Brett Wingate v Causeway Holdings Pty Ltd T/A Western Forklift Services

[2017] FWC 4839

[2017] FWC 4839

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Brett Wingate
v
Causeway Holdings Pty Ltd T/A Western Forklift Services
(U2017/5028)

DEPUTY PRESIDENT BEAUMONT PERTH, 13 OCTOBER 2017

Application for an unfair dismissal remedy – small business employer – whether dismissal consistent with the small business fair dismissal code – code not met – no valid reason for dismissal found - other relevant matters.

[1] On 11 May 2017 Mr Brett Wingate (the Applicant) made an application to the Fair Work Commission (the Commission) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy in respect of his dismissal (the Application).

[2] Causeway Holdings Pty Ltd T/A Western Forklift Services (the Respondent) employed the Applicant as a Heavy Duty Mechanic from 16 December 2009.

[3] The Respondent lodged a jurisdictional objection to the Application on the basis it was lodged outside of the time prescribed. On 17 July 2017, Platt C found that the Application had been made within time and that the date of dismissal was 25 April 2017.

Legal representation

[4] The Applicant sought permission to be legally represented relying upon s.596(2)(a), (b) and (c) of the Act. The Respondent objected.

[5] Counsel for the Applicant submitted that legal representation would assist the Commission to deal with the matter more efficiently taking into account the complexity of the matter, the questionable evidence provided by the Respondent and a complex factual matrix. The Respondent opposed representation on the basis that the Applicant was a mature adult who understood the procedure and had foresight to employ legal representation with a view to maximising the compensation payable if he won the case.

[6] Without making findings on the material submitted by the Applicant and the Respondent on the substantive matter, it appeared that the matter would likely involve the consideration of several jurisdictional issues which involve complex areas of law. Further, there would likely be a reliance on both factual scenarios and a wider understanding of several defined terms within the Act.

[7] I appreciated granting permission for the Applicant to be represented may give rise to concerns of fairness, as identified by the Respondent. However, Counsel for the Applicant has a duty to the Commission. 1

[8] I granted permission for the Applicant to be represented on the basis that s.596(2)(a) and s.596(2)(b) of the Act were satisfied. I accepted that the Applicant could not represent himself effectively and that the matter involved some complexity. I was satisfied that permitting representation should allow the Applicant to provide appropriate argument and assistance to the Commission in the hearing and determination of the jurisdictional issues enabling the matter to be dealt with more efficiently.

Evidence

[9] The Applicant gave sworn evidence and called no other witnesses. The Respondent relied on the evidence of:

• Mr James Norman Eaves, owner of the Respondent business (Mr Eaves); and



• Mr Mark Proudlove, Workshop Manager of the Respondent business (Mr Proudlove).

Background

[10] The Applicant was initially employed in a full-time capacity inspecting trailers for faults or defects. He was provided with a vehicle and a mobile phone on commencement.

[11] It was accepted by the parties that the Manufacturing and Associated Industries Occupation Award 2010 (the Award) covered the Applicant.

[12] Mr Eaves gave evidence that the Applicant worked three days at a client’s site and the remaining two days were worked in the workshop of the Respondent business or in the field. However, with time the Applicant worked only three days at the client’s site.

[13] According to Mr Eaves and Mr Proudlove the Applicant failed a drug test on 11 August 2015 which precluded the Applicant from working on the client’s site for a period of approximately 8 weeks. This was disputed by the Applicant. However, when asked if the Respondent had provided a loan to him during the 8 week absence due to his financial difficulties he replied ‘one’ 2.

[14] Mr Eaves gave evidence that on 9 November 2015 there was a mutual agreement between him and the Applicant that the Applicant would become a casual employee.

[15] Mr Eaves’ evidence was that he changed the Applicant’s employment to incentivise the Applicant to work four days a week rather than three. In addition, the Applicant was to be paid an additional hours’ pay if he inspected 24 trailers. The Applicant admitted that he understood that the additional hours’ pay was to be provided if 24 trailers were inspected.

[16] While there was an increase in the days of work and consequently hours there appeared to be no other changes made to the employment arrangements.

[17] The Applicant continued to undertake the same work, had an understanding that four days were required, there was no requirement to check for the availability of work each week and Mr Eaves’ evidence was such that there appeared to be no real alternative for the Applicant but to work four days a week.

[18] New terms and conditions of employment were issued to the Applicant, which the Applicant signed as did Mr Eaves on 9 November 2015 (New Employment Contract) 3. The New Employment Contract provided:

 Hours of Work

Casual employment only. Thirty two (32) hours per week to be worked between Monday and Thursday from 8:00am to 4:00pm.

Termination of Employment by Employer or Employee

No notice of termination is required from either side.

[19] There was no reference to casual loading in the New Employment Contract. It was stated that there were no entitlements to annual leave, sick leave or long service leave.

[20] The Applicant gave evidence that he thought there was no alternative but to accept the change as he thought that was the only way he could keep his job.

[21] Mr Eaves tendered into evidence text messages between the Applicant and himself. 4 During the period of 10 March 2016 to 20 March 2017 there were approximately 16 occasions where the Applicant informed the Respondent by text message that he would not be ‘in today’ and on 13 of those occasions the Applicant would inform the Respondent of the days he would work which in the mainstay appeared to be Tuesday through to Friday.

[22] Mr Proudlove provided evidence that after becoming a casual employee the Applicant worked four days a week from Monday to Thursday although at times the Applicant would work Monday, Tuesday, Thursday and Friday.

[23] Mr Eaves said that the Applicant had excessive absenteeism which culminated in or around 52-53 days being taken off work during the period of 10 March 2016 to 20 March 2017. To support this statement Mr Eaves again referred to Exhibit R2 – Attachment A. Of the text messages provided, approximately 29 informed the Respondent of the Applicant’s absence and reasons provided were either the Applicant’s poor health or that of his partner.

[24] By October 2016 the Applicant’s absenteeism proved problematic. Consequently, a written warning was issued dated 18 October 2016 that referred to the excessive amount of time taken off in a casual manner and the impact that had on the business. The warning set out ‘If you continue along this line we shall be forced to make alternative permanent arrangements’.

[25] In March 2017, the Respondent secured additional work from the client at which the Applicant was based. From 8 March 2017, the Respondent instructed the Applicant to work five days a week.

[26] When asked whether the Applicant could choose to work, or not to work, four days or five days a week as was the case from 8 March 2017, the Respondent was unable to provide a cogent answer. Evidence from the Applicant, Mr Proudlove and Mr Eaves was such that it appeared that the Applicant was required to work all four days and then from 8 March 2017 all five days.

[27] Neither party provided evidence or submission on whether clause 14.4 of the Award had been complied with.

[28] Mr Proudlove said that not long after the Applicant started working five days a week there was an instant decline in the number of units (trailers) inspected per day. Both Mr Eaves and Mr Proudlove gave evidence that the Applicant was required to inspect 24 trailers a day. Both acknowledged that the Applicant had no control over the availability of the trailers to be inspected but noted that neither Mr Proudlove nor other service persons had struggled to inspect 24 trailers on the client’s site.

[29] Mr Eaves said that Applicant was reluctant to work the five days and reacted by only inspecting 21 trailers instead of the required 24.

[30] Tendered into evidence were Trailer Inspections for the period 22 February 2017 to 7 April 2017 (Exhibit R3). Further Trailer Inspections were tendered via Exhibit R2 Attachment D, which covered the dates 8 –10 March 2017, 13 – 17 March 2017.

[31] Before 8 March 2017 the Trailer Inspections showed the Applicant had inspected 21 trailers (21 February 2017), 18 trailers (23 February 2017), 24 trailers (24 February 2017) 24 trailers (27 February 2017), 24 trailers (28 February 2017), 24 trailers (3 March 2017), 23 trailers (7 March 2017). On 8 March 2017 the Applicant inspected 24 trailers and thereafter it dropped predominately to 21 trailers. From a review of the Trailer Inspections the hours of work appeared to be 6.30am to 2.00pm. Although on the occasional day (Friday) the Applicant had signed the finish time as 12.00pm.

[32] In March 2017, the text messages showed the Applicant had notified the Respondent of three absences due to poor health. In January 2017, before the change to a five day week, the Applicant notified the Respondent on two occasions that he would not be in on that day (Monday) but would work Tuesday through to Friday.

[33] It is not disputed between the parties that on 7 April 2017 the Applicant contacted Mr Eaves via phone and requested time off. The Applicant says that he informed Mr Eaves he needed the time off on 19 April 2017 because of scheduled day surgery. Mr Eaves said he then requested that the Applicant return the work vehicle to the workshop and he informed the Applicant that he was putting someone else on site as of Monday.

[34] The Applicant returned the work vehicle as requested on 7 April 2017 and gave evidence that there had been a discussion in which Mr Eaves informed the Applicant that he had a new guy starting on 10 April 2017 to do the Applicant’s job. Mr Eaves then informed the Applicant he should empty his tools from the work vehicle, and the Applicant was not needed to come into work but would be paid up until 25 April 2017. Mr Eaves confirmed he would contact the Applicant if any suitable work arose in the future.

[35] On 8 April 2017, the Applicant returned to the premises of the Respondent business and met with Mr Eaves. At that time the Applicant transferred the remainder of his personal items from the company vehicle to his own vehicle. Mr Eaves says that at no time did he inform the Applicant that he was terminated, dismissed or sacked.

[36] The Applicant says on 8 April 2017 he asked Mr Eaves ‘have I been sacked’ and he said ‘no’ 5. The Applicant says that Mr Eaves informed him that the business would pay him for Monday and Tuesday to finish the pay week and thereafter he would receive approximately $999.00 for the next pay.

[37] The Applicant says he asked Mr Eaves what would happen after that, to which Mr Eaves replied to him ‘you just stay home’ 6. The Applicant said he further asked Mr Eaves if he was being stood down which Mr Eaves said he was not. The Applicant gave evidence that ‘personally I couldn’t figure out where I stood’7.

[38] Mr Eaves gave evidence that he paid the Applicant in full for a week although he had only done 20 hours work. The other payments were goodwill payments to make sure the Applicant had some money.

[39] The Applicant contacted Mr Eaves on 27 April 2017 and asked about the work situation. Mr Eaves responded that the new guy was doing a good job replacing the Applicant and there was no work. The Applicant said that he asked for a Separation Certificate to enable him to access Centrelink benefits. Mr Eaves said that the Applicant communicated he wanted to sign up for the ‘dole’ 8.

[40] Mr Eaves expressed that he had never heard of a Separation Certificate, but his secretary had and she completed the form.

[41] In his oral testimony Mr Eaves had said that he did not dismiss the Applicant but had stood him down. Mr Eaves continued that if the Applicant had made overtures that he wanted his job back, he would work five days a week and do what the Respondent asked, he could have had his job back.

[42] At the time of the Applicant’s dismissal the Respondent employed five full-time employees, two part-time employees and the Applicant.

Unfair Dismissal

[43] Section 394(1) of the Act provides that a person who has been dismissed may apply to the Commission for an order under Division 4 of Part 3-2 of the Act granting a remedy for unfair dismissal.

[44] An order for reinstatement or compensation may only be issued where the Commission is satisfied the applicant was protected from unfair dismissal at the time of the dismissal.

[45] A dismissal is unfair if the Commission is satisfied, on the evidence before it, that all of the circumstances set out at s.385 of the Act existed:

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.

[46] The meaning of dismissed is set out in s.386 of the Act. A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

[47] A Full Bench of the Commission considered s.386 of the Act in Barkla v G4S Custodial Services Pty Ltd 9:

 [23] It is necessary in the first instance to consider the communications of the employer to the employee to determine whether any of these communications constitutes an express termination...

[24] It is then necessary to consider whether any action of the employer amounted to termination of employment. It should be noted in this case that Mr Barkla did not resign from his employment. Rather he alleges that the employer’s conduct amounted to dismissal. There is considerable law on whether a resignation is forced by conduct of the employer or that the employer’s conduct amounts to a constructive dismissal either at common law or within the statutory definitions. In our view this law is helpful in the present context because it articulates the nature of employer conduct which will bring an employment contract to an end. This is what Mr Barkla has argued in this case. In O’Meara v Stanley Works Pty Ltd a Full Bench of the Australian Industrial Relations Commission discussed the relevant case law and outlined the legal considerations in the following terms:

…

[23] In our view the full statement of reasons in Mohazab which we have set out together with the further explanation by Moore J in Rheinberger and the decisions of Full Benches of this Commission in Pawel and ABB Engineering require that there to be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. It is not simply a question of whether “the act of the employer [resulted] directly or consequentially in the termination of the employment.” Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution as they may not give full weight to the decision in Mohazab. In determining whether a termination was at the initiative of the employer an objective analysis of the employer’s conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign. [emphasis added].

[48] The reasoning in O’Meara v Stanley Works Pty Ltd 10 was treated as applicable to s.386(1) of the Act by the Full Bench in Ryan v ISS Integrated Facility Services Pty Ltd T/A ISS Facility Services.11

Consideration of whether the Applicant was dismissed

[49] The Applicant submitted he had been dismissed by the Respondent. Mr Eaves submitted that the Applicant had not been dismissed. He contended it was the Applicant’s request for the Separation Certificate that brought the employment relationship to an end.

[50] There must be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. 12 It is not simply a question of whether ‘the act of the employer [resulted] directly or consequentially in the termination of the employment’.13

[51] In December 2009, the Respondent employed the Applicant to work full-time in a permanent capacity albeit had accepted the Applicant working 3 days a week. From November 2015, the Respondent submitted the Applicant was required to work 4 days a week on a casual basis and as of 8 March 2017, 5 days a week. There was no evidence that the Respondent had no work, a shortage of work, or had stood down the Applicant in the past when a request for time off was made.

[52] On 7 April 2017, Mr Eaves requested the return of the company vehicle and mobile phone, and that the Applicant remove his personal items from the vehicle. The Applicant had been provided with the company vehicle and mobile phone from the start of his employment.

[53] Mr Eaves gave evidence that the Applicant was removed from the client’s site and a more reliable mechanic was sent in. Mr Eaves said that the Applicant would be utilised in the workshop when suitable work was available. Mr Eaves’ evidence was ‘he could have asked me for his job back, which he never did.  He just asked me was there any work going, and I said not today, no, there's not.  There may be some coming up and I'll let you know’. 14

[54] The Separation Certificate states as the reason for separation ‘Shortage of Work’. 15

[55] On an objective analysis of the Respondent’s conduct I am satisfied that the Respondent dismissed the Applicant. I have taken into consideration circumstances of the Applicant having been provided with work throughout his employment, having not received an instruction not to work on any other occasion, the instructions to return the vehicle and mobile phone and remove belongings from the vehicle, the notification that he had been replaced, the provision of no further work and the Separation Certificate.

Initial matters

[56] Section 396 of the Act provides that, before considering the merits of an application for unfair dismissal remedy order, the Commission must determine some other initial matters which include:

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

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

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

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

[57] A person has not been unfairly dismissed where the dismissal is consistent with the Small Business Fair Dismissal Code (Code). It is useful to set out s.388(2) of the Act:

388 The Small Business Fair Dismissal Code

(1) The Minister may, by legislative instrument, declare a Small

Business Fair Dismissal Code.

(2) A person’s dismissal was consistent with the Small Business Fair

Dismissal Code if:

(a) immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person’s employer was a small business employer; and

(b) the employer complied with the Small Business Fair

Dismissal Code in relation to the dismissal.

[58] The Code is only relevant if the employer is a small business. I am satisfied the Respondent is a Small Business Employer as defined in s.23 of the Act.

[59] The Code provides:

Summary Dismissal

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

Other Dismissal

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

The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement. The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.

Procedural Matters

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

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

[60] Section 12 of the Act defines ‘serious misconduct’ as having ‘the meaning prescribed by the regulations’. Regulation 1.07 of the Fair Work Regulations 2009 (Regulations) provides:

1.07 Meaning of serious misconduct

(1) For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.

(2) For subregulation (1), conduct that is serious misconduct includes both of the following:

(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;

(b) conduct that causes serious and imminent risk to:

(i) the health or safety of a person; or

(ii) the reputation, viability or profitability of the employer’s business.

(3) For subregulation (1), conduct that is serious misconduct includes each of the following:

(a) the employee, in the course of the employee’s employment, engaging in:

(i) theft; or

(ii) fraud; or

(iii) assault;

(b) the employee being intoxicated at work;

(c) the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.

(4) Subregulation (3) does not apply if the employee is able to show that, in the circumstances, the conduct engaged in by the employee was not conduct that made employment in the period of notice unreasonable.

(5) For paragraph (3)(b), an employee is taken to be intoxicated if the employee’s faculties are, by reason of the employee being under the influence of intoxicating liquor or a drug (except a drug administered by, or taken in accordance with the directions of, a person lawfully authorised to administer the drug), so impaired that the employee is unfit to be entrusted with the employee’s duties or with any duty that the employee may be called upon to perform.

Consideration of initial matters

Application was made within the period required in s.394(2)

[61] As determined by Platt C in Brett Wingate v Causeway Holdings Pty Ltd T/A Western Forklift Services 16the Application was made in the required time.

Protected from unfair dismissal s.382(a)

[62] A person is not protected from unfair dismissal unless the requirement in s.382(a) is met:

(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

[63] Section 383 of the Act defines the meaning of ‘minimum employment period’. The minimum employment period is one year for a small business employer (s.383(b) of the Act).

[64] Under s.384(2) of the Act, I must consider whether any of the Applicant’s service as a casual employee can be counted in his period of employment.

[65] This requires me to determine the Applicant’s period of continuous service under s.384(1) of the Act, whether the Applicant was employed on a regular and systematic basis, and during the period of service had a reasonable expectation of continuing employment on a regular and systematic basis as referred to in sections 384(2)(a)(i) and (ii) of the Act.

384 Period of employment

(1) An employee’s period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee.

(2) However:

(a) a period of service as a casual employee does not count towards the employee’s period of employment unless:

(i) the employment as a casual employee was on a regular and systematic basis; and

(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis; …

[66] Should I find that any or all of the Applicant’s service is counted in his period of employment, I must be satisfied this is of at least 12 months’ duration.

Continuous service

[67] As a matter of the common law of employment, and in the absence of an agreement to the contrary, each occasion that a casual employee works is viewed as a separate engagement pursuant to a separate contract of employment. 17 However, the criteria in s.384(2)(a) of the Act make it clear that s.384 of the Act does not proceed on the basis that a casual employee’s period of employment for the purposes of the unfair dismissal remedy starts and ends with each engagement as understood in the common law of employment.18

[68] Section 384 of the Act is concerned with how an employee’s period of employment is calculated for the purposes of s.382(a) of the Act.

[69] In Wayne Shortland v The Smiths Snackfood Co Ltd  19, the Full Bench expressed:

It is clear from the language of s.384(2) that an employee may have series of contiguous periods of service with an employer that may count towards a single period of employment with that employer. Any given period of service in such a contiguous series of periods of service will count towards the employee’s period of employment only if the requirements in s.384(2)(a)(i) and (ii) are met. Section 384(2) is concerned only with determining which periods of service in such a contiguous series count toward the employee’s period of employment with the employer for the purposes of s.382(a).

[70] A casual employee’s continuous service established by a sequence of engagements with an employer is broken only when the employer or the employee make it clear to the other party by words or actions that there will be no further engagements. The gaps between individual engagements in a sequence of engagements should not be seen as interrupting the employee’s period of continuous employment within the meaning of s.384 of the Act. In particular, a period of continuous service within the meaning of s.384(1) of the Act is not to be seen as broken by a period of leave or an absence due to illness or injury. 20

[71] Unpaid or unauthorised leave does not break continuous service it is simply not counted toward it. 21

Regular and systematic

[72] ‘It is the “engagement” that must be regular and systematic; not the hours worked pursuant to such engagement’.  22 InPonce23 Commissioner Roe found that ‘it is not necessary to establish that shifts and start and finish times are regular or rostered to establish that the employment is on a regular and systematic basis’.24

[73] While in Burke v Marist Brothers St Joseph’s College 25, Vice President Lawler, in adopting the approach of Commissioner Roe in Ponce suggested caution be exercised:

one must not treat the summary of Roe C as a substitute for the language of the statute: the ultimate question always remains whether the employment was ‘regular and systematic’ within the meaning of section 384(2)(a) and care must be taken not to invert the test to one which asks the question whether the employment was ‘occasional or irregular’. (emphasis added)

[74] Meaning to ‘regular and systematic’ was given in Yaraka Holdings 26, where Madgwick J concurred with the majority and as part of his consideration of examples of individuals who were workers in the context of that case stated:

It is clear from the examples that a ‘regular ... basis’ may be constituted by frequent though unpredictable engagements and that a ‘systematic basis’ need not involve either predictability of engagements or any assurance of work at all…

Engagement under contracts on a ‘systematic basis’ implies something more than regularity in the sense just mentioned, that is, frequency. The basis of engagement must exhibit something that can fairly be called a system, method or plan (cf the definition of ‘systematic’ in the Macquarie Dictionary, revised 3^rd edn, 2001). 27

Consideration

[75] From November 2015, the Applicant was required to work four days a week from 6.30am until 2.00pm, except Friday where work finished at approximately midday. The parties did not dispute this. While the Applicant on several occasions notified he would be absent on a Monday he would then inform the Respondent he would work Tuesday to Friday. The work was regular and systematic and there was no break in continuous service.

[76] The evidence in these proceedings concerning work availability, nature of the work, the Applicant’s pay slips and Trailer Inspection documents, supports the proposition that the Applicant’s employment was on a regular and systematic basis. This was confirmed in the evidence given by all witnesses to the proceedings.

[77] Days and hours of work were set and provided regularity of the employment. The Respondent business provided transportation to and from work for the Applicant via the Respondent’s vehicle. The Respondent’s vehicle was only used by the Applicant and it contained both work and personal items including the Applicant’s tools. The Applicant was not required to contact either Mr Proudlove or Mr Eaves each week to ascertain from them days or hours of work, or place of work.

[78] The work had continued from week to week as it had done for years. In light of the Applicant’s history of working for Respondent’s client since starting employment the ongoing availability of trailers to inspect appeared certain. A reasonable expectation of continuing employment was clearly demonstrable and was further reinforced when in March 2017 Mr Eaves instructed the Applicant that he was required to work five days a week due to the Respondent business securing additional inspection work from the client.

[79] When asked whether the Applicant could elect or chose to remain on the four days a week, or to work less than four days, after being instructed to work five days, Mr Eaves indicated that the Applicant was required to work the five days. When pressed again whether there was an alternative to working the five days every week, the position of the Respondent did not change. It was emphasised by Mr Eaves that if the Applicant would work five days a week ‘we wouldn’t be here today’ 28.

[80] The pattern of work disclosed by the evidence is that the Applicant’s employment in the period was regular and systematic. On any view, the Applicant had a reasonable expectation of continuing employment on a regular and systematic basis, and had satisfied the minimum employment period.

[81] Counsel for the Applicant submitted that I should find that the Applicant was not a casual employee but was employed on a permanent basis. Counsel submitted that I should consider that on a weekly basis the Applicant was working 35.5 hrs, was not regularly contacted and asked to work but understood there was set working days and hours. Counsel continued that there was a regular start and finish time and the Applicant knew where and when he was required, how to get there and the requirement to finish daily work allocations.

[82] The factors that changed when the Applicant commenced on a casual basis were a requirement to work four days (32 hours) which was reported to be an increase, cessation of paid leave entitlement, no notice of termination and the New Employment Contract stipulated ‘Casual employment only’. It was unclear on the evidence whether the Applicant’s hourly rate of pay had changed when the casual employment was said to have started, or whether casual loading was provided. Mr Eaves was unable to answer these questions and the material provided to the Commission including the New Employment Contract and payslips did not assist.

[83] Mr Eaves provided evidence, as did Mr Proudlove, the change in employment status from permanent to casual was to incentivise the Applicant to work four days. Otherwise the nature of the work remained unchanged.

[84] On commencing the casual arrangement, Mr Eaves said that the Applicant was required to work four days and have the Wednesday off. There was a firm advance commitment as to the duration of the Applicant’s employment or the days (hours) the Applicant would work.

[85] The Act does not define the term ‘casual employee’. Section 12 of the Act defines what is meant by a long term casual employee; although there is no definition of the term ‘casual’. Therefore, the meaning is to be derived from common law.

[86] Counsel referred to the decision of Williams v MacMahon Mining Services Pty Ltd 29 (McMahon). I have considered McMahon and the cases referred to within it and in doing so have arrived at the conclusion that I am satisfied that the evidence in this matter shows on the balance of probabilities that this was an employment arrangement beyond that of casual employment.

[87] To the extent that the parties by the New Employment Contract described their relationship as ‘Casual employment only’ it is well understood that the descriptions supplied by such an instrument will not override the true legal relationship that arises from a full consideration of the circumstances. 30 In this case the circumstances or indicia reflect the reality of the situation rather than the contract.

[88] There was no evidence to suggest that the Applicant could elect the number of days he would or would not work. At most, when working four days a week, the Applicant would contact the Respondent and inform Mr Proudlove that he would not work for example the Monday and would therefore work Tuesday through to Friday.

[89] It was understood by the parties that the Applicant had no choice but to work the four days, and from 8 March 2017 the five days, otherwise permission and a reason was required to justify any absence. From 8 March 2017 the Applicant had sent one text message on 20 March 2017 stating to the effect that he could not make it into work that day because he was bleeding from an orifice.

[90] Viewed in its totality I consider the evidence shows that the Applicant was a permanent employee of the Respondent and had satisfied the minimum employment period. In the event that I am wrong and the Applicant was a casual employee the Applicant remains protected from unfair dismissal having satisfied the minimum employment period.

Dismissal consistent with the Small Business Fair Dismissal Code

Reason for dismissal

[91] A reason for dismissal was not provided to the Applicant and was not clearly articulated to the Commission.

[92] Mr Eaves submitted and maintained throughout the hearing that he did not dismiss the Applicant and as such was not forthcoming with a reason.

[93] However, Mr Eaves provided reasons for ‘standing down’ the Applicant. Namely, that the Applicant would not have been ‘stood down’ if he had done what was asked of him, turned up for work and inspected 24 trailers a day.

[94] It does not seem coincidental that on the same day that the Applicant asked to have time off for day surgery he was instructed to return the Respondent’s vehicle and mobile phone, was instructed not to attend work and was subsequently provided with no further work thereafter.

[95] The Respondent provided evidence that as of 8 March 2017 there had been a drop in the number of trailers inspected by the Applicant from 24 to an average of 21 trailers per day.

[96] It was submitted by Counsel for the Applicant that the Applicant had no control over the availability of trailers for inspection. Witnesses for the Respondent could not provide evidence to the contrary concerning the aspect of control. However, both Mr Eaves and Mr Proudlove identified that finding 24 trailers to inspect could be done although the number of inspections may be impacted upon by factors such as rain.

[97] I accept that the Applicant was aware that the Respondent required him to inspect 24 trailers a day give or take fluctuations such as when it rained. However, I am unpersuaded that the Respondent was informed or otherwise warned that he risked dismissal if he did not inspect 24 trailers a day.

[98] The evidence of Mr Proudlove was that it was the constant absenteeism not the units or trailers inspected that resulted in the Applicant being ‘stood down’. Where there is a difference in the evidence between that of Mr Proudlove and Mr Eaves I prefer the evidence of Mr Proudlove who appeared most candid.

[99] Having had full and proper regard to the entire course of the Respondent’s conduct, I find that the reason the Respondent dismissed the Applicant was because of his request on 7 April 2017 to have time off on 19 April 2017 for scheduled day surgery, in the context where the Applicant had many absences within the preceding 12 month period.

Code compliance

[100] If the Applicant’s dismissal was consistent with the Code, it cannot be considered to be unfair within the meaning of the Act.

Summary Dismissal

[101] In the Explanatory Statement to the Small Business Fair Dismissal Code it provides: ‘The Code recognises the special circumstances of small business employers by providing separate, simple rules for small business employers to follow when dismissing an employee’ (underlining my emphasis). However, the Code is difficult to interpret. It is drafted in a manner that confuses the reader and understandably has necessitated interpretation by Full Benches of this Commission.

[102] In John Pinawin T/A RoseVi.Hair.Face.Body v Mr Edwin Domingo 31 the Full Bench determined with regard to Summary Dismissal under the Code:

There are two steps in the process of determining whether this aspect of the Small Business Fair Dismissal Code is satisfied. First, there needs to be a consideration whether, at the time of dismissal, the employer held a belief that the employee’s conduct was sufficiently serious to justify immediate dismissal. Secondly it is necessary to consider whether that belief was based on reasonable grounds. The second element incorporates the concept that the employer has carried out a reasonable investigation into the matter. It is not necessary to determine whether the employer was correct in the belief that it held.

[103] In the decision of Jeremy Ryman v Thrash Pty Ltd t/a Wisharts Automotive Services 32 the Full Bench identified clearly that the Code was difficult to interpret. It provided clarification of the meaning of ‘Summary Dismissal’as referred to in the Code:

[26] It is necessary to make the observation at the outset that this issue is not easy to resolve because the Code generally, and this section of the Code in particular, is very poorly drafted. Three different expressions are used to describe the class of dismissals dealt with in the section: “Summary dismissal” (in the section heading, as well as in an apparent cross-reference in the last paragraph of the Code), dismissals “without notice or warning”, and “immediate dismissal”. These expressions are not entirely synonymous. Further, and in a rather disjunctive way, the last three of the four sentences of this section of the Code are concerned with serious misconduct, which must be taken to be also indicative of its subject matter. These four aspects of the Code require some analysis….

[36] It is frankly not possible to arrive at an interpretation of the “Summary dismissal” section of the Code which neatly resolves all these difficulties and inconsistencies. It is likely that the drafter(s) of the Code did not have a complete understanding of the terminology which they used to give expression to their intention. Accordingly the best we can do is to give effect to that intention so far as it may broadly be discerned from the Code as a whole. In that connection we consider that two things are apparent:

(1) The “Summary dismissal” section of the Code is concerned with dismissals which have immediate effect, not dismissals on notice. That is the consistent element of the various expressions used to describe the relevant class of dismissals.

(2) The section is likewise concerned with dismissals made on the basis of serious misconduct. The focus on “serious misconduct” must be taken as identifying the subject matter, notwithstanding that there is no explicit connection between the class of dismissal described and the matter of serious misconduct.

[37] Notwithstanding that the Code, and its accompanying checklist, were apparently designed to be read as “stand alone” documents by small business employers, we prefer the view that the reference to “serious misconduct” is to be read as bearing the meaning in reg.1.07. The types of conduct expressly referred to in the Code as constituting serious misconduct are all encompassed by the reg.1.07 definition, so no direct inconsistency is apparent. The fact that the checklist invites inclusion of “some other form of serious misconduct” suggests that the identified types of conduct were not meant to be exhaustive, and it is otherwise difficult to conclude that they were meant to be exhaustive given that they do not include other types of behaviour which may well constitute misconduct justifying summary dismissal, such as sexual harassment, bullying or significant non-compliance with a lawful and reasonable direction. And, as earlier discussed, the lack of any recognised meaning at law of the expression “serious misconduct” means that the definition in reg.1.07 is necessary to give the expression a clear content.

[38] We therefore consider that the “Summary dismissal” section of the Code applies to dismissals without notice on the ground of serious misconduct as defined in reg.1.07.

Consideration

[104] On 7 April 2017 Mr Eaves says he ‘stood down’ the Applicant and thereafter it is accepted the Applicant did not work any further and on 25 April 2017 was dismissed.

[105] The Respondent provided no evidence that it held a reasonable belief that the employee’s conduct was sufficiently serious to justify immediate dismissal and as such there was no evidence to suggest that the belief was based on reasonable grounds. This is perhaps understandable given the Respondent had submitted the Applicant was not dismissed.

[106] The conduct contemplated under the Summary Dismissal part of the Code is understood by reference to the definition of ‘serious misconduct’ in s.12 of the Act and Regulation 1.07. It is not the case that ‘serious misconduct’ operates as a fixed standard for the determination of the type of conduct by the employee which may warrant summary dismissal. 33

[107] However, a request to an employer for time off for day surgery does not within the context of this matter fit within the definition of ‘serious misconduct’ even when considered in the context problematic absenteeism.

[108] Mr Eaves gave evidence to the effect that he had ‘stood down’ the Applicant to enable the Applicant to think about things. He expressed that had the Applicant made overtures that he had amended his ways, would come in five days a week, would do what was asked and requested that Mr Eaves give his job back, then Mr Eaves may have been minded to do so. 34

[109] On 11 April 2017 the Respondent paid the Applicant for 35.5hrs despite the Applicant having completed only 20 hours of work. On 18 April and 25 April 2017, the Respondent paid to the Applicant what it referred to at the hearing as a ‘goodwill’ 35 payment of $990.00 (net pay) and $992.00 (net pay) respectively.

[110] There were three payments made to the Applicant post 7 April 2017. While expressed to be payments of ‘goodwill’ in my view there was a temporal association between the Applicant being ‘stood down’ on 7 April 2017, and the payments of 11 April, 18 April and 25 April 2017, and when the dismissal took effect. The instruction not to attend work, followed by the three payments is open to be viewed as payment for a notice period notwithstanding the Applicant was not required to work during that time.

[111] I do not consider the period of 7 to 25 April 2017 was a delay demanded by the Respondent wanting to satisfy itself that there was a reasonable basis for immediate dismissal. 36 There was no evidence on which to base a finding that there had been a reasonable investigation into the matter.

[112] I am of the view that Mr Eaves did not hold a belief that the conduct of the Applicant was sufficiently serious to end the employment relationship immediately and therefore whether the belief was based on reasonable grounds is a neutral factor.

[113] Having regarded the evidence before the Commission, including the actions of the Respondent, the conduct of the Applicant, and the provision of notice payments my view is that the dismissal was not a ‘Summary Dismissal’ under the Code. I am therefore obliged to consider the ‘Other Dismissal’ Code provisions.

[114] If the Applicant was a casual employee protected under Part 3-2 of the Act then a period of notice or payment of lieu would not have been required. 37

Consideration of Other Dismissal

[115] Mr Proudlove issued a written warning to the Applicant dated 18 October 2016. The warning set out:

Brett I refer to previous discussion regarding the excessive amount of time you keep taking off in a casual manner. This causes serious disruptions to the organised services and repairs of the day, therefore it has come to the point that we are no longer able or prepare to accept this situation. If you continue along this line we shall be forced to make alternative permanent arrangements. This letter is to be taken as a first official warning.

[116] While the warning does not expressly state that the Applicant would be dismissed if in effect further time off was taken in a casual manner, it is open to infer that ‘no longer able or prepare to accept this situation’ and ‘make alternative permanent arrangements’ indicated the Respondent would bring the employment relationship to an end if the Applicant continued to take off time in a ‘casual manner’.

[117] I do not consider that providing 11 days’ notice to the Respondent requesting a day off for scheduled day surgery can be characterised as taking time ‘off in a casual manner’.

[118] It appeared that on this occasion the Applicant sought to ensure that a request for time off was made with ample notice to the Respondent. This would then provide time for the Respondent to arrange alternative staffing to reduce any serious disruption to the organised services and repairs for the day.

[119] However, subsequent to the request on 7 April 2017 the Respondent instructed the Applicant to return the company vehicle and mobile phone, and not to attend work. This was in circumstances where the Applicant was not offered an opportunity to demonstrate the genuineness of his request by providing a medical certificate.

[120] The warning provided on 18 October 2016 cannot be said to have had any bearing on the request to have time off for day surgery on 19 April 2017. While in my view the Respondent was right to have legitimate concern about the Applicant’s absenteeism the request on the 7 April 2017 did not justify dismissal when considered in the context of such absenteeism. It follows that I have found that the dismissal was not Code compliant and as such will now consider s.387 of the Act.

Harsh, Unjust, or Unreasonable

[121] Section 387 of the Act sets out the criteria for considering whether a dismissal was 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.

[122] The type of conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained by the High Court of Australia in Byrne v Australian Airlines Ltd. 38 McHugh and Gummow JJ explained 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. 39

[123] It is clear that s.387 of the Act contemplates that an overall assessment as to the nature of the dismissal must be made by the Commission. In so doing, the Act sets out a number of considerations that must, where relevant, be weighed up in totality.

[124] It is convenient therefore to use the various provisions of s.387 of the Act, with reference to the relevant circumstances, to outline my consideration of the matter.

Was there a Valid Reason for the dismissal - Section 387(a)

[125] The employer must have a valid reason for the dismissal of the employee, although it need not be the reason given to the employee at the time of the dismissal. 40 The reason for the dismissal should be ‘sound, defensible and well founded’41 and should not be ‘capricious, fanciful, spiteful or prejudiced.’42

[126] The provisions must be applied in a practical, common sense way to ensure that the employer and employee are treated fairly. 43

[127] The Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer. 44 The question the Commission must address is whether there was a valid reason for the dismissal related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees).45

[128] 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 proceedings 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. 46

Consideration

[129] When considering the evidence and assessing the factual circumstances, I am not satisfied that the Respondent had a valid reason for the dismissal of the Applicant related to his capacity or conduct.

[130] The evidence showed that for a period, the Applicant had notified of absences that understandably frustrated Mr Eaves and Mr Proudlove, and had purportedly impacted the Respondent business.

[131] Clearly, the Applicant’s absences on particular days were problematic given Mr Proudlove had issued a warning on 18 October 2017. The warning alerted the Applicant of the risk he faced concerning his employment if he continued to take an ‘excessive amount of time you keep taking off in a casual manner’.

[132] However, the Applicant’s request to have time off on 19 April 2017 for day surgery in circumstances where he had provided 11 days’ notice of the proposed absence and had not been given the opportunity to provide the Respondent with material substantiating the legitimacy of the request cannot be characterised as forming part of an ‘excessive amount of time’ in a ‘casual manner’.

[133] This remains the case when considered in the context of the Applicant having notified of an absence on 20 March 2017 due to bleeding from an orifice and notifying of two other occasions in March regarding ‘crook guts’. In January 2017 the text messages show that the Applicant had notified the Respondent that he would work Tuesday to Friday (the required four days) on two occasions. 47

[134] Further, I am unpersuaded that the decrease in trailer inspections from 24 to an average of 21 per day as of 8 March 2017 constituted a valid reason for dismissal. Circumstances were such that there was no evidence of a warning being provided whether in writing or verbally, to alert the Applicant that he risked dismissal if 24 trailers were not inspected, or that he was performance counselled or otherwise performance managed.

[135] Whether considered in isolation or otherwise against the backdrop of the Applicant’s absences, or purported performance issues regarding the number of trailer inspections, the request made on 7 April 2017 to have time off on 19 April 2017 for day surgery did not provide a valid reason for dismissal.

Notification of the Valid Reason – Section 387(b) and an Opportunity to Respond –Section 387(c)

[136] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made 48, and in explicit49 and plain and clear terms.

[137] An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. 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. 50

Consideration

[138] The Respondent submitted it did not dismiss the Applicant. It follows that there was no evidence to show that the Applicant was notified of the reason or reasons for dismissal. As such the Applicant was not given any opportunity to respond to any reason related to his capacity or conduct.

Unreasonable Refusal of a Support Person – s.387(d)

[139] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal.

Consideration

[140] There was not a request made given the circumstances of the dismissal. Therefore, this is a neutral factor.

Warnings regarding Unsatisfactory Performance – Section 387(e)

[141] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, if the dismissal related to unsatisfactory performance by the person, the Commission must take into account whether the person had been warned about that unsatisfactory performance before the dismissal.

[142] Unsatisfactory performance is more likely to relate to the employee’s capacity to do the job, than their conduct. 51 The Commission must take into account whether there was a period of time between an employee being warned about unsatisfactory performance, and a subsequent dismissal. This period of time gives the employee the opportunity to understand their employment is at risk and to try and improve their performance.52

Consideration

[143] This is a neutral factor in light of the finding that the reason for dismissal was the request for to have time off to have day surgery in the context of the Applicant’s history of absenteeism within the prior 12 month period.

Impact of the Size of the Respondent on Procedures Followed and Absence of dedicated human resources management specialist/expertise on procedures followed – Section 387(f)-(g)

[144] When considering whether a dismissal was harsh, unjust or unreasonable, the Commission must take into account the degree to which: (a) the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and (b) 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.

Consideration

[145] The Respondent is a small business employer and had no access to internal Human Resources expertise.

[146] There was no submission made or evidence put forward that this had impacted on the procedures, or lack thereof, in dealing with the dismissal.

[147] It was however evident that Mr Eaves had limited understanding of the obligations imposed on employers by the Act and the Code. I accept that both the size of the Respondent and the absence of dedicated human resource management specialists impacted upon the procedures or lack thereof. In the case of small business employers with limited capacity to engage dedicated human resource managers or external advisors, some allowance may be made for procedural deficiencies in effecting a dismissal.

[148] However, while Mr Eaves demonstrated a limited understanding of the aforementioned obligations, I am not satisfied that Mr Eaves was so naïve that he did not appreciate that his actions would indicate to the Applicant that he was, or was to be, dismissed. The evidence of the Applicant, which I consider credible, was that he had asked Mr Eaves whether he had been ‘sacked’ on 8 April 2017.

[149] By continuing to assert to the Applicant that he had been ‘stood down’, Mr Eaves denied the Applicant the opportunity: (a) to be notified of the reason or reasons for his dismissal; and (b) to respond those reasons.

[150] Lyle Whyte v Ullrich Aluminium Pty Limited 53(Whyte) has been considered the authority for the proposition that not every procedural deficiency will result in a finding that a dismissal was harsh, unjust or unreasonable.54 In Whyte it was found that failing to give an applicant an opportunity to respond amounts to a small procedural defect in the applicant’s termination.55

[151] However, the procedural deficiency in this matter is dissimilar to that in Whyte. In Whyte the person was informed they were dismissed and reference was made to a reason why. While the person had not the opportunity to respond they at least understood what the status of their employment was.

[152] The dismissal in this matter was unreasonable. On the balance of probabilities I am satisfied that the Respondent acted prematurely in instructing the Applicant to ‘stand down’ absent any enquiry concerning the nature of the request.

[153] There were matters that the Applicant may have advanced concerning the genuineness for his request for day surgery. Further, given the opportunity, the Applicant may have provided a medical certificate or alternatively re-scheduled the day surgery if aware it would prove as gravely problematic as it did. These matters were unable to be advanced in circumstances where the Respondent steadfastly declined to assume ownership for ending the employment relationship.

Other Relevant Matters – Section 387(h)

[154] Amongst other considerations, it is necessary to consider the impact the dismissal had on the Applicant given all of the circumstances. This includes consideration as to whether the dismissal was harsh in the sense that it was disproportionate to the actual conduct found by the Commission. 56

[155] Further, a dismissal may, depending upon the overall circumstances be considered to be harsh on the person due to the economic and personal consequences resulting from being dismissed. 57

[156] In considering the question of what is ‘harsh, unjust or unreasonable’ the Commission is to ensure that ‘a fair go all round’ is accorded to both the employer and the employee: s.635(2) of the Act.

Consideration

[157] I am satisfied that the dismissal of the Applicant was disproportionate to the conduct found by the Commission. Namely, that the Applicant was dismissed after requesting time off for day surgery in circumstances where he had provided 11 days’ notice of the surgery to the Respondent. It was not the case that the Applicant was to take time off ‘in a casual manner’. It was in fact the converse. On this occasion the Applicant had sought to do what was in effect the right thing. That was to provide notice to the Respondent of an approaching absence therefore providing the Respondent with sufficient time to make alternative staffing arrangements.

[158] It was submitted that the Applicant was the sole income earner in his family, and his partner was affected by a disability. The loss of employment had economic consequences as evidenced by the Applicant’s request for a Separation Certificate to enable him to access Centrelink payments. While I have considered that the Applicant was paid approximately two weeks’ notice given the nature of the conduct, length of service and the overall circumstances of this matter, I am satisfied that the dismissal was harsh.

Finding

[159] I have found that there was not a valid reason for dismissal and that the dismissal was unreasonable and harsh.

[160] Division 4 of the Act sets out the remedies for unfair dismissal. The parties are provided with seven days from the date of this decision to file any written submissions regarding Division 4 of the Act. The parties are provided with relevant sections of the Act for their assistance. The matter will then be listed for a telephone hearing.

DEPUTY PRESIDENT

Appearances:

M. Nasser ofRochforts Workplace Solutions for the Applicant.

N. Eaves for the Respondent.

Hearing details:

2017.

Perth:

September 14.

Final written submissions:

 1   Allen and Ors v Fluor Construction Services Pty Ltd (2014) 240 IR 254 [48].

 2   Transcript PN687.

 3   Exhibit A4 AttachmentB.

 4   Exhibit R2 Attachment A.

 5   Transcript PN592.

 6   Ibid.

 7   Ibid.

 8   Transcript PN295.

 9   Barkla v G4S Custodial Services Pty Ltd (2011) 212 IR 248.

 10   (2006) 58 AILR 100.

 11   [2014] FWCFB 8451 [15].

 12   Barkla v G4S Custodial Services Pty Ltd (2011) 212 IR 248 [23].

 13   Ibid.

 14   Transcript PN326.

 15   Exhibit A3.

 16   [2017] FWC 3751.

 17   Wayne Shortland v The Smiths Snackfood Co Ltd (2010) 198 IR 237 [10].

 18 Ibid [11].

 19   Ibid.

 20 Ibid [13].

 21 Section 22 of the Act.

 22   Yaraka Holdings Pty Ltd v Giljevic (Yaraka Holdings) (2006) 149 IR 339 [65].

 23   Ponce v DJT Staff Management Services Pty Ltd t/as Daly's Traffic[2010] FWA 2078.

 24   Ibid at [87].

 25   [2015] FWC 7324.

 26  Yaraka Holdings Pty Ltd v Giljevic (2006) 149 IR 339 [89] & [91].

 27 Ibid [89] & [91].

 28   Transcript PN788.

 29 [2010] FCA 1321.

 30   Personnel Contracting Pty Ltd (t/as Tricord Personnel) v Construction, Forestry, Mining and Energy Union of Workers (2004) 141 IR 31 [24]–[25].

 31 (2012) 219 IR 128 [29].

 32   [2015] FWCFB 5264.

 33 Ibid at [28].

 34   Transcript PN295.

 35   Transcript PN292-302.

 36   Transcript PN302.

 37 The Award and s 123 of the Act.

 38 (1995) 185 CLR 410.

 39   Ibid 465.

 40   Shepard v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 373, 377-8.

 41   Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at p.373.

 42   Ibid.

 43   Ibid as cited in Potter v Workcover Corporation (2004) 133 IR 458 and endorsed by the Full Bench in Industrial Automation Group Pty Ltd T/A Industrial Automation (2010) 202 IR 17 [36]

 44   Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 685

 45   Ibid.

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

 47   Exhibit R2 Attachment A.

 48   Trimatic Management Services Pty Ltd v Daniel Bowley[2013] FWCFB 5160; Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 [151].

 49   Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 [151]; Previsic v Australian Quarantine Inspection Services Print Q3730.

 50   Royal Melbourne Institute of Technology v Asher (2010) 194 IR 1 14-15.

 51   Annetta v Ansett Australia Ltd (2000) 98 IR 233 237.

 52   Johnston v Woodpile Investments Pty Ltd T/A Hog’s Breath Café – Mindarie[2012] FWA 2 [58].

 53   PR974269.

 54   Marie Axmann v Global Players Network Pty Ltd t/a GP Network Pty Ltd[2013] FWC 6719.

 55   PR974269 [82].

 56   Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1.

 57   Byrne v Australian Airlines Ltd (1995) 185 CLR 410 465.

Printed by authority of the Commonwealth Government Printer

<Price code G, PR596162>