Craig Perkins v iFab Steel Pty Ltd

Case

[2024] FWC 614

7 MARCH 2024


[2024] FWC 614

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Craig Perkins
v

iFab Steel Pty Ltd

(U2023/11755)

COMMISSIONER SIMPSON

BRISBANE, 7 MARCH 2024

Application for an unfair dismissal remedy – Dismissal not unfair – Application dismissed

  1. On 27 November 2023, Mr Craig Perkins (Mr Perkins / the Applicant) applied to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy, alleging he was unfairly dismissed from his employment with iFab Steel Pty Ltd (the Respondent).

  1. I listed the matter for a directions hearing by telephone on 23 January 2024. The matter was listed for Hearing on 6 and 7 March 2024.  At the commencement of the Hearing both parties agreed that it was preferable to deal with the matter as a determinative conference rather than a Hearing. 

  1. Mr Perkins appeared at the Determinative Conference on his own behalf. The Respondent was represented by its Director, Mr Nathan Rice.

  1. The Applicant relied on his Form F2 Application and its attachment, documentary evidence and oral submissions and evidence. The Respondent relied on its Form F3 Response, documentary evidence and oral submissions and evidence from Mr Rice, Mr Todd Eunson and Mr Phillip Pezzi.

  1. The Applicant commenced his employment on 17 February 2023 and was dismissed from his employment on the Respondent’s initiative on 6 November 2023, making his period of employment with the Respondent approximately nine and a half months. The application was filed on 27 November 2023, within 21 days of the dismissal. The Respondent is not a small business employer, and there is no jurisdictional objection to the Applicant’s application.

Relevant legislation

  1. Section 385 of the Act states:

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.”

  1. The question for determination is whether Mr Perkins’ dismissal was harsh, unjust or unreasonable pursuant to s.387 of the Act, which states:

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.”

Background

  1. The Applicant commenced full-time employment with the Respondent as a painter on 17 February 2023.

  1. On 30 October 2023, Mr Perkins worked an 11-hour shift. The following day, on 31 October, he commenced work at 6:00am and continued work until 7:00am on 1 November 2023. After finishing work on the morning of 1 November 2023, Mr Perkins left his work site to return home. He did not attend work on 2 November 2023.

  1. Mr Perkins attended his workplace on the morning of 6 November 2023. After arriving at work, he was informed that he would not be offered any further work. It was agreed that Mr Perkins was dismissed by the Respondent, and that his termination of employment was communicated to him by Mr Todd Eunson on behalf of the Respondent. 

  1. The Respondent submitted the reason for Mr Perkins’ dismissal was the “numerous occasions of missed deadlines, unsatisfactory work, negative feedback from clients and disregard of direction from management”.   The Respondent stated that on several occasions, the Applicant would arrive at work over 2 hours late, or would leave early to take the train back home, which in some instances left colleagues in unsafe work environments or would require work to be cancelled.

Evidence and Submissions

Lateness and non-attendance

  1. Mr Rice gave evidence that the spreadsheet he provided with the Respondent’s material showed for 28% of Mr Perkins contracted days of employment he did not turn up to work without explanation, and Mr Rice estimated about 25% to 30% of those occasions Mr Perkins was late or ‘really late’. 

  1. Mr Perkins did not give any specific evidence disputing the accuracy of these estimations. 

15 May 2023 to 1 June 2023

  1. Mr Rice said that for the period between 15 May 2023 and 1 June 2023 Mr Perkins did not turn up to work and did not provide an explanation.  Mr Perkins said in January 2023 his mother had open heart surgery and in May his mother needed further surgery, and he was helping care for her.  Mr Perkins agreed that he did not make any application to be away from work however the Respondent knew what was happening.  Mr Rice said that he was completely unaware of Mr Perkins’ mother needing surgery.  Mr Rice said he helps his employees out in all manner of ways, and the fact that he was happy to bring Mr Perkins back into the company after an extended period of unexplained absence demonstrates he is supportive of staff. 

Sydney June 2023 Project

  1. The Respondent said that in June 2023 during a project in Sydney, Mr Perkins enforced method of painting half of a project was the source of a $7,000 bill to rework the project due to incorrect application.  Mr Rice said that during this project Mr Perkins was caught sleeping in a vehicle by a supervisor, and also in this project Mr Perkins was sent to collect items within a 2 hour round trip and was absent for over 6 hours and left another staff member on site without contact.  Mr Rice said Mr Perkins performed defective work on this project in Sydney and the Respondent had to pay Mr Perkins to go back down and rectify the whole staircase, and this caused losses in the thousands of dollars. Mr Perkins denied that he did defective work on the staircase.  Mr Perkins said a person called Cameron did the earlier work and he said he would repair it.  Mr Perkins said it was painted before he commenced employment with the Respondent, and all he did was fix it.

  1. Mr Rice in response to this evidence said the parts (of the staircase) were painted by Mr Perkins in the workshop prior to it going to Sydney and that was the work that Mr Perkins needed to go to Sydney to fix. 

23 August to 19 September 2023

  1. The Respondent said prior to Mr Perkins dismissal he had several verbal warnings about his inability to meet deadlines which led to an incident where Mr Perkins walked out of work, turning off his phone and without notice, did not turn up for a period of four weeks.  In the Form F3 Response to the Applicant it said this occurred in April however in his oral evidence Mr Rice corrected this, and said this period referred to in the Form F3 was from 23 August to 19 September 2023 and referred to the records provided with the Respondent’s material.  Mr Rice said Mr Perkins abandoned his employment for this period of four weeks from 23 August to 18 September, and his first day back at work was 19 September without any explanation.  Mr Perkins said despite this he again decided to give Mr Perkins another go. 

  1. In relation to this four-week period of absence, Mr Perkins evidence was to the effect that he had to go to Sydney to do a repair job and he thought it would take about a week, but it took much longer as it was quite a large job.  Mr Perkins said a previous employee had damaged a staircase and he was there for seven weeks.  Mr Perkins said the Respondent sent him to Sydney to work at Bankstown to paint a spiral staircase and another one at Bellevue House where the previous work was not good, and he had to repair the work.  Mr Perkins then said this work was for the Respondent just before he had the time off.  Mr Perkins then agreed during his oral evidence that for the period between 23 August to 19 September he was in fact on time off work.  Mr Perkins claimed he told Mr Richard Girvan, the Operations Manager he was taking this time off. 

  1. Mr Rice said that the Respondent has leave forms and structures in place (to take leave).  Mr Rice said Mr Perkins, without contact, just didn’t turn up to work, and ‘it’s just a blank absence.’  Mr Rice said the staircase Mr Perkins referred to in Sydney took him seven weeks to repaint, and a similar staircase has just been repainted by his existing painting staff in two weeks.  Mr Rice said Mr Perkins caused the Respondent to endure huge costs. 

Late September 2023 Teneriffe Project

  1. The Respondent also submitted that in late September 2023, Mr Perkins was working on a residential project that ran 2 weeks over its deadline. As a result, the Respondent stated that Mr Perkins accessed the site himself without permission of the Respondent and the police were nearly called by the client. Mr Rice said this was a clear example of Mr Perkins disregarding instructions. The Respondent argued that this project resulted in a liability of $4,500 for rectification of damage to flooring and cabinetry.  The Respondent said that throughout the project, the Respondent stated that Mr Perkins had been aggressive towards management and did not follow directions, resulting in staff conflict.  The Respondent said Mr Perkins caused the Respondent to have to dedicate additional uncosted labour so that the project could continue.  Mr Rice referred to an email at page 68 of the Digital Hearing Book to support his claim that there was a $5,500 invoice for rectification work on this job.

  1. Mr Perkins claimed that another employee was in charge of this job requiring the rework and it was this other employee that caused the ‘disaster’ on this job.  Mr Perkins said he told the owners he would fix it and he did.  Mr Perkins said the client let him come in and fix the poor work done by another employee.  Mr Rice said he does not have any supervisors and the two painters are both qualified tradesmen, and the person who did this work was ‘Jim’ and ‘Todd’ had told Mr Perkins that ‘Jim’ was in charge.  Mr Rice said the other employee did not go into the site on a Sunday. 

Orbital Sander Issue

  1. Mr Perkins agreed that the Respondent did buy a Sander that he had requested to be purchased, and he had not used the heavy sanders that the Respondent had before.  Mr Perkins said a wire had come off the Sander and he had to go back to using the Respondent’s heavy tools.  Mr Perkins said he had requested that the Sander be repaired in June and it was still not returned by October.  Mr Perkins said he rang the repair company himself and it was not ready, and the Respondent would not buy another one for him.  Mr Rice said the Respondent did not use the Sander Mr Perkins wanted, however they purchased the one he wanted for him and when it broke down Mr Perkins wanted the Respondent to buy another one and Mr Rice said the Respondent had many other sanders Mr Perkins could use. 

31 October 2023

  1. Mr Perkins submitted that on 31 October during his shift from 6:00am on 31 October 2023 to 7:00am on 1 November 2023, he purchased dinner for himself and his co-workers, but was not reimbursed.  Mr Perkins further stated that the other employees had a 4-hour break during the shift, but he did not.  The Respondent initially submitted that Mr Perkins had used a company credit card without permission to purchase food for employees on the evening of 31 October 2023, however Mr Rice later clarified that this was another employee and not Mr Perkins.  Mr Rice said for the Respondent that there was no reason why Mr Perkins could not have taken a break that evening, and he would have had the Respondent’s full support had he chosen to do so.

  1. The evidence of Mr Perkins concerning the work he was directed to perform in relation to this incident included a text message which appeared to be from Richard Girvan to Mr Perkins which said as follows:

“Working with the other two.  This stair gets completely painted today/ tonight.  No excuses.  This must happen.” 

  1. Mr Rice said in relation to the work performed that evening that other staff had a break when Mr Perkins didn’t, and the fact that the other employees had a break supports the fact that Mr Perkins could have taken a break if he wished, but he does not take instruction from anyone and if he wanted to go home, he would just go home.  Mr Rice said the issue was that a job that should have taken one or two weeks, would take Mr Perkins so long to do, and he would go missing all the time, and that was why it was so stressful at the end.  Mr Rice said he faces liquidated damages and upset clients and Mr Perkins would say he could do a job in two weeks, and it would take seven weeks.  Mr Rice said Mr Perkins was paid for the double-time all night for the night of 31 October.  Mr Rice conceded that things could have been done better (regarding the handling of the termination) however he said later his painters stripped and repainted that same staircase in one week, about a quarter of the time Mr Perkins would take. 

  1. Mr Rice said Mr Pezzi, the client for this job, was complaining throughout the job.  Mr Perkins said he spoke to Mr Pezzi on 31 October and Mr Pezzi said that he just needed the job done and channel nine were coming the next day to film.  Mr Perkins said he managed to get to a reasonable level in the time he had.  Mr Perkins said he got one coat of sealer on the staircase and then one coat of black and he was exhausted.

  1. Mr Pezzi from Capital Luxury Residents gave evidence in support of the Respondent’s case.  Mr Pezzi was the client in relation to the work being performed by Mr Perkins on the evening of 31 October.  Mr Pezzi said Mr Perkins was tasked with painting his staircase however he said Mr Perkins lack of care, inability to follow instructions and poor workmanship led to paint spray covering the new carpets and the entire house.  Mr Pezzi said as a result the Respondent incurred the cost of $8,287 plus GST to replace the damaged carpets.  Mr Pezzi said furthermore, the Respondent was required to send another team to strip and repaint the entire staircase due to a highly defective finish.

  1. Mr Pezzi said in addition to these issues, he has faced additional expenses due to Mr Perkins presence on site, including professional cleaning services totalling $300.  He said the repainting of all walls in the vicinity incurred a cost of $4,750, and the replacement and resealing of the micro cement on the staircase amounted to $2,275. 

  1. Mr Perkins said that Mr Pezzi said to him he really needed the job done overnight and channel nine was coming, and that Mr Pezzi told him to do his best.  Mr Pezzi said that was not true.  Mr Pezzi said there were issues with the job itself but the other issue was there was overspray all over the house and he made clear to the Respondent that it was unacceptable.  He said there were clearly marks on the staircase itself but the overspray was horrific.  Mr Perkins said the other two employees he was working with were responsible for doing the masking up so there would be no over spraying.  Mr Rice said they were two apprentices under direction from a painter being Mr Perkins with 30 years’ experience.  Mr Perkins agreed one was an apprentice welder who was 19 but the other was an older worker who mainly operated a chopper gun.  Mr Pezzi said he told Mr Perkins before he started spraying that he needed to ensure there was no damage to the carpet or walls as they were already done, and his foreman on the job said the same.  Mr Pezzi said when he saw the damage to a multimillion-dollar award winning home he could not believe it.  Mr Perkins agreed that he was the trade qualified painter in the group of workers. 

  1. Mr Perkins said while painting the staircase he was standing on top of a ladder, and it was quite dangerous.  Both Mr Pezzi and Mr Rice said no issue was ever raised that there was any danger in performing the work.  Mr Rice said the Respondent does not have any step ladders and the Respondent only has safety ladders with safety barriers. 

1 November 2023

  1. Mr Perkins said he was about to call an Uber (at about 7am on the morning of 1 November) and Todd Eunson the Project Manager turned up and pointed to a tiny bit of dust and said “this is a shit job”.  Mr Rice said he was not there at the time, but the employees there had told him they did not want Mr Perkins to come back that day.

  1. After leaving work on the morning of 1 November 2023, Mr Perkins submitted that he was contacted by phone by Mr Eunson during his journey home. Mr Perkins stated that he was asked to return and perform additional work, but refused to do so as he was fatigued from his shift. Mr Perkins said in his oral evidence that he had just completed 26 hours of work and he was heat stressed and had to go home.  He stated that he also informed the Respondent at this time that he would be unable to work on 2 November 2023, as he would need this day to recover.   

  1. The Respondent argued that there was no enforced request for Mr Perkins to return to work, and that he had left the worksite without notice to the project manager and other employees.  The Respondent submitted that as part of its duty of care, Mr Perkins was contacted and asked about the state of the site as the other staff were left with no instruction.  As a result, Mr Perkins was contacted by the Respondent and asked to provide an update on the work he had completed. The Respondent stated that Mr Perkins did not advise that he would not be working the following day however it would have been enforced as company policy.

  1. Mr Rice said the last interaction between management (Mr Eunson) and Mr Perkins, was where Mr Perkins swore at Mr Eunson during a telephone call, hung up and turned his phone off. The Respondent submitted that this occurred after Mr Perkins left a worksite before a project had finished immediately after Mr Eunson had arrived. The Respondent said the conduct of Mr Perkins on this job resulted in a cost of at least $12,000 to the Respondent and the loss of a client, which has jeopardised the stability of work. Additionally, the Respondent stated that throughout this project, Mr Perkins had received several verbal warnings for failures to meet deadlines. 

  1. Mr Rice said he was away at the time of the events on the morning of 1 November 2023 but that the combination of the events became so stressful for the company it could not go on and he instructed Mr Eunson to dismiss Mr Perkins.  Mr Rice said Mr Perkins reported to Mr Eunson as Mr Eunson was the Project Manager.  Mr Rice also said a verbal warning had previously been given to Mr Perkins after his extended periods of absence.  

6 November 2023

  1. On 6 November 2023, the Applicant returned to work at the workshop at Coopers Plains. He stated that after arriving, two employees of the Respondent asked, “what are you doing here?” Mr Perkins’s evidence is that shortly after this, Mr Eunson approached him and informed him that there would be no further work offered by the Respondent. Mr Perkins said Mr Eunson said “Nah no work” and there was no reason given for his termination.  Mr Perkins stated that he questioned this decision and asked for a reason for his dismissal, saying “What do you mean? Since I have been here, I have always given 100% and you’ve been through 6 other painters, what’s the reason?”  Mr Perkins said he was given no reason nor a separation certificate or termination letter. The Respondent stated that when he was dismissed, Mr Perkins was told that there would be no work for him moving forward and he was given an overview of his recent failures of work and his unacceptable language towards Mr Eunson.  The Respondent denied that Mr Perkins requested a separation certificate.

  1. Mr Rice said Mr Perkins reference to six painters having left was incorrect and that Mr Perkins was only his second painter. 

  1. Mr Eunson said in his oral evidence that he was up in his office and Mr Perkins was down on the floor and he went downstairs and asked Mr Perkins to step outside the workshop, and they moved outside and Mr Eunson said that he told Mr Perkins that they were going to have to part ways with him and that there were multiple reasons and Mr Eunson said he explained to Mr Perkins those reasons and then said there was no more employment there for Mr Perkins.  Mr Eunson said the reasons he gave were jobs constantly going over timelines and not being able to show up to work and also the Mermaid Beach job that went well and truly over what he said it would take.  Mr Eunson’s evidence was that Mr Perkins said to him he had always done his best and Mr Eunson said he confirmed the employment relationship was over.  In response Mr Perkins continued to maintain Mr Eunson did not give him reasons at the time.  Mr Eunson said he did say what the issues were, and he did specifically mention the Mermaid Beach job.  Mr Eunson accepted that he did not give Mr Perkins an opportunity to say why he should not be dismissed. 

  1. Mr Eunson also said that the last conversation that he had with Mr Perkins was the Wednesday morning the previous week and he had not heard anything from Mr Perkins between then and the Monday morning when he dismissed Mr Perkins. 

Workcover

  1. Mr Perkins said he is currently receiving Workcover payments.  Mr Perkins said he has been being paid by Workcover from 1 January 2024 and that medically he would have no capacity to work as a painter until June 2024. 

CONSIDERATION  

  1. Mr Perkins submitted that there was no valid reason for his dismissal and that his refusal to work additional hours on 2 November 2023 was due to fatigue. Consequently, there was no valid reason for the dismissal.  In addition, Mr Perkins submitted that there was no notification of any valid reason for his dismissal before the decision to terminate was made, and he was not provided with an appropriate opportunity to respond to any reason for the dismissal.

  1. The Applicant therefore submitted that his dismissal was harsh, unjust and unreasonable, and he was therefore unfairly dismissed.  The Respondent submitted the reason for Mr Perkins’ dismissal was the “numerous occasions of missed deadlines, unsatisfactory work, negative feedback from clients and disregard of direction from management”.   Mr Rice said the events on the night of 31 October and Mr Perkins working into the night was just one instance in a series of events leading up to that where Mr Perkins could not get work done in a reasonable time.  Mr Rice said it just does not take that long to paint a staircase. 

  1. Mr Rice said in closing that Mr Perkins dismissal was based on highly defective work, unwillingness to listen to instructions, countless days off with no explanation, countless days being away, verbal abuse of Mr Eunson the Project Manager, misleading time frames on jobs for completion and huge financial losses to the company. Mr Rice said that Mr Perkins further employment jeopardised the livelihoods of the other staff members and Mr Perkins removal from the company immediately was very critical for him. Mr Rice said that even from just the financial position, what he's asking for is nothing compared to what Mr Rice has had to pay for.

Valid Reason

  1. I am satisfied that Mr Perkins had been warned about his extended periods of unapproved absences.  I am satisfied that the Respondent had given Mr Perkins opportunities to address his performance.  It is also apparent from the evidence supplied that Mr Perkins was regularly late to work. 

  1. I am also satisfied that Mr Perkins took extended periods of unapproved leave in his relatively short period of employment, and whilst I have considered Mr Perkins explanation for at least one period of extended leave concerning his taking on a caring role, the fact is he did not follow appropriate steps to apply for and have these periods of leave approved.  This issue of itself would have provided in my view the Respondent a valid reason for dismissal at the relevant times of these periods of unexplained leave.  In any event it is to the Respondent’s credit that it agreed to allow the employment relationship to continue despite this conduct on the part of the Applicant

  1. In addition to this, there is clear evidence that it appears reasonably clear that Mr Perkins was taking a considerably longer period of time to complete work then it would appear others would take to perform the same work and this was causing the Respondent to incur significant additional cost.  The evidence points to this having occurred in relation to work in Sydney, at Teneriffe, and also the work at Mr Pezzi’s property.  The evidence also points to issues with the quality of Mr Perkins work, and his work being required to be reworked at great cost to the Respondent. 

  1. I am also inclined to accept the Respondent’s claim that Mr Perkins did not tell Mr Eunson in the course of discussions between them on the morning of Wednesday 1 November that he would not be attending work on Thursday 2 November, and that Mr Perkins did not have contact with his employer between Wednesday morning 1 November and the morning of Monday 6 November 2023.  This tends to be consistent with a pattern of conduct on the part of the Applicant that he did not advise his employer when he was not going to be attending work. 

  1. In all of the circumstances of the findings above, I am satisfied the Respondent had a valid reason for dismissal based on Mr Perkins conduct and performance. 

Notification of Reason

  1. There is a conflict between the evidence of Mr Perkins and Mr Eunson about the reasons or lack thereof given by Mr Eunson to Mr Perkins for his dismissal at the time of his dismissal on the morning of 6 November 2023.  I am inclined to the view that Mr Eunson did refer to Mr Perkins jobs constantly going over timelines, not showing up to work and also the final job that went well and truly over time.  It would have been appropriate for Mr Eunson to have given a more comprehensive explanation of all of the issues that the evidence has now disclosed that the Respondent has relied upon.  This may have been the result of the decision of Mr Rice to delegate to Mr Eunson the task of communicating the decision to dismiss as Mr Rice was away at the time.

Opportunity to Respond

  1. The evidence is that Mr Perkins was not given an opportunity to respond to the reasons related to his capacity or conduct on 6 November 2023 as Mr Eunson accepted in his evidence that the purpose of the conversation was to communicate the decision that had already been made.  This failure to give Mr Perkins an opportunity to respond weighs in favour of a finding that the dismissal was unfair. 

Unreasonable refusal to allow a support person

  1. Whilst the Respondent did not refuse a request for the Applicant to have a support person present on the morning of 6 November, the practical effect of the way the discussion unfolded meant Mr Perkins did not have an opportunity to request to have a support person present.

Whether the Applicant was warned

  1. Mr Perkins dismissal was related to both his conduct and his performance.  To the extent that the termination was based on performance issues, I am satisfied based on the evidence of Mr Rice that Mr Perkins had been warned about the issues in relation to his performance.

Size of the Employer and absence of Human Resources Management

  1. The Respondent is not a small business as it had 22 employees at the relevant time.  Mr Rice gave evidence that the business is fairly new, and has grown quickly.  It is apparent the Respondent does not engage a dedicated Human Resource Management Specialist and the decision to terminate Mr Perkins was made by Mr Rice and the task of communicating the dismissal was delegated to Mr Eunson who is a Project Manager.  This evidence tends to support the conclusion that these factors impacted on the procedures followed in effecting the dismissal. 

Any Other Matters

  1. Mr Perkins period of employment with the Respondent was fairly brief, and during that period the Respondent appears to have demonstrated considerable leniency toward Mr Perkins when he took extended periods of leave without explanation.  This tends to indicate that the Respondent was genuinely trying to give Mr Perkins an opportunity to overcome the performance and conduct issues. 

  1. Mr Perkins also gave evidence that he made a Workcover claim in the days just prior to his termination and since his termination, the claim has been accepted and he has been receiving Workcover payments since 1 January 2024 and continues to receive those payments.  His evidence was to the effect that he remains totally incapacitated to perform painting work until at least June 2024.  This tends to mitigate against the financial impact the dismissal has had on him. 

CONCLUSION

  1. I have considered each of the matters that I am required to take into account in determining the matter. I am satisfied that the evidence in this matter tends to support a conclusion that the Applicant engaged in conduct that was deliberate behaviour that was inconsistent with the continuation of the employment relationship by his consistent pattern of not attending for work without explanation. I have also taken into account other performance issues in being satisfied that the Respondent had a valid reason for dismissal. As set out above, there were certainly procedural flaws in the way the Respondent effected the dismissal of the Applicant, and this no doubt has contributed to the Applicant’s view that his dismissal was unfair, however when all the considerations in section 387 are weighed up, I am satisfied that overall the dismissal was not harsh, unjust or unreasonable in all of the circumstances of this case, and therefore was not unfair. On that basis the application is dismissed. An order will be issued separately and concurrently with this decision to that effect.



COMMISSIONER

Appearances:

Mr Craig Perkins on his own behalf.

Mr Nathan Rice for the Respondent.

Hearing details:

2024
By Microsoft Teams Video
6 March.

Printed by authority of the Commonwealth Government Printer

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