Brendan Loftus v Absolute QSEC Pty Ltd
[2025] FWC 278
•3 FEBRUARY 2025
| [2025] FWC 278 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Brendan Loftus
v
Absolute QSEC Pty Ltd
(U2024/11825)
| COMMISSIONER SLOAN | SYDNEY, 3 FEBRUARY 2025 |
Application for an unfair dismissal remedy
Absolute QSEC Pty Limited employed Brendan Loftus as a Security Officer. His employment commenced on 11 September 2023. He was employed on a casual basis.
Mr Loftus was accustomed to receiving his roster for the coming week each Thursday. On Thursday, 19 September 2024 he sent a text message to Bruce Birks, the “designated operations manager” of Absolute QSEC, asking whether the roster for the following week was out. Mr Birks responded that the roster was not out and asked whether Mr Loftus “needed time off”.
Mr Loftus then called Mr Birks. In the conversation which followed, Mr Birks stated that “Sydney”, which Mr Loftus took to be a reference to “head office”, had told Mr Birks not to roster Mr Loftus because he was “a directing manager of another company”. Mr Birks said he would speak to the “higher ups” who issued that order and get back to Mr Loftus.
Mr Loftus did not hear further from Mr Birks.
Later on 19 September 2024, Mr Loftus sent an email to Mr Birks asking for clarification of the situation. He received no response.
On 3 October 2024, Mr Loftus filed an unfair dismissal application with the Fair Work Commission.[1]
Procedural history
On 19 November 2024, Commissioner Durham made directions in these proceedings. In short, they required Mr Loftus to file and serve his evidence and submissions by 3 December 2024; for Absolute QSEC to file and serve its evidence and submissions by 17 December 2024; and for Mr Loftus to file and serve any material in reply by 24 December 2024.
The matter was reallocated to me. I determined to list the matter for mention on 28 November 2024 to make arrangements for the hearing. I arranged for an email attaching a notice of listing to be sent to the parties, at the addresses that had been provided to the Commission, on 20 November 2024.
On 22 November 2024, my Chambers received an email from the “Human Resources Department” of “QSEC Security”. The email stated: “I understand that your chambers is seeking Absolute QSEC Pty Ltd contact details.” The email proceeded to give the name “Jack Burges” and an email address for him.
On the same day I arranged for an email to be sent to Mr Burges at the address that had been provided. The email informed Mr Burges of the mention on 28 November 2024. Attached to the email was a copy of the notice of listing for that mention and a copy of the directions made by Commissioner Durham on 19 November 2024.
The Commission did not receive a response to that email.
I conducted the mention on 28 November 2024. Absolute QSEC did not appear. I made the following directions:
“1. The directions made by Commissioner Durham on 19 November 2024 (‘Earlier Directions’) are confirmed.
2. If the Respondent does not file its evidence and submissions in accordance with the Earlier Directions (that is, by 4.00pm on 17 December 2024), and it has not before that time sought and obtained a variation to the Earlier Directions, the Commission will proceed to determine the matter ‘on the papers’.
3. If the Respondent files its material in compliance with the Earlier Directions, the matter will be listed for a directions hearing for the purposes of confirming the arrangements and date for the hearing of the matter.”
My Chambers sent a copy of the directions to the parties, including Mr Burges, by way of email on the same day.
Mr Loftus filed his material by way of email on 3 December 2024. However, the course of preparing this decision I observed that Mr Loftus’s email was not copied to Mr Burges, but to Mr Birks.
To ensure that Absolute QSEC had a proper opportunity to put on its case, I arranged for an email to be sent to Mr Burges on 30 January 2025. The email requested Mr Burges to inform my Chambers by 4.00pm on 31 January 2025 whether Absolute QSEC intended to file and serve any evidence and submissions in the proceedings. The email stated that if no response was received by that time, I would proceed to determine the matter on the information available. Subject to confirming its intention to do so, the email provided the company with a date by which it was to file and serve its material.
The Commission received no response to that email.
In short, the Commission has received no evidence or submissions from Absolute QSEC. The Commission has made considerable efforts to ensure that these proceedings were brought to the attention of Absolute QSEC. There has been a total failure by the company to engage with these proceedings. I am satisfied that it was afforded a fair and reasonable opportunity to present its case.
As Absolute QSEC has not contested any of the facts in Mr Loftus’s material, the matter does not involve “facts the existence of which is in dispute”. [2] As a consequence, I consider that there is no requirement that I conduct a conference or hold a hearing. I will determine the matter on the papers.
The questions I need to answer
Mr Loftus was employed on a casual basis. However, he stated that he worked 36 to 48 hours per week. That is consistent with the evidence as to his rates of pay and total earnings in the 12 months prior to 19 September 2024. That evidence also suggests that Mr Loftus must have been employed on a regular and systematic basis. I am satisfied that he was a regular casual employee.[3] I am also satisfied on all of the evidence that Mr Loftus had a reasonable expectation of continuing employment by Absolute QSEC on the same basis. It follows that he had completed the minimum employment period with Absolute QSEC.[4] His annual rate of earnings was less than the high income threshold. I find that Mr Loftus was, therefore, a person protected from unfair dismissal.[5]
The question is whether Absolute QSEC unfairly dismissed him. To find that to have been the case, I need to be satisfied of four things: Mr Loftus 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.[6]
On the information available to me, I am satisfied that Absolute QSEC dismissed Mr Loftus on 19 September 2024 by informing him that he was no longer to be rostered to work.[7] There is nothing before me to suggest that Absolute QSEC was a small business employer[8] at the time of the dismissal. The Code is therefore of no relevance. There is equally no suggestion that the dismissal was a case of genuine redundancy.
So, the questions I need to answer are:
A. Was the dismissal harsh, unjust or unreasonable?
B. If so, should I order a remedy for unfair dismissal?
I have decided that the answer to the first question is yes. However, I have determined that Mr Loftus has not demonstrated that it is appropriate that I order a remedy. I set out my reasons below.
Why I have found the dismissal to be unfair
In determining whether the dismissal was harsh, unjust or unreasonable, I am required to have regard to certain criteria.[9] The extent to which I am required to consider those criteria depends on the extent to which they are relevant to the case.[10] It is clear that some of the criteria are not relevant in this case.[11] The relevance of others is depends on whether Mr Loftus’s alleged status as “a directing manager of another company” is to be seen as related to his conduct.[12] For the sake of completeness, I will assume that it is.
Whether there was a valid reason for the dismissal[13]
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.[14]
There is no evidence that Mr Loftus is “a directing manager of another company”. Even were that to be established, Absolute QSEC has not demonstrated why it would warrant the termination of Mr Loftus’s employment. On the evidence, I find that there was no valid reason for the dismissal.
Whether Mr Loftus was notified of the reason for dismissal and given an opportunity to respond[15]
This criterion requires me to consider whether Mr Loftus was notified of the reason for his dismissal before Absolute QSEC made the decision to terminate.[16] Being “notified” requires Absolute QSEC to have explicitly put the reason to Mr Loftus in plain and clear terms.[17] The requirement that Mr Loftus be given an opportunity to respond requires Absolute QSEC to have given him a real opportunity to respond to the reason for dismissal.[18]
It is clear that none of those things happened. On 19 September 2024 Mr Birks told Mr Loftus that he was not going to receive further shifts due to his alleged directorship of another company. Mr Loftus was not notified of that reason prior to the dismissal being effected. He was consequently not provided with an opportunity to respond to that reason or to show cause as to why his employment ought not be terminated. The reason given to him was not, in any event, a valid one.
The degree to which the size of Absolute QSEC’s enterprise, or the absence of dedicated human resource management specialists or expertise at Absolute QSEC, would be likely to impact on the procedures followed in effecting the dismissal[19]
There is nothing to suggest that the procedure Absolute QSEC followed to effect the dismissal was in any way impacted by the size of its enterprise or its lack of dedicated human resource management specialists or expertise.
Any other matters that I consider relevant[20]
I have had regard to the apparent failure by Mr Birks to engage with Mr Loftus after their telephone conversation on 19 September 2024.
Conclusion – the dismissal was unfair
Based on the matters set out above, the inescapable conclusion is that the dismissal was substantively and procedurally deficient. It was consequently harsh, unjust and unreasonable. Accordingly, I find that the dismissal was unfair.
Why I have determined not to order a remedy
Mr Loftus 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 Loftus’s reinstatement, or to order that Absolute QSEC pay him compensation.[21]
Mr Loftus did not seek reinstatement. In all of the circumstances, I am satisfied that an order for reinstatement would be inappropriate.
Mr Loftus sought compensation comprising “[his] lost income, back pay of [his] super + interest that has not been paid in full since April 29th and back pay of monies owed between the months of July & August due to the yearly wage increase not being passed on”. He referred to his income and mental health having been “impacted severely”, leading him to seek “compensation for lost [he] would’ve earned for the duration of this process and super that is owed from April 24”.
The Commission cannot make an order for back payment of Mr Loftus’s wages or superannuation. Any order for compensation cannot contain a component for any shock, distress, humiliation or other analogous hurt suffered by Mr Loftus as a result of the manner of his dismissal.[22]
Mr Loftus has not sought other employment since his dismissal as he is “currently on workers compensation”. This gives rise to a question as to what, if any, loss Mr Loftus has suffered as a result of the dismissal. He has provided no evidence of that.
In the circumstances, I am not persuaded that Mr Loftus has provided me with a proper basis on which I could make an order that Absolute QSEC make a payment of compensation to him.
Conclusion
I have found that Absolute QSEC dismissed Mr Loftus, and that his dismissal was unfair. However, I have determined that it is not appropriate to exercise my discretion to order a remedy to Mr Loftus in respect of that unfairness.
These proceedings are concluded.
COMMISSIONER
[1] The application was brought under Part 3-2 of the of the Fair Work Act 2009. Unless otherwise stated, all references to legislative provisions in this decision are to provisions of that Act.
[2] Section 397
[3] As defined in s 12
[4] Section 383
[5] Section 382
[6] Section 385
[7] Section 386(1)(a)
[8] Within the meaning of s 23
[9] Section 387(d) and (e)
[10] Sayer v Melsteel Pty Ltd[2011] FWAFB 7498 at [14]
[11] Those referred to in s 387(d) and (e)
[12] Section 387(a)-(c)
[13] Section 387(a)
[14] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373
[15] Section 387(b) and (c)
[16] Sydney Trains v Trevor Cahill[2021] FWCFB 1137 at [60]
[17] Bartlett v Ingleburn Bus Services Pty Ltd[2020] FWCFB 6429 at [19] and Sydney Trains v Trevor Cahill[2021] FWCFB 1137at [60]
[18] Gibson v Bosmac Pty Ltd (1995) 60 IR 1 at 7; Mark Bartlett v Ingleburn Bus Services Pty Ltd T/A Interline Bus Services[2020] FWCFB 6429 at [19(3)]
[19] Section 387(f) and (g)
[20] Section 387(h)
[21] Section 390(1) and (2)
[22] Section 392(4)
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