dispute between the parties in clarifying matters for the resolution of this matter via conciliation. It is unnecessary to recount in full this correspondence. But it is noted that the Applicant’s position remained, throughout, that he sought the inclusion of matters in the terms of settlement beyond that which could be achieved at arbitration, and sought, in the alternative, substantial compensation.

[27] Following a further period, the Respondent requested that the matter proceed to final arbitration. On 12 July 2013 a notice of listing was issued for “Conference/Mention” of the matter, to occur on 17 July 2013.

[28] Within a short period of the listing being issued, the Applicant corresponded with the Commission, advising that he was unwell and would be unable to attend the listed conference. The Applicant advised that he would contact the Commission in the coming days. The conference was vacated on that basis.

[29] On 15 July 2013, the Applicant corresponded with the Commission to advise that his medical condition has deteriorated. The Applicant was advised at this time that he was to contact Chambers when his condition improved.

[30] On 5 August 2013, the Applicant corresponded with the Commission advising that his medical condition continued to be of concern and that he did not anticipate being in a position to proceed with the matter until “at least the end of September”. The Applicant sought the Commission’s advice as to whether this delay may affect his claim. The Commission responded as follows:

“The Commission cannot give advice as to your legal rights or obligations arising under the Act.

As you are aware this matter has been on foot for a significant period. The Commission has an obligation to ensure that matters are dealt with efficiently in order that the rights of both Applicants and Respondents are not affected.

The Commission confirms that, given that the file has been in abeyance for an extended period the Commission will maintain the file for one month. At which time the Commission directs the Applicant to confirm his intentions to either pursue the matter or to withdraw the application. If the Applicant pursues the matter Directions will issue for the filing of material in the application and a hearing will be listed.”

[31] On 29 August 2013, the Applicant corresponded to advise that his condition had partially improved and that he was now able to continue with the matter. Given the history of the matter, and consistent with the Commission’s correspondence of 5 August 2013, it was confirmed that Directions would issue on the standard basis and sought the parties’ views as to the scheduling of the matter.

[32] On 4 September 2013, the Applicant filed a further application for order for production. This order continued to seek production of employee records, amongst other material (discussed further in this decision below). Primarily however the order was not issued as the material was not relevant to the issues in dispute, or, was clearly intended to be used by the Applicant in other jurisdictions.

[33] On 11 September 2013, Directions were issued by the Commission. Given the limited availability of Regional Courthouses to accommodate external hearings the Commission considered it was prudent to issue Directions in the matter prior to listing for formal determination.

[34] The Applicant was directed to file his material by 4pm on 2 October 2013. At shortly after 2pm on 2 October 2013, the Applicant applied for an extension of time, to 4 October 2013, on two bases, that he was not legally qualified, and that his medical condition had continued to hinder his preparations. The Commission sought the Respondent’s view as to the Applicant’s request. The Respondent did not object to an extension of time being granted. The extension was granted in the terms requested.

[35] The Applicant filed his material in accordance with the extended Direction.

[36] The Respondent’s material was due by 4pm on 23 October 2013. At shortly before 9am on 23 October 2013, the Respondent requested an extension of time. Given that an extension of time had been granted to the Applicant, and the subsequent effect this had on the time for the Respondent to properly consider the material, an extension was granted. The Respondent was directed to file by 28 October 2013. An extension was also granted to the Applicant to file his material in reply to 11 November 2013. The Respondent’s material was filed in accordance with the amended timetable. At this time the Respondent also made an application that the hearing proceed by way of determinative conference, rather than public hearing. The Commission confirmed that this matter would be included in the future mention in the matter.

[37] On 11 November 2013 at approximately 3pm, Chambers received an urgent email from the Unfair Dismissals Branch of the Commission. That email advised that the Applicant had contacted the Unfair Dismissals Branch to request an extension of time because he was experiencing technical difficulties. At shortly after 3pm the Applicant emailed Chambers with his request. The Commission granted an extension until 10am the following day. The Applicant filed his material in reply at 10:26am.

[38] On 25 November 2013, the Commission issued a notice of listing in relation to the matter for mention. The mention was listed to occur at 9am on 11 December 2013.

[39] At approximately 1pm on 10 December 2013, the day before the listing, the Applicant corresponded with the Commission and the Chambers of the Vice President of the Queensland Industrial Relations Commission to seek an adjournment of “one of the matters” as the Applicant was unable to prepare for both listings. The Respondent objected to any adjournment of the matter in this Commission. The Commission refused to adjourn the matter on the basis that the request was made at short notice and that the parties had been on notice of the listing since 25 November 2013.

[40] The Mention on 11 Decmeber 2013 proceeded as listed. Following the Mention the Commission issued reasons for granting permission to the Respondent to be represented by a lawyer.

[41] After making inquiries with the relevant regional Courthouses, a notice of listing was issued on 16 December 2013, setting the matter down for hearing on 18 and 19 March 2013. The hearing days in this matter were eventually reduced to a single day.

[42] On 17 January 2014, the Applicant again applied for an order for production of documents. This time the Applicant particularised the relevance of each category of document that he sought. This order was partially refused and is discussed below.

[43] After the date for compliance with the Order passed, the Respondent corresponded with the Applicant and the Commission advising that no documents were produced. The Respondent stated that either the documents did not exist or that it did not have the documents so none could be produced.

[44] On 27 February 2014, the Commission confirmed, in response to a query by the Applicant, that permission had been granted for him to be legally represented should he choose.

[45] On 11 March 2014, four business days before the hearing of this matter, the Applicant corresponded with the Commission seeking “a further indulgence” to file a further 2 witness statements. The Commission ruled, also on 11 March 2014, as follows:

“As to those matters concerning the further evidence sought to be filed by the Applicant the Commissioner advises that Directions in this matter were issued on 11 September 2013. These directions required parties to file all material upon which they relied by the dates directed. The parties were further advised:

“The Commission will not accept material that is filed after the expiry of a timeframe unless an extension has been sought and granted by the Commission prior to the expiry of that timeframe.”

The Applicant was provided with the opportunity to file any final material in reply by 4.00pm on Wednesday, 6 November 2013. This date was subsequently extended to 12 November 2013.

The Directions have closed. As advised by the original Directions, the Commission will not accept any material that is filed after the expiry of the timeframe. If you are now seeking to introduce new evidence, the trial in this matter, listed for next week, may have to be abandoned to allow the Respondent some time to consider that material and seek instructions.

The Commissioner requires your urgent response, by midday tomorrow, as to the basis on which this new material is sought to be introduced at such a late stage and why this material was not filed in accordance with the Directions.”

[46] On 12 March 2014, the Respondent stated that its position was to object to any further material and any abandonment of the current listing. The Respondent also confirmed that the second additional witness that the Applicant intended to call, had requested that the Applicant not contact him in relation to the matter.

[47] The Applicant provided a lengthy response on 12 March 2014. The Applicant sought to introduce the new evidence primarily on the ground that it was “new” evidence that it had only just “occurred” to the Applicant to call and, in part, that he was not previously aware of its existence. The parties engaged in a lengthy exchange of correspondence throughout this day.

[48] At approximately 1.30pm on 12 March 2014 the Commission unequivocally rejected the application to file fresh evidence in the matter. The Commission stated to the parties as follows:

“The Commissioner has considered the responses below.

Given the previous directions in this matter, requiring that parties file all material on which they rely, and the limited time for the Respondent, or the Commission, to consider any additional material filed in this matter so close to trial, and the length of time with which this matter has been on foot, the Commission does not grant leave to the Applicant to file further evidence at this time.

The Commission notes that the Applicant is able to make submissions as to the Respondent’s evidentiary case, and the weight that the Commission should place on such evidence, at the listed Hearing in this matter.”

[49] On 14 March 2014, despite the clear ruling of the Commission, the Applicant inappropriately attempted to file a statement of one of the witnesses that the Commission had previously declined leave to file. The Respondent objected to the Applicant’s actions in this regard. Also on this day Mr Ascione, filed a notice of representative commencing to act in the Commission.

[50] Given the strength of the Respondent’s objections, the lengthy history of this matter and the fact that the hearing in this matter was to occur in the very near future the Commission corresponded as follows:

“I refer to the earlier correspondence of today’s date.

The Commissioner is currently in an urgent Hearing and will likely be unable to deal with the additional evidentiary matters prior to the listed hearing on Tuesday.

However, the Commissioner is aware of the issues raised by the Respondent in relation to the further material purportedly filed by the Applicant today.

The Commissioner advises that she has not, and will not, consider the contents of the statement purportedly filed earlier today. The Commissioner has previously dealt with the Applicant’s request to file further evidence, which was refused.

The matter will be dealt with at the Hearing on Tuesday.”

[51] The hearing of the matter proceeded as listed. Mr Ascione, on behalf of the Applicant made a fresh application to introduce new evidence; the grounds for such application essentially remained unchanged. This was refused by the Commission on transcript as follows:

“On your own submissions, it's not as though this person was not within the domain of knowledge of the applicant. On your own submissions, she's a witness in separate proceedings and I consider that it would provide significant prejudice to the respondent. I would have to stand the matter down, allow them to take instructions. It might arise that they need to bring further witnesses in this matter and it's significantly late in relation to the directions that have been put for many months.
...
don't intend to admit the affidavit. I intend to proceed today. You have, as I understand, instructions in relation to those matters that the applicant considers are relevant to the cross-examination of Ms Brown and we'll proceed on that basis, Mr Ascione. I do not intend to admit the matter. It's very late in the proceedings. I, at least, intend to move forward with the evidence that has been filed in relation to this particular matter.” 2

[52] Following the decision being reserved in this matter, the Respondent, forwarded some correspondence of the Applicant, which it appears from the wording the Applicant intended to send to my Chambers. The correspondence of the Applicant was dated 3 April 2014, and was originally sent to the Vice President of the Queensland Industrial Relations Commission, stated:

“I write to advise that I have today concluded my case with an Appeal against QCOMP , and I emplore you to urgently bring to the Attention of Commissioner Spencer, that fuller evidence significantly divergent to that produced at the Fair Work Hearing was submitted today. This evidence was in part that which I was not allowed to submit to the FWA Hearing.
I urgently seek for a delay in the Commissioner making a decision in the FWA matter until the evidence and outcome of the QCOMP Appeal is known.
Can you please advise me the correct protocol now that the FWA evidence submission is closed and the QCOMP Transcription will be shortly available.”

[53] The Respondent objected to any delay or reopening of the matter on the following basis:

“The writer is not familiar with the Queensland Industrial Relations Commission matter. However, with respect, it is completely inappropriate that your client forwards an email of this nature to the Fair Work Commission when:-

1. The Workcover claim by your client was denied, the appeal to Q-Comp was unsuccessful, and there is no decision on the further appeal to the Queensland Industrial Relations Commission;
2. The hearing for the unfair dismissal application has been concluded and is pending a decision; and
3. Most importantly, your clients matter with the Queensland Industrial Relations Commission is separate and distinct from this application for an unfair dismissal matter the 2 matters have no correlation to each other whatsoever.”

[54] The Commission responded as follows on 4 April 2014:

“I refer to the correspondence below. I advise that the Commission had not originally received the correspondence of 3 April 2014, as it was not addressed to the Fair Work Commission.

This matter has been ongoing for a significant period and has involved a large amount of correspondence between the parties and the Commission. It is inappropriate to raise ongoing matters in other jurisdictions while a decision has been reserved. The Applicant’s email suggests that the evidence that is now sought to be tendered is the material which the Commission has already, on numerous occasions, dealt with, and refused leave to file.

The Commission again confirms that a decision has been reserved in relation to this matter. A decision will issue in the ordinary course. The Commission will not engage in any further correspondence regarding this matter.”

[55] Again, on 14 April 2014, the Applicant’s representative corresponded with the Commission as follows:

“I refer to my enquiry this morning and following your suggestion I confirm that I am instructed to formally request that the Honorable Commissioner considers re-opening the hearing prior to the handing down of her decision. The reason for that request is that the Workcover hearing on 2 and 3 April 2014 (the final written submissions are yet to be filed) is clearly pertinent and relevant to the outcome of the unfair dismissal hearing.

Despite the Commissioner's rejection of my initial application to include the late and unsuccessful filing of an affidavit of Kirsten Gadsby, the former Chairperson, her and two other witnesses were called and gave detailed and revealing evidence at the Workcover hearing. The other two witnesses - Donnie Harris, the previous and current Chairperson and George Uren, member, all of the above Centre - gave crucial evidence as to the ultimate question of credibility and truthfulness of both Mr. Coco and Sharyn Brown, CEO in both hearings.

On the established grounds of procedural fairness and natural justice principles, it is strongly submitted that Messrs Harris and Uren should be compelled to attend at the re-opening of the hearing to give evidence before the Commissioner.”

[56] The Commission again confirmed that a decision had been reserved and would be issued in the ordinary course.

Relevant legislation and initial matters

[57] The application has been made pursuant to s.394 of the Act, which provides (as at the time of dismissal) as follows:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWA for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWA may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(2) The application must be made:

(a) within 14 days after the dismissal took effect; or

(b) within such further period as the FWA allows under subsection (3).

...”

[58] Prior to considering the merits of the matter the Commission must decide those matters prescribed by s.396 of the Act as follows:

“396 Initial matters to be considered before merits

The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy.”

[59] The Commissions’ file indicates that the application was filed on 14 December 2012. The originating application stated that the dismissal took effect on 5 December 2012, although the Applicant was unsure if this was the exact date. The subsequent employer’s response, filed on 21 January 2013, stated that the date dismissal took effect was 29 November 2012. However, the Respondent’s submissions in the matter stated that the dismissal took effect on 30 November 2012. 3 On that basis, the application was filed on the 14th day after the date the dismissal took effect. The Commission is satisfied that the application was made within the period required in s.394(2) of the Act, at it then was.

[60] The Respondent has not raised any objection to the application on the basis of those matters set out in s.396(c) and/or (d) of the Act, being that the dismissal was consistent with the Small Business Fair Dismissal Code. The Respondent is a Small Business for the purposes of the Small Business Fair Dismissal Code. The Respondent did not rely upon a genuine redundancy in the Applicant’s dismissal. The Commission is satisfied that the Small Business Fair Dismissal does apply and that the dismissal was not a case of genuine redundancy. Compliance with the Small Business Fair Dismissal Code was not specifically pleaded by the Respondent. The Commission is bound to consider its effect however as the Respondent stated, and the Applicant conceded, that the Respondent is a Small Business. 4

[61] A person is protected from unfair dismissal, at a time, if that person satisfies those matters prescribed by s.382 of the Act, as follows:

“382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.”

[62] There is no dispute between the parties that the sum of the Applicant’s annual rate of earnings, and such other amounts, is less than the high income threshold. The Respondent raised that the Applicant was a casual employee, not employed on a regular and systematic basis. The Respondent submitted that the Applicant is not a person who has completed a period of employment with the Respondent of at least the minimum employment period. Given the history of the matter, and to deal with the application in the most efficient manner possible, it was agreed that the jurisdictional matter would be determined at the same time as the merits (if required).

[63] Subject to the one jurisdictional question, the Commission is otherwise satisfied that the Applicant was a person protected from unfair dismissal at the time of dismissal.

[64] The Applicant alleged that he has been unfairly dismissed within the meaning of s.385 of the Act which states as follows:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

[65] There is no dispute that the Applicant is a person who has been dismissed, and the evidence before the Commission stated that that is clearly the case. The Small Business Fair Dismissal Code has not been relied upon, and has no application to this Respondent. The dismissal was not a case of genuine redundancy.

[66] The Applicant has alleged that his dismissal was harsh, unjust or unreasonable. In considering whether the Commission is satisfied that a dismissal was harsh, unjust or unreasonable the Commission must take into account those matters specified by s.387 of the Act, as follows

“387 Criteria for considering harshness etc.

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

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

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

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

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

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

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

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

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

[67] The submissions and evidence of the parties in this matter focussed upon whether the Applicant’s dismissal was an unfair dismissal, and more specifically, whether the Commission is satisfied that the dismissal was harsh, unjust or unreasonable.

Summary of Applicant’s submissions and evidence

[68] The Applicant conceded that he was engaged on a casual basis. The Applicant submitted however, that he had an expectation of ongoing employment. The Applicant submitted that this was so because of his involvements in the Certificate IV courses that he was facilitating.

[69] The Applicant stated that on 30 November 2012 he was notified by Ms Sharyn Brown, CEO, that he was suspended. He stated that he was not given a reason for the suspension or an opportunity to responds to allegations of misconduct.

[70] The Applicant accepted that he was contacted by Ms Brown on 30 November 2012, and that Ms Brown requested to meet with the Applicant to discuss matters regarding his employment.

[71] The Applicant submitted that he was not able to meet with Ms Brown on that day as he was working within his private practice and was not, at the time, working for the Respondent. He was unable to leave his private business to attend at the Respondent.

[72] The Applicant stated that he was contacted by Ms Brown at 1.45pm on Friday, 30 November 2012. During this phone call the Applicant stated that Ms Brown requested that the Applicant attend at the centre by 3.30pm that day. Ms Brown also requested that the Applicant attend with electronic and physical files that he possessed in relation to the TAFE course.

[73] The Applicant submitted that he refused because of his prior commitments and the short notice provided by the Respondent. The Applicant stated that he suggested to Ms Brown that they meet at around 6.00pm that evening. Regardless, the Applicant stated that he had the requested physical and electronic files prepared for collection by 3pm on 30 November 2012. The Applicant stated that he “left them in a clearly visible location, through the office glass door”. The Applicant then left the office to attend to his other commitments. The Applicant stated that upon returning the following day he noticed the items had not been collected.

[74] The Applicant stated that a meeting had been arranged with Mr Uren, to arrange collection of the relevant documents. The Applicant stated that he was not able to arrange a “companion” to be present for this meeting despite requesting time to arrange one.

[75] The Applicant stated that, in relation to the phone discussions with Ms Brown on 30 November 2012, he concedes that he did not agree to meet with Ms Brown, as requested. The Applicant stated however that he did not state that he was “too busy” but rather that he could not arrange to meet at the time requested. The Applicant said that following this his employment was “suspended” without reason.

[76] Following these discussions the Applicant corresponded, by email, with Ms Brown. The email indicates that it was sent to Ms Brown on 30 November 2012, at 2:34pm. The email stated:

“I confirm you have requested that I hand over all materials relating to the business of [the Respondent] by 3.30pm today.

I am able to comply with that request in relation to hard copies of documents, but advise that I am unable to provide electronic copies of all files by 3pm today for the following reasons:

● They are recorded on my iPhones and USB Memory Sticks which contain Private & Confidential information of mine and my own Practice Clients
● I have other commitments with Clients which I cannot delay
● I have other personal commitments, with my Family and my Church Group in delivering Emergency Food Parcels to destitute Families
● [The Respondent] did not at the time of the Course Commencement provide me with a suitable medium to record my interview and the Workshops as they occurred

I will be in a position to provide the files to you by 5 pm on Monday 3 December and will deliver them to you at 184 Vickers Road North, Condon by that time.

I undertake not to use or disclose the information for any unauthorised purpose and will not keep copies of any confidential information of [the Respondent].”

[77] The Applicant stated that he did comply with his undertakings within the correspondence to Ms Brown of 30 November 2012. The email also contains a handwritten note on it stating “[D]ear George, please sign for receipt of student files and hard drive, thanks Angelo [dated 30/11/2012]”. There is a further notation, handwritten, that says “Signed. George Uren, Acting Chairman, NQSBDC, For 20 student filed hard drive”.

[78] The Applicant stated that he met with a Mr Rebgetz, during the week of 3 December. The Applicant stated that he was again, unable to arrange for a “companion” and was not “afforded the opportunity to have one present”.

[79] The Applicant agreed that, in relation to the alleged breach of agreement, constituted by sending an email to clients of the Respondent’s business, he did send correspondence. The Applicant stated that he sent an email to 12 members (out of over 100 possible voting members) urging them to attend the annual general meeting to vote, or to consider providing the Applicant with their proxy vote.

[80] The email the Applicant sent is dated 16 November 2012 and was annexed to the Applicant’s materials. 5 The email shows that it was sent by the Applicant, from the email address attached to his personal business, to 12 email addresses. It is not able to be determined if the email was sent to further recipients as a “blind copy”. The email stated:

“Dear Colleague,
I’m not sure if you are able to make it to this important meeting, but I do urge you to attend if at all possible.

We currently find the Centre with:

1. No Funding (sic) from the Federal Government, which was $300,000 in prior years and previously known to have had a Sunset Clause;
2. A newly appointed CEO, who has not been afforded the benefit of a proper handover from the former CEO, who appears to have left without explanation;
3. A Strategic Plan dated 2008, which has not been reviewed and mapped out for the next few years in detail;

These are all Strategic Issues, which appear to have not been properly addressed and the prime responsibility of the current Management Committee. It is crucial that the next Management Committee act urgently to address these matters to preserve the important contribution the North Queensland Small Business Development Centre makes to the Region from Tully to Home Hill and west to Charters Towers as a Business incubator, and Centre for affordable Business Advisory Services.

If you find that you are not able to make it, would you please consider providing me with your proxy, as per the attached form, as there will be a vote for all 6 available positions, including that of Chairperson.”

[81] The Applicant denied that this correspondence contained confidential information or false and misleading information. The information contained in this email, it was said, was publically available and was for the purpose of “encourag[ing] them to use their vote effectively to benefit the business”.

[82] The Applicant stated that, as he is a member and employee of the Respondent, it is not in his interests to tarnish the viability of the Respondent.

[83] As to his alleged failure to complete student records, the Applicant submitted that he was unable to complete the student files as he was suspended without notice, and denied access to the files required for submission.

[84] As to the Respondent’s assertion that the meeting of Monday, 26 November 2012 was a ‘performance discussion’ the Applicant disagrees. The Applicant submitted that he was not requested to attend any performance discussions during his time with the Respondent.

[85] The Applicant submitted an email of Ms Brown, to the Applicant, dated 26 November 2012, with the subject of “Cert IV Progress”. This email does not make reference to any matter which may be considered to be in relation to a performance discussion. The correspondence deals with the future of the Cert IV program and other administrative matters. The Applicant submitted that had there in fact been any performance concerns, it would be logical that they would be included in this correspondence.

[86] The Respondent also disputed that he contacted “key suppliers, business providers or clients of the Respondent” during the period of 30 November 2012 to 5 December 2012. The Applicant does concede however, that he contacted students “out of courtesy” following the afternoon of 30 November 2012, at which time the Applicant maintains he was suspended. The Applicant stated that the purpose of this contact was to advise that the following workshop, scheduled for 3 December 2012, may have to be deferred and that the Respondent would contact students accordingly.

[87] The Applicant’s submissions are considered in the context of those matters required by s.387 of the Act, as addressed.

(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).

[88] The Applicant submitted that there was no valid reason for the dismissal related to either the Applicant’s capacity or conduct. Primarily, the Applicant submitted that the material alleged to have been “confidential information” was not, in fact, confidential information.

[89] The employment agreement, dated 26 October 2011, defines “confidential information”. It is timely to recount that definition as follows:

“”Confidential information” (whether recorded in writing, or recorded electronically or retained by means of personal knowledge) includes and is not limited to:

(i) all the financial books and records of the Employer, and all other information concerning the financial affairs of the Employer;

(ii) all proceedings of the Employer, any general meetings of the Employer, and all minutes of such meetings;

(iii) a trade secret, an idea, a process, a methodology, manuals about policies and procedures as well as know how possessed by or for the Employer;

(iv) all Employer client lists, Employer contacts, Employer accounting records and information about the operations of the business conducted by the Employer;

(v) computer software, systems, precedents and programs possessed by or for the Employer; and

(vi) all the Employer’s clients’ private information and records”

[90] Clause 11 of the employment agreement provided for the obligations in relation to “confidential information” as follows:

“CONFIDENTIAL INFORMATION

11.1 As confidential and commercially sensitive information important to the business of the Employer will from time to time will (sic) become known to the Employee, the Employer considers and the Employee acknowledges that the following restrains are necessary for the reasonable protection by the Employer of its business.

11.2 When Confidential Information is received by the Employee, the Employee:

(a) must not disclose any Confidential Information in any way to any third party without the prior written consent of the Employer;

(b) must keep all Confidential Information secret and confidential at all times;

(c) must keep all the Confidential Information and any documents and other matter or thing containing any Confidential information at all times in a secure place as directed by the Employer;

(d) must not use any of the Confidential Information in any way for the Employee’s own benefit either directly or indirectly or for the benefit of any other person either directly or indirectly but only use it for the purpose of service the Employer;

(e) must not without prior written consent of the Employer make or have made any copies or articles duplicating or embodying all or any part of the Confidential information in any form;

(f) must return to the Employer on demand and in any event on the termination of employment all documents and other articles containing Confidential information and all copies thereof, and destroy any other articles, documents and material derived therefrom and promptly provide written confirmation that no copy or copies of Confidential Information or any part thereof remains in the possession, power, custody or control of the Employee; and

(g) must notify the Employer immediately in the event that the Employee is lawfully compelled to disclose any Confidential Information to a third party and must comply with the Employer’s lawful directions in relation to such disclosures.

11.3 the obligations and rights of enforceability under this clause shall survive the termination, for whatever reason, of the Employment.”

[91] Primarily the Applicant submitted that the email, of 16 November 2012, from the Applicant to other members of the Respondent organisation, was sent from his private email account and in his capacity as a private member of the Respondent. The Applicant stated that he knew each of the 12 recipients, some of them since before his employment with the Respondent.

[92] The Applicant submitted that another employee received a proxy vote from another member but was not disciplined like the Applicant. This submission misunderstands the matters relied upon by the Respondent. As the Commission understands it, the Respondent does not dispute the Applicant’s ability to act as a proxy, as provided for by relevant corporations law. The Respondent’s dispute the manner in which the Applicant sought to do so, including the disclosure of what the Respondent submitted was confidential information.

[93] Specifically on this point, the Applicant submitted that the information concerning government funding, and the sunset clause in relation to that funding, was not confidential. The Applicant submitted that the circumstances of this funding were “widely known”.

[94] In this regard, the Applicant referred the Commission to the 2012 Chairman’s Message, contained in the Respondent’s Annual Report. 6 The Message from the Chairman stated:

“Another year has flown by and while I would like to reflect on the year that was, it is hard not to also consider the challenges ahead for the organisation. The financial results while positive for the last financial year, they are not likely to be repeated in the forthcoming year due to the non renewal of federal government funding.

The organisation had received federal government funding for the previous three financial years but the funding term has now ended and the advice we have received from the federal government is that any renewal of the funding is “on pause”. We believe this is a polite way of saying that the funding is not likely to be renewed. As a result, the organisation will need to adapt to fill the void that will be left by the loss of $300,000 per year in government funding.” (emphasis added)

[95] As to the correspondence in relation to the sudden departure of the former CEO, the Applicant submitted that this information too, was well known to staff, clients, on-site tenants, and members of the Respondent.

[96] The Applicant disputes that he insisted on wearing clothing including the logo for his private business, or handing out his personal business cards when undertaking work on behalf of the Respondent.

(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.

[97] The Applicant submitted that prior to dismissal he was not formally notified of the reasons for his dismissal. In particular the Applicant submitted that no notice was provided in accordance with the terms of the employment agreement.

[98] The Applicant filed a Small Business Fair Dismissal Code Checklist that has apparently been completed by Ms Brown, dated 30 November 2012. The Applicant does not accept that this was provided to him at the time of dismissal.

[99] The Applicant referred to the series of events that occurred on 30 November 2012 and the unreasonable notice that the Respondent provided to the Applicant to attend to a meeting with Ms Brown. The Applicant submitted that this timing did not provide the Applicant with an opportunity to respond to any allegations that the Respondent wished to make against him.

(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.

[100] The Applicant submitted that as he did not have an opportunity to meet the CEO to discuss any alleged performance issues, he did not have the opportunity to have a support person present.

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

[101] This matter does not arise. The Respondent has not relied upon prior unsatisfactory performance, rather matters of misconduct, related to the final events that lead to the dismissal.

(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.

[102] The Applicant conceded that the Respondent is a small business with only 5 employees. The Applicant submitted that the Respondent did not have clear policies or procedures; presumably including in relation to employee discipline. The Applicant “contested that the size of the organisation did not adversely impact on their ability to understand and adhere to widely accepted and legal minimums for termination”. 7

[103] The Applicant submitted that the Respondent sought industrial relations advice and that some of the management committee are legally qualified.

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

[104] The Applicant submitted that the conduct of the Respondent in this matter should be considered in relation to the merits of the application.

Casual - regular and systematic

[105] The Applicant submitted that he was employed as a casual employee but that he was employed on a regular and systematic basis, and he had an ongoing expectation of work.

[106] The Applicant submitted that he worked “regularly and systematically...16 hours per week, paid fortnightly”.

[107] The Applicant indicated that he was expecting continuation of the Cert IV program (which he was facilitating).

Application for production of documents

[108] The Applicant, on numerous occasions submitted a request that the Commission issue Orders for Production to the Respondent. These requests included wide ranging documentation.

[109] On several occasions throughout proceedings it was explained to the Applicant that in Order for the Commission to consider issuing the Order it would need to be apparent that the material requested was relevant to the proceedings and, more particularly, a matter in issue between the parties.

[110] It was apparent that the request was made for personal items of the Applicant, that he says are held by the Respondent, as well as material that would allow the Applicant to make various claims for matters such as income protection. The Commission advised the Applicant on each occasion that the Commission was not empowered to Order the Applicant to provide items or material in those circumstances.

[111] It also became apparent that, despite the Applicant’s submission that he had not been previously counselled or warned, he was seeking production of documents in relation to such. Clearly if such items had been relied upon by the Respondent, be incumbent upon the Respondent in relation to the dismissal then it would to introduce these into evidence in the usual way.

[112] However, the Applicant persisted with his requests; I will briefly address each item requested.

[113] It is pertinent to set out the Commission’s power to order production of documents. Section 590(2)(c) of the Act provides:

“590 Powers of the FWC to inform itself

(1) The FWC may, except as provided by this Act, inform itself in relation to any matter before it in such manner as it considers appropriate.

(2) Without limiting subsection (1), the FWC may inform itself in the following ways:

(c) by requiring a person to provide copies of documents or records, or to provide any other information to the FWC;”

[114] As to those matters that the Applicant sought, not for use in these proceedings, items 1 and 2 sought production of the Applicant’s timesheets and payslips. The Applicant explicitly acknowledged that these matters were for use in relation to his private dealings with his insurance company. 8 This is not a matter to which the Commission should order production in this matter; it is not in relation to any matter before the Commission. Where details of remuneration were required relevant to this application such were not in dispute. The Commission notes however that the Respondent is obligated by the Act to perform certain record keeping functions in relation to the Applicant’s employment and to provide such documents in appropriate circumstances. The Applicant has previously been advised of this by the Associate to the Commission. The Respondent has, through it’s correspondence, indicated that it has provided the documents it considers it is obligated to provide.

[115] The Applicant also sought various documents through items 3 to 8 generally relating to policies and procedures of the Respondent in relation to employee performance and termination. The Applicant also sought copies of any document that includes consideration of the Applicant’s dismissal or any performance management. Given that the Applicant’s case is that there were none of these documents or discussions, it is incongruous for the Commission to Order production of such. In any event, the onus is upon the Respondent to file relevant evidence of any such, if relied upon, in the usual fashion and the Applicant had the opportunity to provide submissions and evidence in reply in relation to any evidentiary failing in the Respondent’s case. The order also seeks production of complete details of all members and clients who received the letter of 5 December 2012. This material clearly falls within the property of the Respondent and would no doubt include private and potentially commercially sensitive information (the Applicant did not make out the case to substantiate a requirement for such). It would be inappropriate to order the production of such. Again, should the Respondent wish to rely upon such detail, the onus rests upon the Respondent, not the Applicant, to evidence such before the Commission. Any failing to do so is a matter for submissions by the Applicant and may undermine the Respondent’s case.

[116] Further the Applicant sought production of what were said to be his personal belongings. An order for production in relation to a s.394 application is not the vehicle for the production of such materials.

[117] Items 10 to 12 requested documentary evidence in relation to the running of the TAFE Course. These items were ordered to be issued however the Respondent submitted that such documents did not exist or were not within its control.

[118] Item 13 required the search and provision of external parties’ documents. It is noted however that the Applicant contends that any failure to comply with timeframes was as a result of student failure to hand in required work. The Respondent contended that it was in fact the Applicant who had failed to finalise work by required times. The Applicant was in charge of this course and was familiar with, and able to present his case based on his knowledge of the course and his conduct of the course and the associated deadlines.

[119] It is also important to note that the Commission “may” order production of documents. It is discretionary whether the Commission considers it appropriate to do so in the circumstances. Given the matters in dispute between the parties, the items actually requested by the Applicant, the wide ranging nature of the request and taking into account the relevant of such the Commission does not consider it would otherwise be appropriate to order production of such.

Summary of Respondent submissions and evidence

[120] The Respondent maintained that the Applicant was a casual employee. The Respondent did not specifically submit that the Applicant was not employed on a regular and systematic basis. The Respondent contended however that the Applicant did not have an expectation of ongoing employment.

[121] The Respondent disputes that the Applicant was suspended on 30 November 2012. The Respondent submitted that the Applicant was terminated on this date.

[122] The Respondent relied upon a witness statement of Ms Sharyn Brown. Ms Brown gave evidence in relation to the discussion on 30 November 2012. Ms Brown stated:

“On Friday, 30 November 2012-

(a) I contacted the Applicant to arrange for a mutually suitable time when the Applicant could attend the Respondent's business premises to discuss various employment matters of a serious nature. The Applicant refused to attend the Respondent's business premises on the basis that the Applicant was "too busy" and "is a casual employee only" [paraphrased only];

(b) Shortly after this phone conversation, I again contacted the Applicant and in this regard:-

(i) I attempted to provide the Applicant with a further opportunity to arrange for a mutually suitable time to discuss these matters;
(ii) the Applicant again refused to meet with myself;
(iii) it was apparent to me that the employment relationship was now untenable. The Applicant refused to follow simple directions given to him and there was a serious and clear breakdown in the employment relationship;
(iv) I informed the Applicant that his employment was terminated effective immediately,
(v) The Applicant requested that I repeat what I had said;
(vi) I again said to the Applicant that his employment was terminated effective immediately;
(vii) I informed the Applicant that all of the Respondent's belongings would need to be returned immediately when the Applicant said he was unable to attend the Respondent's business premises, I informed the Applicant that the Chairman of our clients Board, George Uren ("Chairman") would like to meet the Applicant at the Applicant's accountancy practise business premises in person to collect confidential information held by the Applicant;
(viii) the Applicant agreed to this request and confirmed that he would be at his accountancy practise business premises on that afternoon;
(c) The Chairman attended the Applicant's clients accountancy practise business premises and waited there for approximately an hour. The Applicant was not at his accountancy practise business premises. The premises was securely locked and there was no answer when the Chairman knocked on the front door.” 9

[123] The Respondent also submitted that the Applicant contacted Mr Philip Fung (Manager of Metropolitan South Institute of TAFE) who advised that the Applicant contacted him “about his termination of employment”. 10 No evidence was called from Mr Fung. However, the Respondent also made submissions about the alleged effect of this contact with Mr Fung on the relationship between the Respondent and the TAFE and that it was necessary for the Respondent’s management to urgently travel to Brisbane to meet with TAFE executives to remedy their concerns. This was not challenged by the Applicant.

[124] The Respondent submitted that at no time did the Applicant request a support person during any discussions or meeting with him, prior to his dismissal.

The email of 16 November 2012

[125] The Respondent submitted that, despite the submissions of the Applicant on this point, the email did disclose confidential information and made misleading representations about the Respondent’s conduct and the state of the organisation.

[126] Ms Brown stated that she received “phone calls and/or correspondence from members of the Respondent questioning the contents of the email from the Applicant”. 11 Ms Brown provided no evidence in relation to these phone calls/correspondence and does not annex any of the alleged emails to her statement.

[127] Ms Brown gave evidence that the terms of the government funding arrangements are “strictly confidential”. Ms Brown stated that the submissions for the funding and associated information are not publicly available. Whilst the Chairman’s message sent out in the annual report recognises the forewarned change in the funding arrangements the Applicant’s advice went further than this and intimated that the loss of funding was directly attributable to the Respondent organisation.

[128] It was Ms Brown’s evidence that the Applicant was aware that the information was confidential by virtue of his position as an employee and that there was generally no certainty of continued funding. However, Ms Brown stated that the Applicant was an employee, who was involved in the preparation of the further funding submissions and therefore well aware of the specific detail of the submission. Ms Brown stated that the government provided a response to the submissions, and stated that it was generally critical of the content of the submission. There was no evidence of the further feedback.

[129] As to the allegations raised by the Applicant in relation to matters pertaining to the previous CEO, Ms Brown disputed the Applicant’s assertions. Ms Brown stated that the previous CEO resigned from his position with the Respondent and that following her appointment to the position there was a period of transition, which she described as “smooth”.

[130] Ms Brown stated that the tension with the Applicant commenced following her appointment to the position. She was aware that the Applicant had applied for the position but was, evidently, unsuccessful in the process.

[131] In any event, Ms Brown stated that the only publicly available information, regarding the previous CEO’s resignation, was the fact of his resignation. All other information was said to be confidential information. Again, any such information related to the finalisation of the previous CEO’s employment and any reasoning associated with the new management by the CEO and daily office conduct was information the Applicant derived by virtue of his employment.

[132] Ms Brown stated that any assertion that she had not had the benefit of a proper handover, and that the previous CEO left without explanation, was false and misleading, and the perpetuation by the Applicant of such an allegation constituted ‘misconduct’ under the terms of the employment agreement. The Applicant’s statements were clearly designed to destabilise the current CEO and cause damage to the organisation in order that the Applicant could influence the meeting proceedings and provide him with an advantage in terms of his future conduct in relation to the affairs of the organisation.

[133] The Applicant promoted to members that there was no strategic plan. Ms Brown stated that the Respondent did have a strategic plan, but it was submitted that this document was reviewed on or about 22 July 2010 and was under assessment. Ms Brown annexed a copy of this plan to her statement, as it stood at 30 November 2012. 12 Ms Brown stated that this draft is a confidential document.

[134] The Respondent submitted that the Applicant’s email was an attempt to solicit proxies for the Annual General Meeting. This solicitation was submitted to be unethical, not in the best interests of the Respondent, as it misconstrued the status of affairs of the Respondent and was an inappropriate use of the Respondent’s resources and information and a breach of the Applicant’s employment.

[135] The Respondent submitted that the Applicant’s aim was to have his private business conduct the work in lieu of the Respondent. Contrary to his statements, the Applicant was clearly looking to fill the position and to elevate his business. Whilst the Applicant was operating his business at the time that he was engaged with the Respondent it was anticipated that the contract of employment would have benefits for both, but not that the Applicant would endeavour to take advantage of his situation.

[136] The Respondent included a number of emails between the Applicant and the students enrolled in the TAFE Course. 13 These emails were said to be evidence that the Applicant:

“(a) has communicated with students enrolled in the TAFE Course in his personal capacity;
(b) requested that the student enrolled in the TAFE Course contact the Applicant on his personal email address and other personal contact details;
(c) requested and encouraged customer referrals to his personal business;
(d) alluded to the Applicant being engaged as an independent contract with outside commitments to the Respondent; and
(e) in no way promoted or recognised the Respondent’s business conducting the TAFE Course.”

[137] The Respondent submitted that it raised with the Applicant, his continued use of his personal emails to communicate with the students and other matters (such as the wearing of his business shirts) pertaining to his private business. There is no evidence of any policy, requirement or discussion with the Applicant in this specific regard, other than the evidence of Ms Brown. However her evidence was provided in clear terms of the reasons why such discussions were initiated and the nature of the discussions she had conducted with him.

[138] The Respondent submitted that the Applicant, during his employment, failed to complete required documentation for students enrolled in the TAFE Course. The Respondent submitted that on “numerous occasions” the Applicant was requested to complete the documents and reminded of the important of completing such. The Respondent relied upon the meeting of 26 November 2012 between the Applicant and Ms Brown. Where Ms Brown referred to the discussions on these matters.

[139] The Respondent submitted that this meeting raised performance related matters and adherence to the completion of documentation. The Respondent also submitted that it raised “concerns over [the Applicant’s] management skills, his failure to properly and adequately fulfil the responsibility of his employment and his conduct”.

[140] The email of 26 November 2012 (submitted by the Applicant) does not mention any of those matters. The email of 26 November 2012, which the Respondent did not contest, does set out a timeline for compliance with raising invoices. The email does not raise any performance issues, does not indicate that this meeting was as a result of any failure on the part of the Applicant, that the Applicant has previously failed to comply with any deadline or that any failure to comply may result in disciplinary action. Upon reading the email it has the tenor of a follow-up email from a Manager to an employee in relation to agreed work goals/objectives. However this is consistent with a new CEO endeavouring to ensure that an employee, who was also a member of the organisation, would comply with the goals and objectives of work he was contracted to discharge on behalf of the employer. In addition this was work that was time sensitive and partially completed in the time that the Applicant was in control of it. It was also submitted that it was essential that it be brought to fruition for the students but also for the Respondent to maintain the income from this contract for the provision of this course for the TAFE.

[141] The Respondent relied upon the Applicant’s failure to comply with the first two agreed timeframes in the email of 26 November 2012. The Respondent submitted, in part, that the Applicant failed to provide reasons for non-adherence to these timeframes.

[142] The Respondent submitted that it received correspondence from students of the TAFE Course to the Respondent, regarding the Applicant’s dismissal. The Respondent submitted that this was evidence that the Respondent breached the employment agreement by discussing his dismissal with the students.

Consideration

[143] Before considering the merits of the application, the Commission must be satisfied of those initial matters specified by s.396 of the Act. The material before the Commission raises two initial matters for consideration: minimum employment period and compliance with the Small Business Fair Dismissal Code. Each will be considered in turn.

Minimum Employment Period

[144] In this regard the Applicant filed a copy of a Small Business Fair Dismissal Code Checklist. This document is signed by Ms Brown, and dated 30 November 2012.

[145] At item 2 which asks “[H]as the employee been employed in this business as a...regular casual employee for 12 months or more” the Respondent has indicated “Yes”.

[146] In any event it does not seem to be in dispute that the Applicant did work regularly on two days per week. The Respondent did not submit into evidence any timesheet or payslips evidencing any significant fluctuations in his employment. The Applicant was not challenged in his evidence regarding his two days per week.

[147] There is also evidence that the Applicant was involved with forward planning in relation to at least the TAFE Course. The email from Ms Brown on 26 November 2012 is consistent with a conclusion that the Applicant was at least employed on a regular and systematic basis.

[148] I am satisfied that the Applicant was a casual employee engaged on a regular and systematic basis, and had an expectation of ongoing work. The Applicant has completed the minimum employment period. This jurisdictional objection is dismissed.

Small Business Fair Dismissal Code

[149] The Respondent made minimal submissions in relation to the Small Business Fair Dismissal Code. Ms Brown’s evidence is that she completed the checklist prior to dismissing the Applicant. The evidence demonstrates that Ms Brown stepped through the checklist, considering the elements after being concerned with the Applicant’s conduct. The Applicant’s dismissal occurred over the phone, as a result of frustration that Ms Brown felt about what she perceived was the Applicant’s conduct and his unreasonable failure to meet with her on 30 November 2013 (albeit with only limited notice). However, clearly she was concerned about the impending committee meeting and also to limit any further damage to the course or any further destabilisation of the organisation or her new role.

[150] It is notable that none of the items in relation to support persons or unsatisfactory performance are completed. It is noted however that the form does indicate that “If you answered Yes to any question in parts 3, 4 or 5 you are not required to answer the following questions”. It is somewhat incongruent however that, as the Respondent submitted, if the Respondent had held discussions on several occasions previously regarding his performance it would not be noted on the form.

[151] The Respondent completed the Small Business Fair Dismissal Code and on the balance of the evidence, in the circumstances, would have complied with it had not been for the procedural issues discussed below. The Respondent considered that reasonable grounds existed for considering that the Applicant had committed serious misconduct. This is discussed further below.

[152] Given the Commission’s findings in relation to both the minimum employment period and the Small Business Fair Dismissal Code the Commission is satisfied that the Applicant was an employee protected from unfair dismissal.

[153] The following matters, relevant to s.387 of the act are considered:

(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).

[154] As to the email of 16 November 2012, said to include disclosure of confidential information, this is not specifically substantiated in respect of the government funding. The Applicant’s email simply states the amount of the previous funding, that the agreement has a sunset clause, and that there would be no further funding. Each of these matters is either stated by the Chairman in the Annual Report or is a reasonable inference from that information.

[155] The Respondent relied upon the emails submitted by the Respondent. 14 It is clear that the Applicant was aiming to do more than simply raise the agenda of the next committee meeting. It is evident that in referring to the prior CEO’s resignation and the nature of the current management, he was being critical of the current stewardship of the organisation. This management information was derived from his internal dealings as an employee.

[156] Whilst the Applicant has demonstrated that some of this information was publicly available in more general terms, the Applicant’s communication conveys the message of reduced funding with some alarm and connects the issues with other alleged mismanagement issues. Ms Brown’s evidence was that the Applicant had not previously sought to raise these issues with her. It would be incumbent upon an employee to raise such issues directly with the Respondent. An employee’s duty is owed to the employer. The Applicant has not discharged this duty faithfully and I find that the email, of 16 November 2012, was disingenuous on the part of the Applicant and was done with the purpose of destabilising the Respondent’s organisation and to progress the Applicant’s personal agenda. This misconduct does form a valid reason for dismissal.

[157] It is not clear how the Respondent submitted that the Applicant’s emails were provided in the Applicant’s capacity as an employee. These emails had been sent by the Applicant from his private email address. There was however no evidence that the Applicant had an email address through the Respondent, or that the Respondent had a policy that required the use of such or prohibited personal email addresses or that the Respondent raised this conduct as inappropriate. It seems that the Respondent acquiesced to this conduct. Included in exhibit 6 to the Respondent’s submissions are emails from the Respondent’s administration staff to the Applicant’s personal email address, concerning business for the Respondent.

[158] There is evidence that the Applicant specifically requested that students use his personal email address for contact. However, the same issues arise with the Respondent’s asserted difficulties with this conduct as discussed above; there is no evidence that the Respondent required the Applicant to refrain from using his personal email address. However, Ms Brown stated that this use of the Applicant’s business materials, rather than that of the Respondent’s organisation, had been discussed with the Applicant. There is also no evidence that the Applicant, in using his personal email address, held out to the students that he was operating in his private capacity (although it was in evidence) - in fact the Applicant closed one of the emails as follows:

“Just to clarify, I work two days each week at the NQ Small Business Centre, and the rest of the time is in my own Consultancy.”

[159] This is simply a statement of fact and on a plain reading of it does not seem to be an attempt by the Applicant to solicit private work for his business. In fact, the reading of this email seems to be an acknowledgment from the Applicant that he would still answer student emails in time in which he was not paid to do so by the Respondent. It is noted though that the signature of the Applicant’s email does have a reference about “customer referrals” on it.

[160] These emails cannot be deemed to be inappropriate conduct on the part of the Applicant in the context where there is no evidence of guidance or limitations placed upon him in his communications with the students, the Respondent or the TAFE.

[161] The Respondent’s reliance upon the Applicant’s use of notepads with his private business logo on it is likely unconvincing in circumstances where there is no evidence of clear guidance, policy and requirement given to the Applicant not to use such. The Applicant also emphasised that these notepads were used for his internal course work rather than overtly with students. However, I note the evidence of Ms Brown in this regard that “on numerous previous occasions” she “expressed concern” in relation to his representations via his conduct (for example wearing shirts with his business logo) whilst he was conducting the course in a personal capacity, or via his business, and that she gave him a “reasonable and direct instruction to cease immediately”. There is no documentary evidence before the Commission of this warning, although her evidence of these discussions on this matter was straightforward and credible. 15

[162] I find that the Respondent did raise these matters with the Applicant but that any reliance upon such does not on its own provide a valid reason for dismissal in the circumstances. It is illogical that if the Respondent had “concerns” about what is a very serious matter, and had previously directed the Applicant in this regard, that no action at all was taken by the Respondent to enforce this or formally document this with the Applicant. However, taken as a whole I find that the Applicant’s conduct, in relation to his email to members and other business associates of the Respondent’s organisation, did found a valid reason for dismissal.

(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.

[163] I find that the Applicant was indeed contacted by Ms Brown on 30 November 2013 and that the Applicant’s dismissal occurred on this date. I find that the Applicant was dismissed after he refused to meet with the Respondent. I find that such request to meet was made at very short notice in circumstances where the Respondent was clearly aware that the Applicant was involved in his own private enterprise. The requirement that the Applicant attend the Respondent’s premises late on a Friday afternoon with no notice is unreasonable.

[164] I accept the Applicant’s assertion that he was happy to arrange to meet the Respondent later in the evening. However, I recognise that meeting with the Applicant had become an urgent issue for Ms Brown.

[165] In the circumstances of the students’ work requiring assessment for completion of the course and considering the context of the email the Applicant had sent to other members and business entities, it is understandable that Ms Brown considered it necessary to meet very quickly, to limit any potential damage to the organisation via perceptions from members reading the email and damage to her reputation and that of the Respondent or the course. The decision to dismiss the Applicant was made quickly and the rapid notification to the Applicant of the reason for that dismissal, gave the Applicant no real opportunity to respond in any meaningful way.

(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.

[166] The Applicant has relied upon several “meetings” following his dismissal of 30 November 2012 and what the Applicant stated was a failure to have a support person present. On the basis of the finding that the dismissal occurred on 30 November 2012, whether or not the Applicant was refused an opportunity to have a support person present at these post-dismissal meetings is not relevant to whether the dismissal was harsh, unjust or unreasonable. However it is clearly recognised that there were procedural deficiencies in terms of the timing of the requested meeting, of 30 November 2011, and the associated lack of the Applicant’s opportunity to respond or to have a support person present.

[167] The effect of s.387(d) of the Act is that the Commission must take into account any unreasonable refusal by the Respondent to allow the Applicant to have a support person present to assist at “any discussions relating to dismissal”. This section is directed to pre-dismissal discussions.

[168] The question is: did the Respondent unreasonably refuse the Applicant to have a support person present to assist in any discussions relating to dismissal? This requires the identification of any discussions relating to dismissal.

[169] The only discussion (where dismissal was under consideration) which arises on the material, prior to the Applicant’s dismissal, is the telephone conversation with Ms Brown on 30 November 2012. It does not seem that the Applicant was clearly advised prior to this, of the nature of the call, or of any opportunity to have a support person present for this conversation. It does not seem that the Applicant requested that one be present. However, given the rapid sequence of events, he was denied procedural fairness. I have taken into account however, the Applicant at this stage was well aware of the nature of the email he had sent to a number of members of the Respondent and that he had called into question the current well being of the organisation and the capacity of its management. He had also at this point been asked to gather for return the course documentation he would have been aware of the seriousness of the matter.

[170] Accordingly, given that the Applicant was the author of the email, as an employee and an experienced business operator, he would have been well aware that his conduct was critical of his employer. In addition, being a member of the organisation, did not entitle him the opportunity to send a critical email to other members and in particular business associates of the organisation, particularly in circumstances where it would have been known that he also acted as an employee and was privy to the Respondent’s daily operations and information.

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

[171] The Respondent contended that the Applicant was warned about his “unsatisfactory performance issues” (in prior discussions Ms Brown stated she held) and he was provided with advice about inaccurate/incomplete work that constituted fundamental breaches of his duties and responsibilities.

[172] The Respondent stated there were legitimate concerns about matters which, it says, amounted to “fundamental breaches” of his duties as an employee, however, no documentary evidence was lead to evidence such. Ms Brown’s correspondence of 26 November 2013, 4 days prior to dismissal, makes no explicit mention of any performance issue, and in fact, seems to be planning for the future conduct of the Applicant’s work. Taking into account Ms Brown’s evidence, I find that whilst this was the case, there was a clear uneasiness in the professional relationship between Ms Brown and the Applicant. Ms Brown was aware that the Applicant had applied for the role she was appointed to.

[173] In so far as the Respondent relies upon unsatisfactory performance by the Applicant I find that the Respondent held discussions with the Applicant about his alleged unsatisfactory performance before his dismissal but did so carefully, endeavouring to maintain the relationship. There was no elevation of these discussions to the level of formal counselling or warning..

[174] The Applicant has conceded that the Respondent is a small business. The Applicant also emphasised that the Respondent did not, at the time, have policies or procedures in place relating to performance management or termination of employees. The Applicant accepts that this would have affected the procedures followed.

[175] I have also taken into account that there is no evidence before the Commission that the Respondent has employees skilled in industrial relations or human resources. It does appear that some of the members may be legally qualified, but the area of employment law/industrial relations is a specialised area. There is no evidence that such skills are held within the Respondent’s organisation.

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

[176] No other matters have been referred to by the parties. It is recognised that this matter deals with an Applicant who was an employee while concurrently operating a business that held membership of the Respondent’s organisation and held both of these positions prior to Ms Brown commencing in her position. This was a position that the Applicant had sought. The Applicant’s email clearly constitutes an attempt to cause the membership to question Ms Brown’s stewardship of the organisation. While members are at liberty to do this, the fact that the email was written in a manner providing an insight into the operation of the organisation connotes a level of insubordination by the Applicant to Ms Brown.

Conclusion

[177] The procedural deficiencies in effecting the dismissal are noted in the context of the devolving employment relationship. Clearly the conduct of the Applicant was designed to cause a spill of the management positions to organise a motion of no confidence in Ms Brown. The Applicant’s conduct highlighted a conflict between his duty to the Respondent as an employee and his rights as a member of the organisation. This emerged after Ms Brown was appointed to the role of CEO.

[178] I find that the procedural deficiencies do not outweigh the Applicant’s behaviours and attitude demonstrated by the email. The Applicant’s conduct in sending the email, and its contents, were inconsistent with his ongoing employment relationship with the Respondent, and more specifically, with Ms Brown. The Applicant deliberately characterised a number of organisational matters in an email that was aimed to cause concern about the ongoing management of the organisation.

[179] Whilst some generic information was available on the changes in the organisation’s funding arrangements, the email (of the Applicant to a group of members and business associates), was designed to initiate concern amongst members in regard to the handling of the funding submission by the organisation, when in fact, the Applicant had been involved in the preparation of the funding submission and there were identified deficiencies in that submission. The Applicant was endeavouring to undermine the current management of the organisation, with a view to gaining proxy votes to influence the voting at the committee meeting.

[180] Whilst Ms Brown’s meeting request to the Applicant, gave minimal notice, the Applicant behaved in an obtuse manner in relation to the request to meet. In addition, leaving the course documents for collection in his foyer, without relevant communication about this, indicated his disregard for the documents and the on-going employment relationship.

[181] Based on the concerns the Applicant’s conduct raised, it was evidence that he was disgruntled that Ms Brown has been successful over him, to attain the role of CEO, it is unlikely he would have remained compliant with the requirements of the employer for any further period. It was obvious that he was not interested in working with Ms Brown or supporting her in the role of CEO.

[182] I have taken into account the procedural deficiencies (regarding the timing of the final meeting and the lack of an opportunity to have a support person present or an opportunity for the Applicant to respond), but also recognise that the dismissal was effected by a small business in emergent circumstances, particularly where one of its contracts were at risk due to the Applicant’s behaviour and that the Applicant was actively destabilising the organisation. Accordingly, on balance and for the aforementioned reasons, I do not find that the dismissal was harsh, unjust or unreasonable.

[183] The application pursuant to s.394 of the Act is therefore dismissed.

[184] I Order accordingly.

COMMISSIONER

1 Coco v Thuringowa Enterprise Centre Incorporated T/A The North Queensland Small Business Development Centre [2013] FWC 9734.

2 PN84 - PN86.

3 Respondent’s outline of submissions at paragraph 6.

4 Form F3 Employer’s Response to Application for Unfair Dismissal Remedy, filed 21 January 2013, item 5; Affidavit of Angelo Coco at paragraph 5.

5 Affidavit of Angelo Coco at appendix 6.

6 Affidavit of Angelo Coco at appendix 10.

7 Affidavit of Angelo Coco at paragraph 13.3.

8 Affidavit of Angelo Coco at paragraph 15.1.

9 Witness Statement of Ms Sharyn Brown at paragraph 59.

10 Respondent’s outline of submissions at 26.

11 Witness Statement of Ms Sharyn Brown at paragraph 8.

12 Witness Statement of Ms Sharyn Brown at exhibit 3.

13 Respondent outline of submissions at exhibit 6.

14 Respondent outline of submissions at exhibit 6.

15 Affidavit of Angelo Coco at annexure 4.

Printed by authority of the Commonwealth Government Printer

Angelo Coco v Thuringowa Enterprise Centre Incorporated T/A the North Queensland Small Business Development Centre

[2014] FWC 332

14 MAY 2014