Arthur Andrew Wheatcroft v KRT Contracting Pty Ltd

[2021] FWC 6132

[2021] FWC 6132

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Arthur Andrew Wheatcroft
v
KRT Contracting Pty Ltd
(U2020/16358)

COMMISSIONER WILLIAMS PERTH, 20 OCTOBER 2021

Application for an unfair dismissal remedy.

[1] This decision concerns an application made by Mr Arthur Andrew Wheatcroft (the Applicant or Mr Wheatcroft) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy. The respondent is KRT Contracting Pty Ltd (the Respondent).

[2] The Respondent asserts that it has nine employees and objects to the application on the ground that the employer is a small business and complied with the Small Business Fair Dismissal Code (the Code).

[3] At the hearing of this matter, the Applicant and Mr Gregory Pearson (Mr Pearson) gave evidence on behalf of the Applicant. Mr Koby Grant (Mr Grant) and Mr Andrew Long (Mr Long) gave evidence on behalf of the Respondent.

Factual findings

[4] The Applicant was employed by the Respondent as a truck driver. He started employment in January 2014 and was dismissed on Monday 14 December 2020.

[5] The Respondent has a contract with another company, namely Southern Steel, to transport their products. Southern Steel is a distributor of products including steel beams, bars, pipes, plate, mesh, fencing, roofing and walling.

[6] Southern Steel’s Operations Manager is Mr Steve Hutchinson.

[7] An incident occurred when the Applicant attended the Southern Steel yard on Tuesday 8 December 2020.

[8] In summary the Applicant’s evidence was that his vehicle’s trailer had been loaded such that he was unable to restrain the load properly to protect other road users and to be safe.

[9] Consequently, the Applicant asked for a beam to be removed from the trailer for safety reasons. This caused Mr Hutchinson to be in a bad mood with him.

[10] The Applicant however secured the load, departed from Southern Steel’s yard and commenced his journey according to the running sheet for that day.

[11] The Applicant had a number of deliveries in Mandurah, Pinjarra and Waroona.

[12] As the Applicant went through a roundabout, approximately 5.3 km from Pinjara, he felt the vehicle’s load move so he pulled into a parking bay for a fatigue break. This was at approximately 9.10 AM.

[13] The Applicant checked the load was safe and had a cup of coffee. His evidence was that this break was for about 10 minutes.

[14] Without his knowledge someone from Southern Steel had been following his truck in their car and took a photo of the Applicant while he was stopped.

[15] The Applicant understands that this was relayed to Mr Grant who then rang him on the phone. The Applicant says that Mr Grant was yelling at him for taking a break and that he told Mr Grant that he had stopped to check the load and have a coffee.

[16] The Applicant’s evidence was that Mr Grant said Mr Hutchinson had told Mr Grant that Southern Steel didn’t want the Applicant back in its yard. Mr Grant told the Applicant that he didn’t know if he could fix it.

[17] When the Applicant arrived back at the Respondent’s premises, he took his belongings from the truck and sent a text message to Mr Grant to let him know what he had done. The Applicant says that Mr Grant sent a message back to him saying that Mr Grant would speak to Mr Hutchinson the next day and let the Applicant know the outcome.

[18] The Applicant heard nothing more from Mr Grant for the rest of the week. On 14 December 2020 the Applicant sent Mr Grant a text message to find out where he stood.

[19] The Applicant’s evidence was that on 14 December 2020, Mr Grant rang him and said that Mr Hutchinson confirmed that the Applicant could not go back to the Southern Steel yard. As such, Mr Grant said he would have to let the Applicant go.

[20] The Applicant’s evidence was that he replied, ‘What for having a fatigue break and checking the load?”. To which the Applicant says that Mr Grant responded, “I told you to do it in the client yard!”.

[21] On 22 December 2020 the Applicant received an email from the Respondent confirming his termination.

[22] Relevantly, that email refers to the discussion with Mr Grant on 14 December 2020 and says as follows:

“As discussed with Koby on the phone last week, we received a written request (attached) from Steve Hutchinson – Operations Manager at Southern Steel – dismissing you with immediate effect (8 December 2020) from their worksite and operating as a driver on their behalf. Therefore, as there is no other outside work available to you as a result of this dismissal, it leaves us at the end of your employee with KRT Contracting.” 1

[23] The letter concludes by explaining that the Applicant would be paid out his unused annual leave entitlement and a Christmas bonus.

[24] The Respondent included in its material an undated email from Mr Hutchinson as follows:

“Hi Koby,

I regret to advise that Arthur Wheatcroft is no longer required to drive for Southern Steel. I would like to continue using KRT Contracting, but would like to stipulate that Arthur is no longer to drive for this business, effective from last Tuesday being 8 December 2020.

This decision was not taken lightly but had to be taken.

We appreciate your understanding with this matter.

Steve Hutchinson
Operations Manager
Southern Steel WA” 2

[25] The Applicant’s evidence was that he has never been warned about his performance or counselled in any way.

[26] The Applicant’s evidence is that Mr Hutchinson is a bully and is constantly abusive towards drivers. He says that Mr Grant is aware of this but does nothing.

[27] The Applicant’s evidence was that the Respondent had always instructed him as a driver not to put a fatigue break on the Southern Steel running sheet, because Southern Steel would not pay for the breaks. Further, his evidence was that he certainly was not warned for not recording fatigue breaks.

[28] The Applicant’s evidence was that there were no warnings to him regarding issues to do with the Southern Steel contract and as for running sheets he completed those as instructed. 3

[29] The Applicant’s evidence was that the Respondent has other contracts he could have been deployed to when he was banned from the Southern Steel yard.

[30] The Applicant says that he has never been asked by the Respondent to drive for another client company however, he would obey the directions and instructions of his employer if this was requested.

[31] Mr Pearson commenced work with the Respondent as a truck driver in July 2019.

[32] hE says that Mr Hutchinson treated him the same as other employees with verbal bullying and incessant phone calls, altering the volume of workload across the day, and frequently harassing drivers around the unrealistic timeframes he would set.

[33] A number of drivers have complained to the Respondent as well as the management of Southern Steel over the last two years to no avail.

[34] The evidence of Mr Long was that he started working for the Respondent in 2012 as a truck driver, primarily to deliver steel for Southern Steel.

[35] Mr Long was given the role of leading hand in 2015.

[36] He has been tasked with explaining to new drivers what the job entails, explaining Southern Steel’s paperwork, the truck’s own day sheet, how to manage fatigue breaks and everything that is required of a driver that Southern Steel have requested they do.

[37] One of the requirements is to ring or message when they have done their last drop and are on their way back to the yard when they are held up at a delivery or have a problem with the product being delivered.

[38] Drivers are required to come to Mr Long with any problems that may arise and it’s his job to approach Mr Hutchinson to get the issue sorted out. Generally, they have gotten along and been able to get things fixed. 4

[39] Mr Long’s evidence was that Mr Hutchinson would commonly send out a group message to drivers twice a day to find out where they were, or to let them know that more work was being added to the day. Even Mr Pearson would sometimes receive a phone call from Mr Hutchinson to find out where he was at with his run. Sometimes Mr Hutchinson would give Mr Pearson information about the places he was delivering to. His evidence was that this would happen maybe 2 to 3 times a day or sometimes not at all.

[40] Mr Long’s evidence was that the Applicant had not come to him about Mr Hutchison bullying the Applicant. They did have conversations about the Applicant’s issues with Mr Hutchinson, but the Applicant had never approached Mr Long to say that Mr Hutchinson was bullying him. 5

[41] Under cross-examination Mr Long explained that in these conversations the Applicant would ask why this was happening to him. Mr Long responded “...there is a protocol in place that Southern Steel require us to follow. You’re not doing it. I would expect someone to be on my back about things like this, as well.” 6

[42] Mr Grant is currently the Sole Director of the Respondent. He has been a director since 2014 when the business began operations.

[43] By trade Mr Grant is a heavy-duty mechanic and truckdriver.

[44] Mr Grant’s evidence was that the Applicant was employed each weekday to deliver products for Southern Steel.

[45] Mr Grant’s evidence was that the Applicant was summarily dismissed on 14 December 2020 by the Respondent, after he was sacked from the site by Southern Steel on 8 December 2020. He says that since mid-2020, the Applicant has been a problematic driver who had an attitude at work and did not perform well in comparison to others. Mr Hutchinson had relayed to Mr Grant, on several occasions, that the Southern Steel state manager told Mr Hutchinson to look at using other transport companies to do the work being done by the Respondent. This move would have cost the Respondent their main source of revenue.

[46] He says that prior to 8 December 2020, on three separate occasions, Mr Hutchinson raised issues with the Applicant in relation to the Applicant’s attitude and poor performance. On each of these occasions, Mr Hutchinson warned Mr Grant that due to those reasons he did not want the Applicant back on site. On each occasion Mr Grant backed the Applicant to keep him on the site as a driver.

[47] Mr Grant says that, on this latest occasion, Mr Hutchinson informed him that they had an employee monitoring the Applicant’s driving. Further, Mr Hutchinson had evidence that the Applicant had taken a long break at a rest spot and that this was the second break witnessed that day. Mr Hutchinson told him that without a legitimate reason for these breaks, he was going to remove the Applicant from the Southern Steel site immediately.

[48] Mr Grant says that when he asked the Applicant why he had pulled his truck over, the Applicant told him that he was making a coffee and ringing his wife back. Mr Grant says that during another conversation with the Applicant the following week, his story changed to claiming that he had stopped to secure his load as well as take a fatigue break.

[49] Mr Grant’s evidence was that the Southern Steel employee who followed the Applicant and took photos of his vehicle on 8 December 2020, confirmed to Mr Grant that he did not witness the Applicant exit the truck to check or secure his load.

[50] Mr Grant told the Applicant that he would speak with Mr Hutchinson but wasn’t confident that he could get the decision to exclude him from the Southern Steel site reversed.

[51] The Applicant was on personal leave for a few days, which had been prearranged, therefore Mr Grant did not speak to the Applicant until the week after the incident.

[52] Mr Grant’s evidence in chief was that he made the decision to dismiss the Applicant because the Applicant was no longer allowed on the Southern Steel site, had ignored several warnings to comply with various procedures regarding other issues, and knew that the Respondent’s business with Southern Steel was under threat.

[53] Under cross-examination Mr Grant agreed that ultimately the reason the Applicant was dismissed was that Mr Hutchison had said he was no longer to come to Southern Steel. 7

[54] Mr Grant researched the situation to understand what was involved in dismissing an employee under these circumstances. He understood that as a small business with less than 15 employees the Code applied. Mr Grant says that the Code states that the employer does not have to provide any notice of termination when the reason for termination was serious misconduct.

[55] Mr Grant gave evidence about warnings given to the Applicant on 23 June 2020, 16 September 2020, and 25 November 2020. On 1 December 2020 Mr Grant says that he spoke to the Applicant about his attitude and poor performance.

[56] Mr Grant’s evidence was that he did not have any other work that he could deploy the Applicant to. The Respondent does do ad hoc work with other small businesses, but he places his best performing drivers on that work, which they have done regularly, and Mr Grant was not going to change that and risk losing this work.

[57] Mr Grant’s evidence was that there have been a couple of occasions in the past where the Applicant has been tasked with driving for another company however, the Applicant was never happy about being moved from Southern Steel work and he had made that clear.

[58] Mr Grant’s evidence was that the Applicant never discussed with him or Mr Pearson his allegation that Mr Hutchinson is a bully.

[59] Under cross-examination, Mr Grant’s evidence was that the Applicant was dismissed during their telephone conversation on 14 December 2021 and it was confirmed later by email on 22 December 2021. 8

[60] Mr Grant’s evidence was that his view was that the Applicant had been dismissed for serious misconduct notwithstanding this was not mentioned in the letter of 22 December 2021. 9

[61] The Respondent asserts in its reply to the application that at the time of the Applicant’s dismissal it employed nine employees, which has not been challenged and I accept.

The legislation

[62] Section 385 of the Act prescribes that when a person has been unfairly dismissed, which includes the requirement that the dismissal was not consistent with the Code. This section is set out below.

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.

[63] The Code is set out below.

“Commencement

The Small Business Fair Dismissal Code comes into operation on 1 July 2009.

Summary dismissal

It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee's conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.

Other dismissal

In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job.

The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.

The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.

Procedural matters

In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.

A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to the Fair Work Commission, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.”

[64] Section 387 of the Act prescribes that the matters the Commission must take into account when considering whether a dismissal was harsh, unjust or unreasonable. This section is set out below.

“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.”

Submissions

[65] The Respondent submits that the reasons for the Applicant’s summary dismissal was serious misconduct.

[66] The Respondent submits that it has complied with the Code and so the dismissal cannot be unfair.

[67] If the Respondent is unsuccessful in its jurisdictional objection, the Respondent argues that the Applicant committed a serious breach of Occupational Health & Safety procedures by failing to consistently fill out and manage the recording of fatigue breaks in daily trip sheets. Further, that the Applicant failed to follow procedures that had been discussed previously about managing breaks while delivering the customer’s goods.

[68] Consequently, the Respondent submits that this unfair dismissal remedy application should be dismissed.

[69] For the Applicant it is submitted that the primary reason for the dismissal was that Southern Steel had placed a ban on the Applicant attending their yard.

[70] The Applicant submits, in terms of the jurisdictional objection, that the evidence does not support a conclusion that the Respondent held a reasonable belief that the Applicant’s conduct was sufficiently serious to justify immediate dismissal.

[71] The most reliable source of the Respondent’s objective belief at the time of the dismissal is contained in the Respondent’s email to the Applicant dated 26 December 2020, which confirmed his dismissal.

[72] That email stated that having received a written request from Southern Steel “dismissing” the Applicant from their worksite, preventing him from operating as a driver on Southern Steels behalf, and there being no other work available for him, the Applicant was dismissed.

[73] Given this was the reason for the dismissal the Respondent did not hold a reasonable belief that the Applicant’s conduct was sufficiently serious to justify immediate dismissal. The Respondent has not complied with the Code therefore, the Commission should dismiss the jurisdictional objection.

[74] Turning to consider the application on its merit for the Applicant, it is submitted that the Applicant stopping to check his load for safety reasons and taking a fatigue break was not a valid reason for his dismissal. Nor was the irrational decision of the Respondent’s client to prevent him working from their yard a valid reason for his dismissal.

[75] The Applicant was not given an opportunity to respond to the reasons he was dismissed before the decision was made.

[76] The Applicant was never warned during his employment despite the attempts in the dismissal letter to refer to previous warnings.

[77] The Respondent is a small business that had sufficient management skills and experience to research its rights and obligations before the dismissal occurred.

[78] Consequently, the Commission should conclude that the dismissal was unfair and, in this case, reinstatement with compensation is the appropriate remedy.

Consideration

[79] With respect to the Respondent’s objection that the dismissal was consistent with the Code, as the Applicant submits, I accept the Respondent’s reasons for the dismissal are contained in its email of 22 December 2020. This is evidence of the employer’s belief at the time of deciding to dismiss the Applicant.

[80] This email explains that Southern Steel’s decision to no longer allow the Applicant to operate as a driver on their behalf and the absence of any other available work was the reason the Applicant’s employment ended. This was the reason the Respondent dismissed the Applicant.

[81] The references in the letter in the third paragraph to prior warnings and conversations about the Applicant’s performance and work ethic concerns conduct that occurred before the events of 8 December 2020. Self-evidently, the Respondent had not believed, at the time this conduct occurred, that it was sufficiently serious as to warrant the Applicant’s immediate dismissal, otherwise he would have been dismissed prior to 8 December 2020.

[82] It is clear that only because Mr Hutchinson advised Mr Grant that the Applicant would not be allowed to attend Southern Steel’s yard again and could not drive on their behalf the Respondent dismissed the Applicant. The decision by Mr Hutchinson coupled with the absence of other available work was the reason for the Applicant’s dismissal.

[83] In the circumstances, I am not satisfied the Respondent did hold a reasonable belief that the Applicant’s conduct was sufficiently serious to justify immediate dismissal.

[84] Separately, whilst Mr Grant did ask the Applicant for an explanation before making the decision to dismiss him, he did not make that decision after a reasonable investigation. This is because he did not first explain to the Applicant what his conclusions were as to what had occurred on 8 December 2020, which was contested, before he made the final decision to dismiss.

[85] Consequently, I am not satisfied that the dismissal was consistent with the Code and consequently I reject the Respondent’s jurisdictional objection.

[86] Consequently, the Commission must next consider the matters prescribed in section 387 of the Act.

Valid reason

[87] In the case of DA v Baptist Care SA 10a Full Bench of the Commission explained that the concept of capacity in section 387 (a) of the Act, as a basis for a valid reason for dismissal, goes beyond the physical or skill capacity of an employee and also encompasses situations where employees do not have a necessary licence, certification, qualification or approval to lawfully perform the inherent requirements of their job. The Full Bench further considered, as follows, the responsibilities of an employer in circumstances where the capacity of the employee to perform their job is affected by the actions of a third party.

“[32] Second, in a situation where an employee’s capacity to perform the inherent requirements of their job is affected by the actions of a third party, the employer still has an obligation to treat the employee fairly. The principle in this respect was stated by Deputy President Asbury in Stevens v ISS Property Services Pty Ltd, in the context of a situation where the work capacity of an employee of a labour hire business is affected by the actions of the host employer, as follows:

“[12] A number of cases have considered the manner in which the matters in s. 387 of the Act are considered in circumstances where an employer provides labour to a client and the client directs the employer to remove the employee from a site. As a Full Bench of the Commission observed … in Donald Pettifer v MODEC Management Services Pty Ltd (Pettifer) labour hire arrangements in which a host employer has the right to exclude a labour hire employee from its workplace, are becoming a common part of the employment landscape in Australia. The reality for companies in the business of supplying labour is that they frequently have little if any control over the workplaces at which their employees are placed and the rights of such companies in circumstances where a client seeks the removal of an employee are limited. However, this is not a basis upon which companies in the business of supplying labour to clients can abrogate responsibility for treating employees fairly when dismissal is the result of removal from a particular site and the fairness of the dismissal is considered with reference to the matters in s. 387 of the Act.”

[33] The above is founded upon a similar formulation of the principle stated in Deputy President Asbury’s decision in Kool v Adecco Industrial Pty Ltd, which was expressly approved by Full Benches in Pettifer v MODEC Management Services Pty Ltd and Tasmanian Ports Corporation Pty Ltd t/a Tasports v Gee. Considerations which may arise in an assessment of whether the employer has acted fairly towards the employee in the type of situation described may include the extent to which the employer has the power to alter, modify or challenge the outcome determined by the third party, the extent to which the employer has exercised that power, and the capacity of the employer to redeploy the employee to a position where the employee’s capacity is not affected by the third party’s conduct. In Pettifer, the dismissal was found not to be unfair in circumstances where it was demonstrated that the labour hire employer was bound by its contract with the host employer to remove an employee from the worksite where instructed to do so by the host employer, and where the employer actively explored opportunities for redeployment but was unable to identify any suitable alternative position. By contrast, in Tasports, the dismissal was found to be unfair in circumstances where the employer did not place its contract with the host employer into evidence and thus did not demonstrate that it had no recourse to preserve the employee’s employment at the host employer’s worksite, nor did it adequately investigate options for the employee’s redeployment.” (References omitted)

[88] Mr Wheatcroft’s case is one where the capacity of the Applicant to perform his job was affected by the actions of a third party, namely, the Respondent’s largest client Southern Steel.

[89] Southern Steel advised the Respondent it would no longer allow the Applicant to be a driver delivering its products.

[90] The question then is whether the Respondent acted fairly towards the Applicant in the situation it found itself, where its largest client declined to allow the Applicant into its yard and would not allow him to be a delivery driver of its products.

[91] The evidence is that Southern Steel had previously threatened to take this action but had been talked down from doing so by Mr Grant. Following the events of 8 December 2020, Mr Grant again was in a situation where he was trying to persuade Southern Steel not to prevent the Applicant from driving on its behalf, but on this occasion was not successful.

[92] It is clear from the letter, dated 22 December 2020, confirming the termination that the Respondent considered whether it had other work it could deploy the Applicant to, but there was no other work it could reasonably deploy him to without putting this non-contract work at risk in Mr Grant’s view.

[93] The Respondent has acted fairly towards the Applicant in the circumstances. Consequently, in this case, I am satisfied that there was a valid reason for the dismissal of the Applicant related to his capacity.

Notification of the reason

[94] I am satisfied that the Applicant was notified of the reason for his dismissal by the Respondent, certainly in the email dated 22 December 2020.

Opportunity to respond

[95] The Applicant was given an opportunity to respond to the reason related to his capacity when Mr Grant discussed Southern Steel’s threat to deny him to continue as a driver delivering their goods.

Refusal to allow a support person

[96] There was no refusal to allow the Applicant to have a support person present during the discussions.

Warnings about unsatisfactory performance

[97] The dismissal was not directly related to unsatisfactory performance but rather the third party, Southern Steel’s decision to deny the Applicant continuing as a driver delivering their goods.

Size of the employer’s enterprise and dedicated Human Resource Management specialists or expertise

[98] The Respondent is a small business and has no dedicated human resource management specialists or expertise, which explains their misunderstanding of their rights and obligations under the Code.

Other matters

[99] The Respondent’s misinterpretation of the concept of summary dismissal for serious misconduct resulted in the Applicant being dismissed summarily in circumstances where, in the Commission’s view, the proper course would have been for him to be dismissed with notice or pay in lieu of notice.

Conclusion

[100] In these circumstances, the Respondent was placed in an invidious situation due to the conflict between the Applicant and Mr Hutchinson.

[101] The Applicant had been employed almost exclusively as a driver delivering Southern Steel’s product, which was the Respondent’s largest client. He was no longer able to do this work.

[102] The Respondent’s judgment was that, because of other shortcomings of the Applicant, it was a risk to the Respondent to allow the Applicant to do any of the limited other work available, which in any event was already being done by the Respondent’s other drivers.

[103] The Respondent had no choice in the circumstances but to dismiss the Applicant.

[104] However, the Respondent’s view that what occurred involved serious misconduct by the Applicant was incorrect.

[105] Because the dismissal was erroneously affected without notice or pay in lieu of notice I have decided that the dismissal was harsh.

[106] Consequently, I find that the Applicant was unfairly dismissed.

Remedy

[107] I am satisfied that it is not appropriate to reinstate the Applicant in circumstances where he has no capacity to work for the Respondent’s largest client and there is no other work the Respondent can reasonably deploy him to.

[108] I do consider that an order for payment of compensation is appropriate in all the circumstances of the case.

[109] Considering the requirements of section 392 of the Act there is no evidence that an order of compensation would affect the viability of the Respondent.

[110] The Applicant had been employed for nearly 7 years at the time of his dismissal. He is over 45 years of age. His hourly rate of pay was $29.

[111] If the Applicant had not been dismissed as he was, the remuneration he would have received would be the equivalent of the 5 weeks’ notice the Respondent would have been required to give had he not been dismissed summarily. His weekly pay for 38 hours was $1,102. The amount for 5 weeks is $5,510.

[112] I am satisfied that the Applicant has made appropriate efforts to mitigate his loss.

[113] There is apparently no remuneration the Applicant has earned since his dismissal.

[114] Given the Applicant was the only person who gave evidence at the hearing and who was involved in the events on 8 December 2020, the evidence does not satisfy me that the Applicant committed misconduct that contributed to the employer’s decision to dismiss him. Again, the decision of Southern Steel to prevent him continuing to drive for them and the lack of other work the Respondent could reasonably deploy him to was the reason for his dismissal.

[115] Consequently, there will be no reduction of the compensation amount on account of misconduct.

[116] The amount of compensation to be ordered is $5,510 gross from which tax will be deducted to be paid within 21 days.

[117] An Order [PR735082] to that effect will now be issued.

Appearances:

P. Mullally of Workclaims Australia for the Applicant.
K. Grant on behalf of the Respondent.

Hearing details:

2021.
Perth:
July 28.

Printed by authority of the Commonwealth Government Printer

<PR734907>

 1   Exhibit R3 at document 14.

 2   Exhibit R3 at document 4.

 3   Exhibit A2 at 10-12.

 4   Transcript of Proceedings, PN157.

 5   Transcript of Proceedings, PN156.

 6   Transcript of Proceedings, PN169.

 7   Transcript of Proceedings, PN215.

 8   Transcript of Proceedings, PN215 – PN221.

 9   Transcript of Proceedings, PN227 – PN230.

 10   [2020] FWCFB 6046.