Artur Miribyan v Complete Welding International Unit Trust T/A Complete Welding International Services

[2018] FWC 2815

[2018] FWC 2815

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Artur Miribyan
v
Complete Welding International Unit Trust T/A Complete Welding International Services
(U2017/9029)

DEPUTY PRESIDENT MASSON MELBOURNE, 1 JUNE 2018

Application for an unfair dismissal remedy - dismissal found to be unfair - reinstatement not appropriate - compensation not awarded due to no loss of post termination earnings.

[1] On 24 August 2017, Mr Artur Miribyan (the Applicant) made an application pursuant to s.394 of the Fair Work Act 2009 (the Act) for a remedy in respect of his dismissal by Complete Welding International Unit Trust T/A Complete Welding International Services (the Respondent).

[2] The application indicated that the date that the Applicant’s dismissal took effect was 3 August 2017.

[3] On 31 August 2017, the Respondent filed a response to the unfair dismissal application.

[4] The matter was listed for conciliation before a Fair Work Commission Conciliator on 13 September 2017 and a further Member Assisted Conciliation on 7 March 2018, but it remained unresolved at the end of the conciliation process. Consequently, the matter was listed for hearing before me on 17 May 2018.

[5] The Applicant filed written submissions and witness statements with the Fair Work Commission (the Commission) on 16 October 2017. The Respondent filed written submissions and witness statements in reply with the Commission on 6 November 2017.

[6] Section 396 of the Act requires the determination of four initial matters before consideration of the merits of the application. Neither party put forward that any of these initial matters required such consideration. In relation to the elements within s.396 of the Act, I find that the Applicant’s application was lodged with the Commission within the 21 day period for making such applications; that at the time he was dismissed he was a person protected from unfair dismissal; and that the questions of the Small Business Fair Dismissal Code or genuine redundancy do not apply.

The Hearing

[7] The Commission granted permission under s.596 of the Act for both parties to be represented by lawyers or paid agents. At the hearing, the Applicant was represented by Mr Leo Close who called the Applicant to give evidence.

[8] At the hearing the Respondent was represented by Ms Emily Dempster, Solicitor of Madgwicks Lawyers. Ms Dempster called three witnesses:

Mr Nigel Rushton: Production Manager of the Respondent

Mr Kade Hellier: Leading Hand of the Respondent

Mr Neil Jakupi: Leading Hand of the Respondent

Background and Evidence

[9] The Respondent is engaged in the production and manufacture of pipes for use in fire protection systems in shopping centres and underground car parks. The Respondent employed approximately 32 employees at its Dandenong Victoria operations at the time of the Applicant’s dismissal.

[10] The Applicant has worked for the Respondent on two separate occasions. He was initially employed in the position of a driller between 2006 and 2012 at the conclusion of which he resigned.

[11] The Applicant recommenced employment with the Respondent on 7 March 2016 in the position of driller, and was subsequently dismissed for alleged serious misconduct on 3 August 2017. The Applicant received verbal notice of the termination of his employment on 3 August 2018, which was subsequently confirmed in an Employment Separation Certificate dated 1 September 2017. 1 On termination of his employment the Applicant received four weeks’ pay in lieu of notice in addition to his statutory entitlements.

[12] The Applicant was dismissed for alleged serious misconduct, that of:

(a) Swearing at the Production Manager, Mr Nigel Rushton, in an insulting manner in an exchange on 3 August 2018; and

(b) On multiple occasions, failing to comply with Mr Rushton’s lawful and reasonable directions to not leave his work station to talk to other employees.

Evidence of Applicant

[13] The Applicant claimed that he had been subjected to bullying and harassment throughout his employment with the Respondent during both periods of his employment due to his lack of English language speaking skills. 2 During his first period of employment he had lodged a formal bullying complaint against, Mr Kade Hellier. The complaint was dealt with by way of formal mediation. No formal complaint was raised by the Applicant in relation to bullying during his second period of employment.3

[14] The Applicant stated that the incident that led to his termination occurred at approximately 9.50 am on 3 August 2017 just before the morning tea break. He stated that he was working at his workbench and called out to his workmate, Hosein Kheirabadi (Hamy) who was working at an adjacent workbench, enquiring as to how he was. At that time, the Applicant was aware that Mr Rushton had just been talking with Mr Hellier and was standing just behind the Applicant’s workbench. 4

[15] The Applicant claimed that his conversation with his workmate lasted less than a minute and that at this point Mr Rushton approached him and started swearing and loudly yelling to “…fuck off home”. 5

[16] This exchange caused the Applicant to become angry and frustrated and at which point Mr Rushton then repeated to him, “didn’t I tell you to fuck off home”. In response, the Applicant, later claiming to be in a state of shock, threw a piece of pipe onto his workbench and then swore at Mr Rushton, telling him to “fuck off.” 67 The Applicant left the site after washing up.

[17] The Applicant gave evidence that he did not receive a formal letter stating that he had been summarily dismissed nor addressing the reasons for the dismissal. 8 The Applicant understood, however, from the exchange with Mr Rushton on 3 August 2018 that he had been dismissed that day.9 He subsequently requested and received an Employment Separation Certificate dated 1 September 201710 which indicated that the reason for his dismissal was “misconduct”. The Applicant conceded that he had received four weeks’ pay in lieu of notice plus his accrued leave entitlements on termination.

[18] The Applicant denied that he had received any prior formal warnings in relation to his performance and/or conduct. 11 The Applicant specifically denied having been regularly warned by Mr Rushton against leaving his workstation to talk with workmates when he was required to be working. As regards the claimed performance management meeting held in June 2017, while the Applicant agreed that a meeting had taken place, he claimed that the meeting was arranged with Mr Rushton at his request so that he (the Applicant) could raise his concerns regarding how he was being treated in the workplace.12 He denied that the meeting was arranged at Mr Rushton’s initiative to discuss performance concerns held with respect to the Applicant.

[19] The Applicant also gave evidence that he had been diagnosed with a periumbilical hernia and applied for WorkCover payments on 23 August 2018 following the termination of his employment. 13 The claim was subsequently approved. The Applicant, while unable to provide specifics as to the date from which workers’ compensation payments had commenced, acknowledged that he had been receiving workers’ compensation payments since his termination of employment and that those payments were continuing.14

[20] The Applicant confirmed during cross examination that he had not sought alternate employment since his termination but that this was due to his medical condition from which he was still recovering and still receiving workers’ compensation payments. 15

[21] In his evidence, the Applicant stated that he did not wish to be reinstated to his former position because of the treatment he had been subjected to and for which he was seeking compensation.

Evidence of Mr Nigel Rushton

[22] Mr Rushton gave evidence that he had been employed by the Respondent since in or around 1984 and that he had been in his current role of Production Manager since 2002. 16 In that capacity he had supervised the Applicant during both periods of the Applicant’s employment.

[23] Mr Rushton gave evidence that the Applicant had made a complaint of bullying by Mr Hellier during his first period of employment. Mr Rushton stated that he believed the issues between the Applicant and Mr Hellier had been resolved through the formal mediation that was conducted. He also stated that as a consequence of the Applicant’s complaint the Respondent had subsequently developed and implemented a policy on bullying and harassment. Mr Rushton further stated that the Applicant had not raised any complaints of bullying in his second period of employment and denied that there had been any such bullying of the Applicant as claimed by him. 17

[24] Mr Rushton gave evidence that prior to the Applicant advising him of his hernia, the Applicant’s duties as a driller included the lifting of pipes weighing up to 30 kilograms. Mr Rushton stated that he became aware of the Applicant’s hernia condition in late 2016.

[25] In January 2017, Mr Rushton noticed a reduction in the Applicant’s productivity and also that he was spending a lot of time away from his work station talking with other employees and taking longer coffee breaks. When challenged by Mr Rushton regarding his productivity, the Applicant stated that he was having trouble with his hernia. According to his evidence, Mr Rushton responded to this feedback by providing some assistance by re-allocating the “marking” stage component of the Applicant’s work to other employees. 18

[26] Mr Rushton stated that the Applicant’s productivity failed to improve despite Mr Rushton regularly advising the Applicant against distracting or talking to other employees when he was required to be working. 19 Mr Rushton’s concerns culminated in him arranging a performance management meeting in June 2017 at which the Applicant and he participated. The Applicant was accompanied by a friend and work colleague, Mr Oganes Israelian.

[27] Mr Rushton stated that during the performance meeting with the Applicant, he raised his continuing concerns about the Applicant’s productivity; his regularly leaving his work station and talking to other employees; and that he (the Applicant) had continued to do this despite being directed not to do so. The Applicant was also advised that he would be moved temporarily to a different work station, the threading machine, which did not involve the same pace of work as the drilling work station. Mr Rushton stated that despite having held the performance meeting, the Applicant continued to leave his workstation and distract other employees. 20

[28] Mr Rushton gave evidence that he was aware that the Applicant’s hernia condition was impacting his work performance and for this reason chose not to formally manage the Applicant’s poor performance. Mr Rushton, however, maintained with the Applicant that he should not distract other employees. 21

[29] Mr Rushton stated that prior to morning tea on 3 August 2018, he was standing with Mr Hellier in the factory and noticed that the Applicant was away from his workbench talking with a work colleague, Hamy. According to his evidence, Mr Rushton then went and spoke to the Applicant and Hamy, advising them to return to their workstations and resume working. In response, the Applicant questioned what the problem was, to which Mr Rushton stated that he then told the Applicant words to the effect, “You are not here to socialise. You are here to work.” 22

[30] According to Mr Rushton, after this exchange the Applicant returned to his workstation and slammed a piece of elbow pipe into the workbench and yelled words to the effect, “I can’t fucking do anything. I can’t even fucking talk.” At this point, Mr Rushton went over to the Applicant’s workstation to demand to know why he had slammed the pipe onto the bench. Mr Rushton then stated to the Applicant that he was there to work and if he did not like that he could go home. According to Mr Rushton, the Applicant then variously yelled at him to “Get fucked” and “fuck off.” Mr Rushton then stated to the Applicant that he was fired and that he should go home, following which the Applicant swore at him again. 23

[31] Mr Rushton gave evidence that he regarded the Applicant’s conduct of yelling and swearing at him as completely unacceptable and as constituting serious misconduct. He conceded, however, that had he chosen to give the Applicant an opportunity to respond he would have sent the Applicant home and arranged a disciplinary meeting to consider the incidents of 3 August 2018. 24

[32] Mr Rushton also conceded that no formal record was made of the performance meeting conducted with the Applicant in June 2017. 25 When challenged under cross examination regarding the processes followed by the Respondent in performance management and discipline, Mr Rushton stated that the Respondent had engaged a part-time HR advisor approximately six months prior to the Applicant’s dismissal26 but that it (the Respondent) was still growing as a business and still developing its HR systems.27

Evidence of Mr Kade Hellier

[33] Mr Hellier gave evidence that he commenced employment with the Respondent in 2002 in the position of machine operator and that he was promoted to his current position of Leading Hand in or about 2015. 28 Mr Hellier acknowledged that during the Applicant’s first period of employment he (the Applicant) had made a bullying complaint against Mr Hellier which led to formal mediation. At the conclusion of the formal mediation, Mr Hellier stated that the issues were resolved and that there were no further issues between the Applicant and himself.29

[34] Mr Hellier gave further evidence that he was responsible for the supervision of the Applicant on the commencement of his second period of employment. According to Mr Hellier, there were no issues between himself and the Applicant during the second period of employment and that they “worked fine together”. 30

[35] Mr Hellier stated that from about January 2017 he observed a change in the Applicant’s attitude and work performance. In particular, that he demonstrated a reluctance to accept direction, dragged his feet on tasks, took excessive coffee breaks and spent too much time talking with other workers which distracted them from their work. Mr Helier claimed that he raised the issue with Mr Rushton in or around March 2017, following which the Applicant was ultimately moved to the threading machine workstation which was less critical from a factory productivity perspective. 31

[36] Mr Hellier gave evidence that on 3 August 2018, just prior to morning tea, he was with Mr Rushton on the factory floor discussing the day’s work. During the discussion, Mr Rushton walked away from Mr Hellier, following which Mr Hellier heard a loud banging. At this point he turned to observe Mr Rushton walking towards the Applicant’s work station.

[37] Mr Hellier stated that he could not hear what Mr Rushton was saying at that point but that he heard the Applicant loudly telling Mr Rushton to “fuck off” on four different occasions. Mr Hellier then heard an exchange whereby Mr Rushton told the Applicant that he was there to work and if didn’t like it he could leave. Mr Hellier then claimed to have heard the Applicant ask Mr Rushton “if he was sure” at which point Mr Rushton stated to the Applicant that he was fired and that he should leave. 32

Evidence of Mr Neil Jakupi

[38] Mr Jakupi gave evidence that he commenced employment with the Respondent in 1998 in the position of machine operator and was promoted to his current position of leading hand in 2005. Mr Jakupi stated that he worked approximately fifteen metres from the Applicant’s former workstation and had direct contact with him on a daily basis. 33

[39] Mr Jakupi gave further evidence that from early 2017 he noticed that the Applicant was working at a slower pace than he had previously worked at, was taking a lot of coffee breaks and was often away from his workstation. In or about March 2017, the Applicant advised Mr Jakupi that he was suffering from a hernia; did not know how he had developed the hernia; and that the wait for surgery in the public health system was taking a long time. On subsequent enquiries made by Mr Jakupi with the Applicant regarding his medical condition, the Applicant advised Mr Jakupi that he had not done anything about the hernia yet. 34

Evidentiary Findings

[40] I am satisfied on the evidence that an exchange took place between the Applicant and Mr Rushton just prior to morning tea on 3 August 2018, at the conclusion of which the Applicant was dismissed by Mr Rushton and immediately left the Respondent’s premises after washing up. There is, however, a contest between the parties as to the nature of that exchange and the respective conduct of Mr Rushton and the Applicant.

[41] The evidence of the Applicant was that he was working at his workstation and engaged in a brief conversation with his work colleague Hamy, following which he claimed Mr Rushton approached him and started swearing at him. The Applicant conceded that he reacted to Mr Rushton’s swearing by throwing down a piece of pipe on the bench and telling Mr Rushton to “get fucked”. The Applicant claimed that his reaction was due to frustration and humiliation arising from the bullying he had experienced in the workplace and Mr Rushton swearing at him. The Applicant’s reaction led to Mr Rushton subsequently terminating his employment.

[42] Mr Rushton provided a different version of events in which he claimed to have observed the Applicant talking with Hamy, away from his workstation for approximately ten minutes. This led to Mr Rushton challenging the Applicant and Hamy and directing them to resume their work. According to Mr Rushton, the Applicant then returned to his workbench, slammed the pipe on the workbench and swore at Mr Rushton. Mr Rushton stated that this led to a further exchange culminating in the Applicant’s summary dismissal.

[43] Mr Hellier stated he had heard only some of the exchange between the Applicant and Mr Rushton. That portion of the exchange that was overheard favoured Mr Rushton’s version of events in that Mr Hellier claimed to have only heard the Applicant swearing at Mr Rushton and Mr Rushton subsequently confirm the Applicant’s dismissal.

[44] The Respondent claimed the exchange between Mr Rushton and the Applicant occurred against a backdrop of regular counselling of the Applicant in relation to his work performance and productivity. The Applicant’s performance deterioration was acknowledged by the Respondent to be at least partly attributable to the Applicant’s hernia condition, that condition not being in contest in the proceedings. Notwithstanding the Respondent’s acknowledgement of the Applicant’s condition, Mr Rushton’s evidence was that he had regularly spoken to the Applicant about his absences from his workstation and distraction of his work colleagues. This, according to Mr Rushton, culminated in a formal meeting in June 2017 arranged at his initiative.

[45] For his part, the Applicant denied being spoken to by Mr Rushton at any point regarding his work performance and productivity and specifically contradicted Mr Rushton’s evidence regarding the June 2017 meeting. The Applicant claimed to have initiated the meeting in order to raise concerns about his treatment in the workplace. Regrettably, neither party produced independent evidence by way of a witness to the meeting or a formal record of the meeting purpose and outcome in support of the respective versions of events.

[46] There is consistent evidence from Mr Rushton, Mr Hellier and Mr Jakupi that from at least early in 2017 they each observed deterioration in the Applicant’s productivity and performance, acknowledged by them as partly attributable to the Applicant’s hernia condition. The evidence in relation to the Respondent’s concerns regarding the Applicant’s performance is supported by the steps taken by Mr Rushton to initially relieve the Applicant of “marking” duties and then to subsequently transfer the Applicant to the threading machine work station. The reallocation of work was to accommodate the Applicant’s reduced pace of work when compared to his former drilling duties.

[47] The Applicant, while denying that he had received any formal counselling or warnings regarding his conduct, claimed to have been subjected to bullying throughout both periods of his employment. It was clear on the evidence that a complaint was made during the first period of employment by the Applicant against Mr Hellier and that it was subject to formal mediation. The Respondent claims that the issue was resolved and that no further issues emerged during the first period of engagement.

[48] It is significant, in my view, that the Applicant resigned his employment on apparently amicable terms in 2012 and then was re-engaged by the Respondent some four years later. The fact that the Applicant was prepared to return to the Respondent’s business in 2016 does not support the Applicant’s claims of an ongoing bullying environment, at least with respect to his first period of employment.

[49] As regards the second period of employment, both Mr Rushton and Mr Hellier were clear in their evidence that there were no instances of bullying directed towards the Applicant. That position is supported by a lack of any further formal complaint having been made by the Applicant or any other evidence adduced during proceedings.

[50] Having regard to the above, I am satisfied that while the Applicant made a bullying complaint against Mr Hellier during his first period of employment, it is more than likely that the issues of concern were resolved during formal mediation and that no further issues of concern arose between the two parties prior to the Applicant’s resignation. That finding is supported by the apparent amicable basis of the Applicant’s resignation in 2012 and both the Applicant and Respondent’s willingness to re-establish the employment relationship in 2016.

[51] As regards the second period of employment, there was no evidence on which I could be satisfied that further bullying of the Applicant occurred. As such, I am not persuaded that the Applicant was subjected to constant bullying throughout both periods of employment as contended by him.

[52] As to the Respondent’s concerns regarding the Applicant’s performance and productivity, I am satisfied that the Applicant’s productivity dropped off in early 2017. This finding is based on the evidence of Mr Rushton, Mr Hellier and Mr Jakupi, including evidence of the progressive accommodations that were made for the Applicant in terms of work reallocation. It seems implausible that such work reallocation would have been made in the absence of performance and/or productivity concerns.

[53] I am further satisfied, based on the consistent evidence from Mr Rushton and Mr Hellier, that their concerns were not confined to the impact of the Applicant’s hernia condition but were particularly directed to the time wasting behaviour that the Applicant was seen to be engaging in which was affecting other employees. In these circumstances, I am satisfied that the Applicant’s performance was under scrutiny and that Mr Rushton had regularly spoken to the Applicant regarding his leaving his workstation and distracting fellow employees from their work.

[54] Notwithstanding the concerns the Respondent may have held regarding the Applicant’s work performance, I am not satisfied that the Respondent effectively addressed those concerns by way of issuing a formal warning. Nor am I satisfied that clear advice was provided to the Applicant as to the consequences of a continued failure to comply with the Respondent’s reasonable requirements. It is significant that while Mr Rushton may have initiated a meeting with the Applicant in June 2017, no record was kept of the date of the meeting nor was a contemporaneous note of the meeting outcome produced. Importantly no independent witnesses to the meeting were called by either party.

[55] Nevertheless, I am satisfied that it is more than likely that the Applicant was being regularly spoken to by Mr Rushton regarding his work performance and that he (the Applicant) resented the attention he was receiving and that the events of 3 August 2018 were a culmination of that frustration on the part of the Applicant.

[56] As to the events prior to morning tea on the 3 August 2017, I am satisfied that Mr Rushton challenged the Applicant regarding his conversation with Hamy and directed them to both get back to work. I am also satisfied that the Applicant resented and reacted to the challenge from Mr Rushton, threw down a piece of pipe on his workbench and swore at Mr Rushton telling him variously to “fuck off” and “get fucked”. This provoked a further exchange between the two men culminating in Mr Rushton dismissing the Applicant on the spot. I am not persuaded by the evidence of the Applicant that Mr Rushton initiated the exchange by swearing at the Applicant.

Protection from Unfair Dismissal

[57] An order for reinstatement or compensation may only be issued where I am satisfied that the Applicant was protected from unfair dismissal at the time of the dismissal.

[58] Section 382 of the Act sets out the circumstances that must exist for the Applicant to be protected from unfair dismissal:

“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.

Note: High income threshold indexed to $142,000 from 1 July 2017.”

[59] There was no dispute that the Applicant has completed the minimum employment period, and is covered by a modern award. Consequently, I am satisfied the Applicant was protected from unfair dismissal.

[60] I will now consider if the dismissal of the Applicant by the Respondent was unfair within the meaning of the Act.

Was the dismissal unfair?

[61] A dismissal is unfair if I am satisfied, on the evidence before me, that all of the circumstances set out at s.385 of the Act existed. Section 385 provides the following:

“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.”

[62] In this case, there was no dispute and I am satisfied that the matter was confined to a determination of that element contained in s 385(b) of the Act, specifically, whether the dismissal of the Applicant was harsh, unjust or unreasonable.

[63] Section 387 of the Act contains criteria that the Commission must take into account in any determination of whether a dismissal is harsh, unjust or unreasonable:

“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.”

[64] The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd³⁵ by McHugh and Gummow JJ as follows:

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

[65] I am under a duty to consider each of these criteria in reaching my conclusion.³⁶

[66] I will now consider each of the criteria at s 387 of the Act separately.

Was there a valid reason? - s.387(a)

[67] A valid reason for the dismissal of the Applicant need not be the reason given to the Applicant at the time of the dismissal.³⁷ The reasons should be “…sound, defensible and well founded”³⁸ and should not be “…capricious, fanciful, spiteful or prejudiced.”³⁹

[68] Having been dismissed for misconduct, the Commission must first satisfy itself that, on the balance of probabilities that the alleged misconduct occurred.⁴⁰ In doing so, the Commission will take into account the need to be properly satisfied of the proofs of the conduct, without applying a standard of proof higher than the balance of probabilities.⁴¹

[69] The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the matter before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.⁴²

[70] In dismissing the Applicant on 3 August 2017 the Respondent submitted that the Applicant engaged in serious misconduct by:

(a) Swearing at the Production Manager, Mr Nigel Rushton, in an insulting manner in an exchange on 3 August 2018; and

(b) On multiple occasions, failing to comply with Mr Rushton’s lawful and reasonable directions to not leave his work station to talk to other employees.

[71] As I have already found, I am satisfied on the evidence that the Applicant reacted to being challenged by Mr Rushton on 3 August 2015 by throwing a pipe down onto his workbench and then swearing at Mr Rushton, variously telling him to “get fucked” and “fuck off”. I have also found that the Applicant responded in this manner out of frustration due to his perceived treatment by Mr Rushton regarding the Applicant’s work performance. While the Applicant may have perceived his treatment by Mr Rushton as bullying behaviour, I am not persuaded that Mr Rushton’s behaviour fell into that category.

[72] Irrespective of the Applicant’s perceived treatment by Mr Rushton regarding his work performance and the language difficulties the Applicant claimed to have experienced, there can be no justification for the manner of the Applicant’s response. It was both physical, in terms of the pipe being slammed onto the workbench, and profane and offensive, in relation to the language directed towards Mr Rushton. I am satisfied in the circumstances that the Applicant’s behaviour constituted misconduct and founded a valid reason for his dismissal.

[73] As regards the claimed failure of the Applicant to follow lawful and reasonable directions of the Respondent providing a basis for termination, I am not persuaded that the Applicant’s conduct was so serious and wilful as to found a basis for termination. It is telling that the details of the cited performance management meeting of June 2018 were not recorded and no formal warning was issued to the Applicant that made clear the potential consequences of continued unacceptable behaviour.

Notification of the valid reason – s.387(b)

[74] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made,⁴³ in explicit terms⁴⁴ and in plain and clear terms.⁴⁵ In Crozier v Palazzo Corporation Pty Ltd⁴⁶, the Full Bench of the then Australian Industrial Relations Commission dealing with similar provision of the Workplace Relations Act 1996 stated the following:

“[73] As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.”

[75] I am satisfied that following the exchange with Mr Rushton on 3 August 2017, the Applicant was told that he was dismissed and to leave the workplace immediately. The reasons for the dismissal may have been clear in Mr Rushton’s mind, that of the insulting language directed towards him by the Applicant. However, I am not satisfied that those reasons were communicated to the Applicant in plain and clear terms, either prior to the decision being made or in the wake of the decision being communicated to the Applicant. The failure of the Respondent to properly notify the Applicant of the reasons for the dismissal is unsurprising given the indecent haste with which Mr Rushton made and then communicated the decision to terminate the Applicant’s employment.

[76] I am not satisfied that the Applicant was notified of a valid reason for his dismissal before the decision was made to terminate his employment. This weighs against a finding that the dismissal was not unfair.

Opportunity to respond to any reason related to capacity or conduct - s.387(c)

[77] An employee protected from unfair dismissal must be provided with an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the person. This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality.⁴⁷

[78] It is clear that Mr Rushton reacted to the Applicant’s behaviour and quickly formed and communicated a decision to the Applicant that his employment was terminated with immediate effect. In the circumstances it is hard to envisage a process more lacking in procedural fairness. The haste with which the decision to terminate the Applicant’s employment was reached and communicated clearly denied the Applicant an opportunity to respond to the reasons relied on by the Respondent for his dismissal.

[79] In these circumstances, I am not satisfied that the Respondent provided the Applicant with an opportunity to respond to the reasons relied on for the termination of his employment. This weighs against a finding that the dismissal was not unfair.

Unreasonable refusal by the employer to allow a support person - s.387(d)

[80] While there was no evidence that the Applicant requested to be accompanied by a support person in discussions relating to his termination, this is hardly surprising given the manner of the Applicant’s termination of employment which was expeditious to say the least. Consideration of this criterion in the present circumstances is clearly moot given that no time was taken by the employer to give the Applicant an opportunity to respond to the alleged misconduct and then carefully weigh and consider the conduct and any mitigating factors before determining the disciplinary consequences. It is therefore a neutral consideration.

Warnings regarding unsatisfactory performance - s.387(e)

[81] The Applicant was not dismissed for performance shortcomings but for serious misconduct and so this factor is not relevant to my decision.

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

[82] The Respondent’s F3 - Employer Response Form indicates that at the time the Applicant was dismissed it employed 32 people. Mr Rushton gave evidence that the Respondent engaged a part-time HR advisor at the time of the dismissal of the Applicant. In the circumstances, it is regrettable that advice was not obtained from the HR advisor regarding a proper procedural process to be followed prior to any decision to terminate the Applicant being taken and communicated.

[83] In the circumstances of the Respondent having access to HR advice, I am not satisfied that the small size of the Respondent’s business excuses the clear procedural failures so evident in the Applicant’s termination. Consequently, I am satisfied in the circumstances that the size of the employer’s enterprise did not adversely impact on the procedures followed in effecting the dismissal. Consequently this is a neutral consideration.

Impact of the size of the Respondent on procedures followed - s.387(f)

[84] On Mr Rushton’s evidence, the Respondent engaged a part-time HR advisor. In the circumstances of the Respondent having access to such advice, I am not satisfied that the small size of the Respondent’s business excuses the clear procedural failures so evident in the Applicant’s termination.

[85] I am satisfied that the Respondent’s access to HR advice and their failure to utilise that resource weighs against a finding that the termination was not unfair.

Other relevant matters - s.387(h)

[86] The Applicant did not advance any other matters as being relevant to the Commission’s consideration of the application before it.

Conclusion as to whether dismissal was unfair

[87] Having considered each of the matters specified in s 387 of the Act, I have concluded that while the Respondent has established a valid reason for the dismissal there was an abject failure on its part to accord the Applicant any semblance of procedural fairness. Due to the haste in which the Respondent decided and then terminated the Applicant’s employment, it failed to notify the Applicant of the reason for his dismissal in plain and clear terms prior to the decision having been made and also failed to provide the Applicant with any opportunity to respond to the reasons for the dismissal. Furthermore, the size of the Respondent’s business cannot be used as an excuse for the procedural failures.

[88] I have carefully weighed the reasons for the Applicant’s dismissal along with the other s 387 criteria and am satisfied that the procedural failures were so significant as to render the dismissal unreasonable and unjust. I am consequently satisfied that the termination was unfair within the meaning of the Act.

Remedy

[89] In circumstances where I have found that the Applicant was protected from unfair dismissal at the time of being dismissed and he has been unfairly dismissed, s 390 of the Act prescribes that a remedy is available. Accordingly, I am required to determine whether to order the reinstatement of the Applicant or, in circumstances where reinstatement is inappropriate, an order for compensation if I am satisfied such an order is appropriate in all the circumstances.

[90] The primary remedy is reinstatement, however the Applicant has not sought reinstatement and both the Applicant and the Respondent submitted that reinstatement is inappropriate. In these circumstances, and having considered the evidence of the relations between the parties and the small size of the Respondent’s business, I am satisfied that it is not appropriate to order reinstatement (s 390(3)(a)).

[91] I must therefore consider whether it is appropriate in all the circumstances to make an order for payment of compensation (s 390(3)(b)).

[92] Section 392 of the Act sets out the circumstances that must be taken into consideration when determining an amount of compensation, the effect of any findings of misconduct on that compensation amount and the upper limit of compensation that may be ordered.

[93] I will now consider each of the criteria in s 392 of the Act.

Remuneration that would have been received: s.392(2)(c)

[94] The Applicant’s remuneration with the Respondent was $57,772.00 gross per annum plus superannuation.

[95] The Applicant was dismissed for misconduct on which I have made findings. The termination of the Applicant’s employment was attended by serious procedural defects. But for those procedural defects and the Applicant’s dismissal it is likely that the Applicant would have placed on a formal if not final warning. I also note that there were valid concerns regarding the Applicant’s general productivity and work performance on which he had been regularly spoken to over a period of some months.

[96] Given the above-referred performance and conduct issues, I am satisfied that it is unlikely that the Applicant would have continued in his employment with the Respondent beyond a period of three months.The amount the Applicant would have received for that three month period is $14,443.00.

Remuneration earned: s.392(2)(e)

[97] The Respondent’s evidence was that the Applicant received four weeks’ pay in lieu of notice on termination, being a gross amount of $4,444.00.

[98] The respondent’s evidence also revealed that the Applicant has received weekly workers’ compensation payments from the date of his termination in accordance with statutory requirements. For the period from 3 August 2017 until 28 October 2017, the Applicant received $1361.00 gross per week, while from 28 October 2017 until the date of the hearing he received $1146.00 gross per week. 48 I am satisfied that total gross workers’ compensation payments received by the Applicant from the date of his termination until the date of the making of an order is estimated as $51,858.00.

[99] Consequently, the total amount of remuneration received, including both pay in lieu of notice and workers’ compensation payments, between the date of termination and the making of an order is estimated as $56,302.

Income likely to be earned: s.392(2)(f)

[100] Based on the continuing workers compensation payments the Applicant is receiving, I am satisfied that the Applicant is likely to receive $2292.00 in workers compensation for the period between the making of an order and any actual compensation awarded.

Other matters: s.392(2)(g)

[101] I find it is not appropriate in the circumstances of this case that a contingency should be applied.

Viability: s.392(2)(a)

[102] I find an order for compensation if made would not affect the viability of the Respondent’s enterprise.

Length of service: section s.392(2)(b)

[103] I find that the Applicant’s period of service with the Respondent during his most recent period of employment was 16 months. I have not taken into account the earlier period of service given the time between the separate periods of employment. The short period of service weighs against a significant award of compensation.

Mitigating efforts: s.392(2)(d)

[104] In considering whether the Applicant has taken steps to mitigate the loss suffered as a result of the dismissal, I should take into account whether the Applicant has acted reasonably in the circumstances.

[105] The Applicant gave evidence that he has not applied for any positions since the termination of his employment. He attributed this inaction to his medical condition for which he has been receiving and continues to receive workers’ compensation payments. He also stated that as a consequence of surgery and ongoing rehabilitation for his condition he is still recovering and remains unable to work.

[106] In the circumstances of his medical condition, I am satisfied that the Applicant has not acted unreasonably and this factor is therefore a neutral consideration in the assessment of compensation.

Misconduct: s.392(3)

[107] I have carefully weighed the Applicant’s misconduct which has led to his termination and have decided accordingly to reduce the amount of any compensation awarded by 30 percent to reflect that misconduct.

Shock, Distress: s.392(4)

[108] I note that any amount of compensation calculated does not include a component for shock, humiliation or distress.

Compensation cap: s.392(5)

[109] The amount of compensation is considered below having regard to the cap.

Remedy Summary

[110] The Applicant has received income since his termination by way of workers’ compensation payments estimated as totalling $51,858.00 to which may be added the pay in lieu of notice he received on termination of $4,444.00. The total figure for estimated earnings received in the period since the Applicant’s termination of employment on 3 August 2018 and up to the date of hearing is that of $56,302.00 over a 43 week period.

[111] The estimated earnings of the Applicant over the six month period immediately following his termination is calculated as including the amount of pay in lieu of notice of $4,444.00 to which must be added the workers’ compensation payments estimated as totalling $32,376.00. This results in a total figure of estimated earnings for the six month period following termination of $36,820.00.

[112] As I have already found, I am not satisfied that the Applicant would have remained employed by the Respondent for more than three months beyond 3 August 2017 had his employment not been terminated. During such period he would have received remuneration of $14,443.00. In these circumstances, I am not satisfied that the Applicant has suffered any loss of earnings.

[113] Given the Applicant’s earnings since termination and my findings regarding how long the Applicant would have remained employed but for his termination, the other criteria under s 392 are not relevant in these circumstances. Having further considered the particular circumstances of the case, I do not believe that any discretionary adjustment is necessary or appropriate. For this reason I do not intend to make any order for compensation.

[114] The calculation of the Applicant’s estimated earnings from workers compensation payments in the period following his termination were based on weekly payment rates provided by the Respondent’s insurer to the Respondent. 49 Should the actual earnings be different to the estimated earnings liberty is granted to apply in the event of a dispute over the precise monetary value of the workers compensation payments.

Conclusion

[115]
I have found that the Applicant’s dismissal was unfair and that reinstatement was inappropriate. I have further found that compensation is not appropriate in the circumstances where the Applicant has not suffered a loss of earnings in the period since the termination of his employment. The matter is determined accordingly.

DEPUTY PRESIDENT

Appearances:

Mr L. Close on behalf of the Applicant.

Ms E. Dempster on behalf of the Respondent.

Hearing details:

2018

Melbourne

17 May

Printed by authority of the Commonwealth Government Printer

<PR607228>

 1   Exhibit A3, Employment Separation Certificate.

 2 Exhibit A2, Statement of Mr Artur Miribyan at paragraph [34].

 3 Ibid at paragraph [37].

 4   Ibid at paragraphs [11] – [13].

 5 Ibid at paragraph [14].

 6   Transcript at PN188.

 7   Ibid at paragraph [17] – [18].

 8   Ibid at paragraph [22] – [24].

 9   Transcript at PN197-198.

 10   Exhibit A3.

 11 Exhibit A2 at paragraph [33].

 12   Transcript at PN221-226.

 13   Exhibit R3, Worker’s Injury Claim Form.

 14   Transcript at PN281.

 15   Transcript at PN282, and PN286.

 16 Exhibit R1, Statement of Mr Nigel Rushton at paragraph [1].

 17   Ibid at paragraphs [5] – [9].

 18 Ibid at paragraph [15].

 19 Ibid at paragraph [16].

 20   Ibid at paragraphs [18] – [19].

 21 Ibid at paragraph [20].

 22 Ibid at paragraph [22].

 23 Ibid at paragraph [23].

 24   Transcript at PN343.

 25   Transcript at PN372.

 26   Transcript at PN356-359.

 27   Transcript at PN375.

 28 Exhibit R4, statement of Mr Kade Hellier at paragraph [1].

 29   Ibid at paragraph [3] – [5].

 30 Ibid at paragraph [6].

 31   Ibid at paragraphs [7] – [8].

 32 Ibid at paragraph [11].

 33 Exhibit R5, Statement of Mr Neil Jakupi at paragraph [1].

 34   Ibid at paragraphs [3] – [5].

35Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 at 465.

36 Sayer v Melsteel[2011] FWAFB 7498.

37 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-378.

38 Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371, 373.

39 Ibid.

40 Edwards v Giudice (1999) 94 FCR 561 [6]-[7].

41 Budd v Dampier Salt Ltd (2007) 166 IR 407, at [15]; with reference to Briginshaw v Briginshaw (1938) 60 CLR 336 and Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 171.

42 King v Freshmore (Vic) Pty Ltd [2000] AIRC 1019 [24].

43 Chubb Security Australia Pty Ltd v Thomas,Print S2679 at [41].

44 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.

45 Previsic v Australian Quarantine Inspection Services, Print Q3730.

46 (2000) 98 IR 137.

47 RMIT v Asher (2010) 194 IR 1, 14-15.

 48   Exhibit R2.

 49   Ibid.