Bennett Pedley v Nbpctrus Pty Ltd as trustee for NBPC Trust
[2024] FWC 3576
•23 DECEMBER 2024
| [2024] FWC 3576 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Bennett Pedley
v
NBPCTRUS Pty Ltd as trustee for NBPC Trust
(U2024/9321)
| COMMISSIONER SLOAN | SYDNEY, 23 DECEMBER 2024 |
Application for an unfair dismissal remedy
Bennett Pedley was employed as a factory hand at North Brisbane Powder Coating. His employment commenced on 22 November 2021.
On 2 August 2024, Mr Pedley was called to a meeting with Murray Stewart, a director of NBPC, and Richard Pratsch, another employee in the business. Mr Stewart told Mr Pedley that his employment was being terminated on the basis of redundancy. Mr Stewart handed Mr Pedley a letter dated the same day (“Termination Letter”), which was in these terms:
“Redundancy Notice – Business Restructuring
Chris [sic]
We advise that, decisions have been made to restructure and downsize the NBPC business and, as a consequence, a decision has been made to make your position redundant effective as of 2nd August 2024. We hereby give you 1 weeks’ notice as required under the Award that you have been made redundant and your employment is terminated. There are no other positions available in the business. Any entitlements balance will be paid out once our Accountants reconcile your employment & leave history.
We wish you well for your future.”
Mr Pedley left the meeting. He shouted “You are a pack of f***ing dogs. I’m out of here.” He did not return to NBPC.
Nobody at NBPC sought to contact Mr Pedley after he left, on 2 August 2024 or at any later time. Mr Stewart obtained advice from the business’s accountants that by leaving the premises and not performing his duties after receiving the termination letter, Mr Pedley had abandoned his employment. Consequently, on 5 August 2024 NBPC paid Mr Pedley his outstanding salary and leave entitlements. It made no payment in lieu of notice.
On 11 August 2024, Mr Pedley filed an unfair dismissal application with the Fair Work Commission.[1]
The questions I need to answer – and the answers
There was no dispute that Mr Pedley was a person protected from unfair dismissal.[2] To the extent that is necessary to do so, I find that he was.
The question is whether NBPC unfairly dismissed him. To find that to have been the case, I need to be satisfied of four things: Mr Pedley was dismissed; the dismissal was harsh, unjust or unreasonable; the dismissal was not consistent with the Small Business Fair Dismissal Code (“Code”); and the dismissal was not a case of genuine redundancy.[3]
NBPC did not dispute that Mr Pedley was dismissed. To the contrary, it raised two jurisdictional objections that are premised on a dismissal having occurred: first, that NBPC was a small business employer at the time of the dismissal and the dismissal was consistent with the Code; and second, the dismissal was a case of genuine redundancy.
Even so, NBPC’s material gives rise to a question of whether Mr Pedley abandoned his employment, even if that question was not squarely raised by NBPC. In fairness to NBPC, and for me to be satisfied that there was a dismissal, I consider it necessary to determine that question.
If Mr Pedley was not dismissed, or I uphold the objections directly raised by NBPC, the case necessarily falls away. I would only have to consider whether the dismissal was harsh, unjust or unreasonable were I to determine those matters in Mr Pedley’s favour.
So the questions I need to answer in this case are these:
A. Did NBPC dismiss Mr Pedley?
B. If so:
i.Was NBPC a small business employer at the time of the dismissal?
ii.Was the dismissal consistent with the Code?
iii.Was the dismissal a case of genuine redundancy?
C. If the answer to questions B(ii) and B(iii) is no, was the dismissal harsh, unjust or unreasonable?
D. If so, should I order that NBPC pay compensation to Mr Pedley and, if so, in what amount?
I have decided that:
A. Mr Pedley was dismissed.
B. NBPC was a small business employer at the time of the dismissal, but the dismissal was not consistent with the Code.
C. The dismissal was not a case of genuine redundancy.
D. The dismissal was harsh and unreasonable, but not unjust.
E. It is appropriate that I order NBPC to make a payment of compensation to Mr Pedley of $3,150 plus superannuation.
I set out below my reasons.
Mr Pedley was dismissed
A dismissal may occur in one of two ways. First, where a person’s employment with their employer is terminated on the employer’s initiative.[4] A termination will be “on the employer’s initiative” if it is brought about by an employer without the employee’s agreement. The question is whether an action on the part of the employer was the principal contributing factor which resulted, directly or consequentially, in the termination of the employment.[5]
Second, where the person has resigned from their employment, but was forced to do so because of conduct, or a course of conduct, engaged in by their employer.[6] As there was no suggestion that Mr Pedley resigned I will not explore this form of dismissal.
NBPC contended that Mr Pedley “abandoned” his employment. However, it did not submit that this meant that there was no dismissal. Rather, NBPC relied on the “abandonment” as disentitling Mr Pedley from payment for notice. This is seen in its response to the unfair dismissal application, in which it stated that Mr Pedley “was deemed to have abandoned his job and therefore not eligible for any pay in lieu of notice”.[7]
“Abandonment of employment” is an expression sometimes used to describe a situation where an employee ceases to attend work without proper excuse or explanation and in so doing shows an unwillingness or inability to substantially perform their obligations under their employment contract. The test is whether the employee’s conduct is such as to convey to a reasonable person in the employer’s situation a renunciation of the employment contract as a whole or the employee’s fundamental obligations under it.[8]
The key premise of NBPC’s case for “abandonment” is that at the meeting on 2 August 2024 Mr Stewart told Mr Pedley that he was expected to work out his notice period. Mr Stewart gave evidence to that effect for the first time at the hearing. Mr Pratsch stated that he recalled that Mr Murray “made it clear that Bennett was expected to work out his notice”.[9]
Mr Bennett disputed that evidence. He stated that he was told that his employment was terminated with immediate effect. He said that this is why he had left the premises immediately.
It is difficult to reconcile NBPC’s evidence with the terms of the Termination Letter. While that letter refers to NBPC giving Mr Pedley “1 weeks’ notice as required under the Award” (which was not in fact the required period of notice), it described the redundancy as being “effective as of 2nd August 2024”. It also used the present tense to state that Mr Pedley’s employment “is terminated”.
Mr Pratsch did not appear at the hearing. A document prepared by Mr Stewart in advance of the hearing stated that “NBPC expected Pedley to work out his notice period”,[10] but does not set out the basis of that expectation. It also stated that Mr Pedley was not told that he would be paid in lieu of notice, but that is not the same as being told he would have to work out the notice.
Further, at the hearing Mr Stewart stated, again for the first time, that he had told Mr Pedley that if he walked out, he would not receive a termination payment. I do not accept that evidence. It was denied by Mr Pedley and was not referred to in Mr Pratsch’s statement. It also lacks credibility in the context of NBPC’s case that Mr Pedley had been told that he was to work out his notice period and that the business was surprised when he abruptly left. That is, why would Mr Stewart have needed to address the possibility of Mr Pedley “walking out”?
On all of the evidence, I prefer Mr Pedley’s version of what happened at the meeting on 2 August 2024.
Mr Pedley is a young man. He had just been told that his position had been made redundant. As I will come to explain, he had no warning that he was to be dismissed. I do not necessarily condone the manner in which he departed NBPC, but it needs to be placed in context of what had just occurred. His conduct was not of itself enough to evidence renunciation of contract.
Further, in a situation where an employer asserts abandonment, it will normally be expected that it will have consulted, or attempted to consult, with the employee as part of the process of establishing the cause of the employee’s absence.[11] NBPC made no attempt to contact Mr Pedley after he left. If he had in fact been told he was required to work out his notice period, I would have expected NBPC to have tried to contact him to find out where he was. Instead, NBPC processed Mr Pedley’s final payment on the next working day.
I am not satisfied that Mr Pedley abandoned his employment. I find that NBPC dismissed Mr Pedley.
NBPC was a small business employer at the time of Mr Pedley’s dismissal
NBPC would have been a small business employer on 2 August 2024 if, at that time, it employed fewer than 15 employees. That number includes Mr Pedley, regular casual employees and employees of associated entities.[12]
Mr Stewart gave evidence that at the time Mr Pedley was dismissed, NBPC had six employees and that there were no associated entities. Mr Pedley did not challenge that evidence. In fact, at the hearing he largely conceded that NBPC was a small business employer.
I find that NBPC was a small business employer at the time of Mr Pedley’s dismissal.
The dismissal was not consistent with the Code
The consequence of that finding is that Mr Pedley’s dismissal cannot have been unfair if NBPC complied with the Code in relation to the dismissal.[13] But it did not.
The Code does not expressly contemplate situations in which employment is terminated on the ground of redundancy. However, it does require the employer to give the employee a reason why he or she is at risk of being dismissed. It also requires the employer to allow the employee to have a person to assist in discussions where dismissal is possible. The Code therefore anticipates that the employer will consult with and warn an employee that their job is in jeopardy before making any decision to dismiss.
That is not what happened in this case. NBPC gave evidence that the business had been losing money throughout 2024. It had informed its employees, “by being addressed as a group”, of the financial position of the business and that there was a “probability of reducing the number of employees”.[14] However, Mr Stewart conceded at the hearing that there were no one-on-one meetings with Mr Pedley regarding the potential redundancy of his position.
Further, Mr Pedley was employed under the Manufacturing and Associated Industries and Occupations Award 2020 (“Award”). Clause 41 of the Award is titled “Consultation about major workplace change”. It provides that if an employer makes a “definite decision to make major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees”, it has obligations to provide information to and have discussions with employees who may be affected by the change. The discussions must include the introduction of the changes, their likely effect on employees and measures to avoid or reduce the adverse consequences on employees. The employer must consider any matters raised by the employee in those discussions.
At the hearing and in response to a question from me, Mr Stewart conceded that it was “probably correct” that NBPC had not complied with its obligations under clause 41 of the Award in reaching the decision to make Mr Pedley’s position redundant. I find that was the case.
In short, Mr Pedley had not been warned that his position in particular might be made redundant. There was no discussion with him before the decision was made to terminate his employment. He was not given the opportunity to question why his position had been identified as redundant, offer his views about that or explore alternatives to dismissal. Instead, he was called to a meeting and presented with “a done deal”.
For these reasons, I find that the dismissal was not consistent with the Code. It follows that I dismiss NPBC’s jurisdictional objection to Mr Pedley’s unfair dismissal application that was based on that ground.
The dismissal was not a case of genuine redundancy
To find that there was a genuine redundancy in this case I would need to be satisfied of two things: that NBPC no longer required Mr Pedley’s job to be performed by anyone because of changes in the operational requirements of its enterprise; and that NBPC complied with the obligations in the Award to consult about the redundancy.[15]
For the reasons I have set out above, the second requirement is not met. It follows that the dismissal cannot be found to be a case of genuine redundancy. I dismiss the jurisdictional objection raised by NBPC on that ground.
Why I have found the dismissal to be unfair
I turn now to explain why I have found the dismissal to be unfair.
As I have stated, to find that Mr Pedley was unfairly dismissed I need to be satisfied that he was dismissed; the dismissal was harsh, unjust or unreasonable; the dismissal was not consistent with the Code; and the dismissal was not a case of genuine redundancy.[16]
And I am satisfied of those matters. I have found that Mr Pedley was dismissed, that the dismissal was not consistent with the Code and that it was not a case of genuine redundancy. For the reasons that follow, I find that the dismissal was harsh and unreasonable.
In determining whether the dismissal was harsh, unjust or unreasonable, I am required to have regard to certain criteria.[17] The extent to which I am required to consider those criteria depends on the extent to which they are relevant to the case.[18] Not all of them are relevant to this case.[19] I do not need to traverse those that are not. I will address the others in turn.
Whether there was a valid reason for the dismissal[20]
In order to be a valid reason, the reason for the dismissal should be sound, defensible or well founded. It should not be capricious, fanciful, spiteful or prejudiced.[21] However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it were the employer.[22]
Mr Pedley argued that he had been selected for redundancy due to having reported a safety incident to SafeWork NSW. He claimed that this amounted to adverse action.[23]
Both Mr Murray and Mr Pratsch denied being aware that Mr Pedley was the person who had made the report to SafeWork NSW. Mr Stewart stated that as a consequence it was not a factor in his decision to dismiss Mr Pedley.
It is not necessary for me to deal with the question of whether I could address a general protections claim in these proceedings. It is enough to say that Mr Pedley did not produce enough evidence to make out his contention.
Consistent with its jurisdictional objection, NBPC argued that Mr Pedley was dismissed on the basis of redundancy. It led evidence that the business was losing money in 2024 and that it was looking to cut costs by reducing its headcount. This was a matter known to the employees. NBPC produced some financial records, which showed that the business made a loss in excess of $97,000 in the financial year ending 30 June 2024. It incurred further losses of approximately $23,000 in July 2024. Mr Stewart stated that at the time of the hearing NBPC’s workforce has been reduced to two employees.
The poor financial state of the business was also reflected in some of the evidence led by Mr Pedley. It showed that NBPC had dismissed another employee on the basis of redundancy in May 2024.
However, Mr Pedley challenged the legitimacy of NBPC’s decision to make his position redundant by leading evidence of two people who had done paid work for NBPC after his dismissal. However, Mr Stewart stated that those individuals had done casual work on a trial basis, so as to assess their suitability for future employment if the need arose. That is consistent with the documents provided by Mr Pedley.
I am satisfied that NBPC no longer required Mr Pedley’s job to be performed by anyone because of changes in the operational requirements of its enterprise. I find this was a valid reason for the dismissal.
Whether Mr Pedley was notified of the reason for dismissal[24]
This criterion requires me to consider whether Mr Pedley was notified of the reason for his dismissal before NBPC made the decision to terminate.[25] Being “notified” requires NBPC to have explicitly put the reason to Mr Pedley in plain and clear terms.[26]
That simply did not happen. I need only refer to my earlier findings.
The degree to which the size of NBPC’s enterprise, or the absence of dedicated human resource management specialists or expertise at NBPC, would be likely to impact on the procedures followed in effecting the dismissal[27]
I have found that NBPC is a small business employer. There is no evidence that it has any internal human resources expertise. On all of the evidence, I can safely assume that it does not. It is a matter that I have taken into account.
Any other matters that I consider relevant[28]
A matter that I consider to be relevant is NBPC’s apparent ignorance or disregard of its obligations as an employer. I have already referred to NBPC’s failure to comply with clause 41 of the Award prior to effecting the dismissal. That was not its only error.
The Termination Letter referred to Mr Pedley receiving one week’s notice of termination “as required under the Award”. But Mr Pedley had been employed for a little over 27 months. He was entitled to 2 weeks’ notice under the Award.[29]
In this context, it is concerning that Mr Stewart stated that “Pedley’s employment agreement, as legally amended, required both parties to give the other 5 days’ notice of the employment ending”.[30] That Mr Stewart appears to be unaware of his employees’ minimum entitlements is reflective of the manner in which he dismissed Mr Pedley and in the action – or lack of action – taken by Mr Stewart after Mr Pedley left NBPC on 2 August 2024.
Conclusion – the dismissal was unfair
I find that Mr Pedley’s dismissal was unreasonable. This is the result of the lack of consultation with him prior to making and implementing the decision to dismiss.
I also find that the dismissal was harsh. This is the result of NBPC’s decision to withhold payment in lieu of notice. This is especially the case when it determined that Mr Pedley had abandoned his employment without making any effort to contact him to clarify his intentions, or NBPC’s expectations (that he work out his notice period).
Accordingly, I find that the dismissal was unfair.
Remedy –compensation
Mr Pedley was a person protected from unfair dismissal. He made an unfair dismissal application. I have found that the dismissal was unfair. It follows that I have the discretion to order Mr Pedley’s reinstatement, or to order that NBPC pay him compensation.[31]
Mr Pedley did not seek reinstatement. As a result, NBPC was not required to address the question, although I have no doubt it would oppose reinstatement. It is not a matter I need to linger over. I am satisfied that it would be inappropriate for me to order that NBPC reinstate Mr Pedley to his employment. This is the result of a combination of two things: the financial state of NBPC’s business, and my view that the relationship between Mr Pedley and Mr Stewart is likely damaged beyond repair.
However, I am satisfied that it is appropriate for me to order that NBPC make a payment of compensation to Mr Pedley. This is not the automatic consequence of my decision not to order reinstatement. It is a decision that I have made in the exercise of my discretion as to whether to order a remedy.[32]
The amount Mr Pedley claimed as compensation was not exorbitant. He sought payment of seven weeks’ wages, comprising the two weeks’ notice he did not receive and five weeks for which he said he was out of work following the dismissal.
In deciding the amount of compensation to be paid to Mr Pedley, I am required to have regard to all the circumstances of the case, but seven factors in particular.[33] The Commission has developed a methodology for assessing compensation, which provides guidance as to the order in which those and other factors might be applied.[34] I have adopted that methodology.
Remuneration that Mr Pedley would have received, or would have been likely to receive, if he had not been dismissed[35]
My consideration of this factor requires me to make an assessment as to how long Mr Pedley would have remained employed by NBPC but for the termination of his employment.[36]
I have found that NBPC had a valid reason for terminating Mr Pedley’s employment. NBPC should have consulted with him about the possibility of his position becoming redundant and explored alternatives to dismissal, including redeployment or other acceptable employment. However, such consultation is unlikely to have affected the outcome. NBPC is a small business. There is no evidence that there were any alternatives to dismissal. It follows that Mr Pedley would only have remained in employment for as long as it would have taken for NBPC to have engaged in consultation with him in accordance with clause 41 of the Award.
In my view, in the context of the NBPC business, a proper consultation process would have required no more than one week to complete. I have proceeded on the basis that the process would have commenced on 2 August 2024, being the first date on which NBPC informed Mr Pedley that it had decided that his role was no longer required.
As a result, Mr Pedley would have worked to 9 August 2024 and received one week’s extra wages. As Mr Pedley worked a 37.5 hour week and was paid $28.00 per hour, this comes to $1,050.
Remuneration earned[37]and income reasonably likely to be earned[38]
Mr Pedley stated that he was out of work for 5 weeks following his dismissal. As I have found the anticipated period of employment would have ended on 9 August 2024, the income that Mr Pedley is likely to earn is not a relevant factor.
Other matters[39]
Mr Pedley should receive compensation for the notice of termination he should have received. This will require NBPC to pay a further two weeks wages, above the week for which I have already provided. The total will be $3,150.
There is no basis for any deduction for contingencies, since I am dealing with past and therefore known circumstances.[40]
In relation to taxation, I have determined compensation as a gross amount. It will be for Mr Pedley to pay any amount of taxation required by law.
The effect of the order on the viability of NBPC’s enterprise[41]
NBPC did not contend that its financial position is such that an order of compensation might impact its viability. Even allowing for the circumstances that precipitated Mr Pedley’s dismissal, I do not consider that the order I propose to make will adversely affect the viability of NBPC’s business.
Mr Pedley’s length of service with NBPC[42]
Mr Pedley was employed by NBPC for approximately 27 months. In the circumstances of this case, I do not consider that this period justifies any increase or reduction to the amount of compensation otherwise payable.
Mr Pedley’s efforts to mitigate his loss[43]
Mr Pedley stated that he had sought work after his dismissal, but it took five weeks to find a position. The evidence in this regard was very limited. That said, NBPC did not suggest that Mr Pedley failed to make efforts to mitigate his loss. I accept that Mr Pedley made some attempt to mitigate his loss. I will make no adjustment to the amount of compensation to be paid on that score.
No component for shock, distress, humiliation or other analogous hurt[44]
The compensation amount that I have assessed contains no component for any shock, distress, humiliation or other analogous hurt suffered by Mr Pedley as a result of the manner of his dismissal.
Compensation cap[45]
The amount of compensation I propose to order is below the compensation cap.
Instalments[46]
NBPC made no application to pay any compensation by instalments. In any event, the amount of compensation to be paid does not justify it being paid in instalments.
Conclusion regarding compensation
I am required to ensure that the level of compensation is appropriate having regard to all the circumstances of the case.[47] For the reasons set out above, I am satisfied that a remedy of compensation in the sum of $3,150.00 in favour of Mr Pedley, along with a payment of superannuation, is appropriate in all the circumstances of this case.
Conclusion
In light of the above, I will make an order that NBPC pay Mr Pedley $3,150, less taxation as required by law, plus make an 11.5% superannuation contribution on that amount into his nominated superannuation account. The order will require payment to be made by 20 January 2025.
The order is published contemporaneously with this decision in PR782775.
COMMISSIONER
Appearances:
Bennet Pedley, the Applicant
Murray Stewart, the Respondent
Hearing details:
2024
Sydney (by video)
27 November
[1] The application was brought under Part 3-2 of the of the Fair Work Act 2009 (“Act”). Unless otherwise stated, all references to legislative provisions in this decision are to provisions of the Act
[2] Section 382
[3] Section 385
[4] Section 386(1)(a)
[5]Saeid Khayam v Navitas English Pty Ltd[2017] FWCFB 5162 at [75], citing Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200
[6] Section 386(1)(b). This provision is intended to reflect the common law concept of constructive dismissal: Explanatory Memorandum for the Fair Work Bill at par 1530; City of Sydney RSL & Community Club Limited v Roxana Balgowan[2018] FWCFB 5 at [9] and [13]
[7] Form F3 – Employer response to unfair dismissal application
[8] See Abandonment of Employment [2018] FWCFB 139 at [21]-[22]
[9] Statement of Richard Pratsch, 14 October 2024
[10] Respondent’s response to documents lodged by Pedley 4th October 2024, 14 October 2024, p 2
[11] Orry Thompson v Zadlea Pty Ltd t/as Atlas Steel[2019] FWC 1687 at [49], relying on Abandonment of Employment [2018] FWCFB 139 at [21]-[24]. See also [32] of Abandonment of Employment, in which the Full Bench offered tentative support for a proposed award term that “would primarily be concerned with the steps the employer might take to attempt to consult with the employee about the reasons for the absence before taking action against the employee”.
[12] Section 23
[13] Section 385(c) read with s 388(2)
[14] Respondent’s response to documents lodged by Pedley 4th October 2024, 14 October 2024, p 1
[15] Section 389(1)
[16] Section 385
[17] Section 387
[18] Sayer v Melsteel Pty Ltd[2011] FWAFB 7498 at [14]
[19] Those referred to in s 387(c), (d) and (e)
[20] Section 387(a)
[21] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373
[22] Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at 685
[23] The effect of Mr Pedley’s submission is that NBPC breached the general protections provisions in Part 3-1 of the Act
[24] Section 387(b)
[25] Sydney Trains v Trevor Cahill[2021] FWCFB 1137 at [60]
[26] Bartlett v Ingleburn Bus Services Pty Ltd[2020] FWCFB 6429 at [19] and Sydney Trains v Trevor Cahill[2021] FWCFB 1137at [60]
[27] Section 387(f) and (g)
[28] Section 387(h)
[29] Clause 45.1(b). The same entitlement arises under s 117(3)(a)
[30] Respondent’s response to documents lodged by Pedley 4th October 2024, 14 October 2024, p 1
[31] Section 390(1) and (2)
[32] Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter[2014] FWCFB 7198 at [9]
[33] Section 392(2)
[34] Bowden v Ottrey Homes Cobram and District Retirement Villages Inc. T/A Ottrey Lodge (2013) 229 IR 6; [2023] FWCFB 431, in which the Full Bench took into account authorities under corresponding provisions of the Workplace Relations Act 1996 in Sprigg v Paul’s Licensed Festival Supermarket (1998) IR 21 11and Ellawala v Australian Postal Corporation Print S5109 (AIRCFB Ross VP, Williams SDP, Gay C, 17 April 2000)
[35] Section 392(2)(c)
[36] Ellawala v Australian Postal Corporation Print S5109 (AIRCFB Ross VP, Williams SDP, Gay C, 17 April 2000) at [34]
[37] Section 392(2)(e)
[38] Section 392(2)(f)
[39] Section 392(2)(g)
[40] Lucinda Vennix v Mayfield Childcare Limited[2020] FWCFB 550 at [32]
[41] Section 392(2)(a)
[42] Section 392(2)(b)
[43] Section 392(2)(d)
[44] Section 392(4)
[45] Section 392(5)
[46] Section 393
[47] Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries[2016] FWCFB 7206 at [17]
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