Daniel Hey v Pacific Golf Club

[2020] FWC 3496

[2020] FWC 3496

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Daniel Hey
v
Pacific Golf Club
(U2019/13501)

COMMISSIONER SIMPSON BRISBANE, 2 JULY 2020

Application for unfair dismissal

[1] On 3 December 2019, Mr Daniel Hey made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy against Pacific Golf Club Pty Ltd (the Respondent).

[2] The matter was listed for conciliation before a Commission staff conciliator on 9 January 2020 however did not proceed on the basis that it had not received the further material Mr Hey had filed that morning in response to the Form F3.

[3] The matter was allocated to me and I listed the matter for a directions hearing on 10 February 2020. During the directions hearing, it was established that the parties may be agreeable on the matter being listed for a further conciliation. Accordingly, the matter was listed for conciliation before a Commission staff conciliator on 20 March 2020.

[4] The matter did not settle at the second conciliation and was again allocated to me. I issued directions for the filing of material, and the matter was listed for hearing on 18 May 2020.

[5] Due to the Covid-19 restrictions issued by the Government, Mr Craig Ryan, Operations Manager, sent correspondence seeking that the hearing be adjourned until such time Mr Ryan could return to the workplace. Mr Hey did not consent to the hearing being adjourned on the basis that the matter had been afoot before the Commission for some time and that there was no valid reason for Mr Ryan not to attend as the hearing was listed to be conducted by telephone.

[6] Having considered the parties’ views in relation to the Respondent’s request to adjourn the matter, I determined to relist the matter for a mention on 18 May 2020.

[7] The matter was listed for substantive hearing on 16 June 2020 and I issued directions for the filing of material. The Respondent was required to file material in relation to the merits of his application and witness statements by no later than 5:00 pm on 1 June 2020. The Respondent was required to file submissions or statements in reply by 8 June 2020. The parties complied with the directions for filing of material.

Legislation

[8] Section 385 of the Act provides:

“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.”

[9] The Respondent was not a Small Business Employer and Mr Hey had been employed for more than six months. In deciding whether a dismissal was unfair on the grounds that it was harsh, unjust or unreasonable, the Commission is required to consider the criteria in s.387 of the Act, as follows:

(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.

Evidence

[10] Mr Hey tendered two witness statements from himself dated 20 April 2020 and 8 June 2020. He also tendered statements of Bill Donnelly, Adam Cocciola, Tekhle Beyene, Laura Osborne, Paul Buxton, Peter Alexander and Benjamin McAdam. At the Hearing Mr Ryan advised he did not wish to cross-examine any of Mr Hey’s witnesses other than Mr Hey. I explained this would mean the statements would come in unchallenged and Mr Ryan accepted this.

[11] The Respondent submitted witness statements from Craig Ryan, Jared Mckirdy, Amber Williams, Kimberley Ikin, Kevin Harper and Sam Romeo. Mr Hey sought to cross examine all witnesses except Sam Romeo.

Incident 2 November 2019

[12] Mr Hey commenced employment with the Respondent on 12 October 2016. Mr Hey was employed in the casual position of Food and Beverage Attendant up until his dismissal on 12 November 2019.

[13] Mr Hey submitted that his employment was terminated as a result of an incident on 2 November 2019 whereby he was given permission by Ms Kimberley Ikin, Duty Manager, to use Mr Jared Mckirdy’s house account to purchase dinner. Mr Mckirdy was a manager of the Respondent.

[14] On 12 November 2019, Mr Hey was rostered to commence work at 12:00 pm. At approximately 11:00 am, Mr Hey said he received a phone call from Mr Craig Ryan, Operations Manager, requesting that he attend work prior to the commencement of his shift. At 11:30 am, Mr Hey attended a meeting with Mr Ryan and Mr Kevin Harper, Duty Manager. During this meeting, Mr Hey was terminated from his employment on the grounds that he had stolen from the Respondent by the means of using Mr Mckirdy’s house account.

[15] At 12:12 pm the same day, Mr Hey sent Ms Ikin a message regarding the incident. It is necessary to set out their exchange:

Mr Hey (12:12 PM, 12 November 2019):	Hey did you get asked at all about the other night when we used Jarred’s account?
Ms Ikin (10:00 am, 13 November 2019):	No I haven’t been asked anything recently about it.
Mr Hey (11:13 am, 13 November 2019):	Okay well, you said it would be okay jared wont mind. If I said that to craig would you back it u[p]. Coz I got fired over it.

[original text used]

[16] My Hey submitted that he did not receive a response from Ms Ikin in relation to what happened, and said she not only mislead him with her responses but she had blocked him from further communication.

[17] Mr Hey said between 2 and 12 November at no point was he spoken to by the management of the Respondent other than a casual conversation with Jared Mckirdy.

[18] Mr Ryan gave evidence that on approximately the 9 November he was informed Mr Hey had received a meal and had placed it on a duty manager’s account without their authority. the Mr Ryan said over the next few days he investigated matter.

[19] Mr Ryan said he confirmed through CCTV that Mr Hey had placed a meal order himself which is against club procedures, and said it is a requirement that all staff have another member of staff to place their order for transparency and to avoid situations like this. Mr Ryan said he also confirmed Mr Hey had used his Till Log in code to place the order and that the order was paid for on Jared Mckirdy's private house account.

[20] Mr Ryan said over the next few days he asked all managers whether Mr Hey was given permission to use this account, and all replied negative, including the relief manager on duty the night of the incident, Ms Kim lkin.

[21] Ms Kimberley Ikin gave evidence that on 2 November, she was the duty manager on the night shift. She said at approximately 7:00pm, Mr Hey approached her behind the bar and asked if he could have a 10-minute break to have his dinner. Ms Ikin said she approved a ten-minute break as the bistro was very quiet that evening.

[22] Ms Ikin said Mr Hey stated he was going to order dinner and place the meal on Mr Mckirdy’s house account. Ms Ikin said she told Mr Hey that she put her meal on Mr Mckirdy’s account earlier that evening. Ms Ikin said Mr Mckirdy gave her permission to use his account for her dinner as she was covering his shift.

[23] Ms Ikin said Mr Hey then proceeded to put his own meal on Mr Mckirdy’s account. Ms Ikin said she did not encourage or suggest that he charge his meal to Mr Mckirdy’s account, however did not stop him from doing so as she was aware Mr Hey was friends with Mr Mckirdy and assumed Mr Mckirdy had given Mr Hey permission.

[24] Mr Mckirdy said in his witness statement at no stage did he give permission for Mr Hey to use his account. He said he gave Ms lkin permission to use his account as a goodwill gesture for her doing his shift.

[25] Mr Mckirdy said he had a conversation with Mr Hey a few days later and asked him about the incident as he had only just been informed that his account had been used. He said Mr Hey told Mr Mckirdy that that he had given him permission to use the account. Mr Mckirdy said he strongly denied this. Mr Mckirdy said Mr Hey has changed his version of events to imply Kim lkin had given him permission to use the account, after initially saying it was Mr Mckirdy.

[26] During cross examination of Ms Ikin, it was put by Mr Hey that on 2 November Mr Hey said to her he wished he could have a spaghetti carbonara but didn’t have any money, and that Ms Ikin then told Mr Hey he could use Mr Mckirdy’s account, and that she herself had used it earlier that day. Ms Ikin said she did advise Mr Hey that she had used Mr Mckirdy’s account, however denied telling Mr Hey he should also use the account. Ms Ikin said she did not stop him using the account as she knew Mr Mckirdy and Mr Hey were friends.

[27] During cross examination it was put to Mr Mckirdy that in October 2019 he gave permission for Mr Hey to buy a steak. Mr Hey said his father came in with Peter Alexander and his father asked where he got the steak from, and Mr Mckirdy butted in and said he allowed him to put it on his account. Mr Mckirdy said he could not remember this.

[28] Mr Mckirdy was asked if the conversation he was referring to in his statement was the joking conversation where Mr Hey said he was owed a meal by Mr Mckirdy. Mr Mckirdy said he was referring to a later conversation where Mr Hey told him he used his account because he had permission from Ms Ikin.

[29] During cross examination it was put to Mr Hey that he said originally that he got permission from Jared Mckirdy, but then changed his story. Mr Hey said this was an exaggeration of what occurred. He said he and Mr Mckirdy were friends at the time and still are. He said he never got permission from Mr Mckirdy, but rather had a conversation with him and jokingly said to Mr Mckirdy that Mr Mckirdy owed him a meal.

[30] It was put to Mr Hey that Ms Ikin didn’t have authority to use the account as it was not her account. Mr Hey said Ms Ikin was acting manager on the night and was the most senior member working that night. Mr Hey said he thought because she was the manager she had authority to give permission.

[31] Mr Hey was asked if he had used Mr Mckirdy’s account before. Mr Hey said he had used it twice, but that both times Mr Mckirdy was there and gave him permission. He said in around October, a few weeks before his termination Mr Mckirdy bought him a steak off his account.

[32] Mr Peter Alexander, a financial member of Pacific Golf Club, gave evidence he witnessed Mr Mckirdy say he bought a steak for Mr Hey in October 2019.

[33] Mr Ryan said in his statement that one of the reasons for Mr Hey’s dismissal was due to taking food using Mr Mckirdy’s account and that this was subsequently referred to the police. Mr Hey asked Mr Ryan during cross examination why was misconduct not listed as a reason in the Form F3. Mr Ryan said he couldn’t comment as he did not prepare the Form F3.

[34] Bill Donnelly, a former manager of Pacific Golf Club gave evidence that during his time at the Club, he witnessed duty managers and temporary duty managers using their house account to purchase meals for themselves, as well as to purchase meals for other staff. He said he had seen managers and temporary duty managers pass their card to staff for this purpose.

[35] Mr Donnelly said it would be fair to say that this was not common practice for a manager to pass their card to a staff member but was a practice during his 11 years at the Club. He said it was a practise that was not tightly controlled by any senior management, and that he recalled many instances in 11 years where staff told him that they have been given the duty managers card to purchase their meal or a manager had 'arranged' for the meal to be provided.

Taking stock

[36] The Respondent alleged one of the reasons for Mr Hey’s dismissal was because of Mr Hey’s pattern of consuming products without paying for them. Mr Ryan said in his statement that he found it necessary to caution Mr Hey for taking products from the club and consuming them on the premise without payment. Mr Ryan said Mr Hey always had an excuse, whether it was he was going to pay for it later or he simply forgot.

[37] Mr Ryan said that after a stock take in February 2019 it was revealed that 22 Nippy’s Milks were unaccounted for. He said that an investigation lead by duty manager Kevin Harper determined that Mr Hey had consumed multiple Nippy's Milks without payment.

[38] Mr Ryan said Mr Hey was asked to explain his actions and admitted to consuming some of the products but that he simply forgot to pay for them. Mr Ryan said Mr Hey was given the benefit of the doubt and after a verbal warning, continued his employment.

[39] Ms Ikin said she witnessed Mr Hey on one occasion taking and consuming stock that is not for sale, including a chocolate bar, from the safe room during a shift. It was put to Ms Ikin that she gave permission for Mr Hey to take a Milky Way. Mr Ikin said she does not remember ever giving him permission to take stock.

[40] Duty manager Mr Kevin Harper gave evidence that on several occasions Mr Hey was seen drinking Nippy’s Iced Coffee. Mr Harper said when asked Mr Hey if he had paid for it his reply was yes, however upon further investigation on the transaction history reports there was no sale recorded.

[41] Mr Harper said when Mr Hey was questioned his reply was that he going to pay later. He said Mr Hey has also been seen taking brownies and ice cream and eating them without payment. Mr Harper said Mr Hey was also approached on these issues and said he was going to pay later. Mr Harper said to his knowledge payment was never received for these items.

[42] Mr Tekhle Beyene, a former employee of the Respondent provided in his statement that when he worked in the Members Bar of the Respondent some food not sold could be consumed by staff. Mr Beyene said from time to time, with permission from the duty manager or the kitchen staff, food from the bar was consumed by other staff during the shift.

[43] Mr Beyene also said staff including himself ordered their own food for a meal and used a register themselves to process the sale. Mr Beyene said he never saw Mr Hey steal anything from the Respondent including stock.

[44] Mr Adam Cocciola, a former employee also gave a statement that said during his time at the Respondent, he did witness Mr Hey drinking Nippy's ice drinks, however he always saw Mr Hey pay for the drinks.

[45] During cross examination of Mr Ryan, it was put by Mr Hey that despite the allegation he took 22 drinks, Mr Hey had three witnesses that never saw him take one. Mr Ryan said he never accused of Mr Hey taking all 22, however there were a number of occasions where Mr Hey was seen on CCTV taking the drinks without paying and where Mr Hey said he had forgotten.

[46] During cross examination it was put to Mr Harper that several witnesses gave evidence that Mr Hey did pay for drinks on several occasions so how was it that he could say Mr Hey never paid for the drinks. Mr Harper said words to the effect that there was no evidence of Mr Hey ever paying for the drinks.

[47] It was put to Mr Hey that he was given a verbal warning regarding the Nippy’s drinks. Mr Hey accepted he received this warning sometime in February. Mr Hey also conceded there were occasions where he didn’t pay for products due to forgetting or due to not having an ability to pay for them. He said he would always ultimately pay for them.

[48] It was put to Mr Hey that after a stock take in February, it was revealed that there were approximately 22 Nippys drinks that had not been accounted for. Mr Hey’s response was that the Respondent could not make Mr Hey responsible for all 22 drinks. Mr Ryan said CCTV footage revealed that Mr Hey was often responsible for the Nippys drinks.

Tips

[49] Mr Ryan said in April 2019 he entered the member’s bar where Mr Hey was working by himself drinking a Nippy’s Milk. Mr Ryan said he asked him if he had paid for it and said Mr Hey replied "yes".

[50] Mr Ryan said he then went to the CCTV footage to find that Mr Hey had taken money from the staff tip jar to pay for it. He said the staff tip jar is used to fund the staff Christmas party every year and this common knowledge for all staff. Mr Ryan said he then went and asked Mr Hey about the footage and his reply was "I was going to pay for it later". Mr Ryan said again he was given the benefit of the doubt, and after a verbal warning, continued his employment at the club.

[51] Mr Ryan gave evidence that the policy at the time was that if a staff member purchased any food, another staff member needed to ring it up for transparency reasons. Mr Ryan said all management were advised of this.

[52] Mr Ryan said that it was well known not to take money from the tip jar. It was put to Mr Ryan that despite this, there was evidence from Bill Donnelley that this occurred all the time where staff would take money and replace it. Mr Ryan said if this occurred, this was not allowed as the staff tip jar went towards the staff end of year party.

[53] Mr Mckirdy said he caught Mr Hey taking money out of the tip jar to pay for a Schweppes bottle. He said when he confronted Mr Hey about it Mr Hey said he gets lots of tips, so he can use it to buy his drink. Mr Mckirdy said he told Mr Hey that was not ok and he needs to pay for it with his own money. Mr Mckirdy said he did not pass this information onto higher management.

[54] Mr Donnelley gave unchallenged evidence that he had seen staff members use small amounts of money from the tip jars to assist customers and members if they did not have enough money to complete their purchase. Mr Donnelley said he had seen various staff members and senior managers over 11 years, use money from these jars to purchase an item for themselves.

[55] Mr Donnelley said if he ever saw a staff member do this, he would always remind the staff member that they were obliged to pay that money back. Mr Donnelley said he had seen Mr Hey do this on two occasions and has always seen him repay the money either later in the shift or on a following shift. Mr Donnelley said he believed Mr Hey to be honest in this situation. Mr Donnelley’s evidence was that it was common practice amongst staff as well as with many manager's during his time at the Respondent.

[56] Mr Hey accepted he took coins out of the tip jar. Mr Hey said he didn’t know he wasn’t allowed to take tips from the tip jar. It was put to Mr Hey he told Mr Ryan he was going to pay for it later. Mr Hey accepted this occurred and said that as he was required to pay for the drink straight away, and as he was not allowed to have his wallet during his shift, his plan was to take the money from the tip jar and then replace the money after his shift. Mr Ryan said there was no policy regarding wallets only phones. Mr Hey accepted it was not the case he wasn’t allowed his wallet, but rather he just didn’t have it at the time.

[57] Mr Hey said he did not remember getting a verbal warning for taking money from the tip jar, and that it was a common occurrence for staff to do this. Later in the Hearing Mr Hey conceded he recalled having a conversation with Mr Ryan about not taking the tips in April. It was put he also said he recalled a conversation with Mr Mckirdy where he was told not to do it. It was put this therefore meant that at some stage he took the tips knowing he was not supposed to. Mr Hey said the conversation with Mr Ryan was not about not taking tips, but rather not taking tips without replacing them.

Lateness to work

[58] Mr Ryan said in his statement that Mr Hey arriving to work late became so commonplace that other staff would joke about it. Mr Ryan said that after a two-week period of Mr Hey arriving for work late no less than six times from eight shifts, he verbally informed Mr Hey that this was not good enough and if he arrived late again he would receive a written warning. Mr Ryan said the very next shift Mr Hey arrived late and subsequently was given a written warning.

[59] Mr Harper supported Mr Ryan’s evidence that Mr Hey was continuously late to his shift on numerous occasions.

[60] Mr Mckirdy said in his statement that on numerous occasions he had to have a chat to Mr Hey about his work ethic and constantly turning up late for work.

[61] In relation to the issue of staff being late, Mr Hey referred to an email from Mr Ryan dated 1 May 2019 to all staff providing a warning for arriving to work late. Mr Hey submitted this was directed to all staff and not just him.

[62] In relation to the written warning on 31 May 2019, Mr Hey accepted he showed up to work three minutes late and received the written warning. He said he didn’t arrive late again after that. Mr Hey’s response was that this was not just him but other staff members as well. Mr Ryan said other staff members also had issues with arriving late and received written warnings as well.

[63] It was put to Mr Hey that he was also warned verbally about showing up late six times out of eight shifts. Mr Hey said he does not accept he arrived six out of eight times, however does recall a conversation about arriving late a few days before the all staff email on 1 May 2019. It was put to Mr Hey that Mr Ryan alleged he was late 6 to 8 times after the all staff meeting and received a verbal warning from Mr Ryan a day before the written warning. Mr Hey said if this was the case, he would have received a written warning on one of those times as per the email. He said it would mean he received the written warning on the seventh time he was late.

[64] Mr Hey asked Mr Ryan how it could be the case that he did not receive warnings for the six times he was late. Mr Ryan said that after a period of improving his punctuality, Mr Hey slipped back into the trend of turning up to work a few minutes late each shift. Mr Ryan said he was being lenient, and eventually had to draw the line somewhere and issued he written warning.

[65] Mr Hey put to Mr Ryan, why was it the case he was employed for three years if he was such a troubled worker with so many issues. Mr Hey asked how many of the issues were actually true. Mr Ryan said he generally got along with Mr Hey and said Mr Hey was a good person. He said whenever he would chat to Mr Hey about his work ethic, Mr Hey would improve for a time but he would then slip back into old habits. He said eventually it came time for Mr Hey to move on.

Meeting 12 November

[66] Mr Ryan said he called Mr Hey on the morning of 12 November and asked him to arrive for his shift 30 minutes earlier as he wanted to discuss the incident that took place on 2 of November.

[67] Mr Ryan said Mr Hey asked if this was to do with “the Meal” to which he replied “yes”. Mr Ryan said Mr Hey arrived 30 minutes early and confirmed he was comfortable with Mr Harper being present in the meeting.

[68] Mr Ryan said he informed Mr Hey that he had evidence of him placing an order for a meal himself and asked him to explain his actions. Mr Ryan said Mr Hey replied “I have an excuse, but you won’t believe me”. Mr Ryan said he responded with “try me.” Mr Ryan said Mr Hey then shook his head which Mr Ryan took to meaning Mr Hey had nothing further to add.

[69] Mr Ryan said he asked Mr Hey if he did have anything further to add which he replied “no.” Mr Ryan said at this point he explained to Mr Hey that he didn't follow club procedures by ringing up the meal himself, that he had no authority to use someone else's account and due to his previous history, including taking product without paying for them and his continued lateness to work, that he would no longer be required for work at the club.

[70] Mr Ryan said he again asked Mr Hey if he had anything to add to which he replied “no.”

[71] Mr Ryan’s evidence was that that he told Mr Hey before the meeting that the purpose of the meeting was to discuss the events of 2 November. Mr Hey said he was not told the reason for the meeting before he arrived.

[72] Mr Hey accepted he arrived half an hour early to his shift on 12 November for a meeting with Mr Ryan. Mr Hey said he did not give permission for Mr Harper to be present. Mr Hey said he was told he was terminated before he was told about the incident and was only given an opportunity to respond after he was told he was terminated.

[73] Mr Ryan said at the start of the meeting Mr Hey was given an opportunity to explain his actions in relation to the current issue of using Mr Mckirdy’s account but Mr Hey had no explanation. Mr Ryan said Mr Hey said he had a reason, but that Mr Ryan wouldn’t believe him.

[74] Mr Ryan said he then listed all of the previous issues and advised that was three strikes and he was terminated. Mr Ryan said if the meeting was pre-determined he would have ensured there was someone to cover the shift, and that it was his intention to hear what Mr Hey had to say. Mr Hey said that there was a staff member named Emily who was covering his shift. Mr Ryan said he had no recollection of this.

[75] It was put to Mr Hey that the witness statements put forward were of friends of his father and that he regularly socialises with. Mr Hey said that was the case with Mr Peter Alexander but not Mr Paul Buxton.

Consideration

Valid Reason

[76] After considering the evidence as described above, I am of the view that none of the reasons provided by the Respondent to dismiss Mr Hey were valid reasons for dismissal.

[77] In relation to Mr Hey’s tardiness, I accept the Respondent’s evidence that Mr Hey was in fact late to work on a number of occasions, and the warning letter he received was valid. However, Mr Hey’s evidence, that was unchallenged by the Respondent, was that after receiving the warning letter Mr Hey was not late to another shift. For this reason, being late to work could not be a valid reason for dismissing Mr Hey.

[78] In relation to taking stock without paying for it, I do not accept the Respondent’s position that Mr Hey was likely responsible for 22 missing drinks. The unchallenged evidence of Mr Beyene and Mr Cocciola was that they always saw Mr Hey pay for the drinks he consumed.

[79] I accept there may have been some occasions where Mr Hey forgot to pay for the drinks, although the evidence on this issue was vague. I am not satisfied it would have been his intention take any drinks without paying for them, and ultimately, I accept he would have paid for them upon being notified.

[80] The fact Mr Hey was seen taking money from the tip jar to pay for the Nippy’s Milks seems to be in line with Mr Donnelley’s unchallenged evidence that it was common for staff to take money from the jar to pay for food on shift and replace they money at a later time. I accept that taking tips was not likely to be the company policy, however am of the view this was never strictly monitored by management and that there was likely a culture of doing so amongst staff.

[81] In relation to the incident on 2 November, I am not inclined to the view that this justified terminating Mr Hey’s employment.

[82] On Mr Hey’s own evidence it is clear Mr Mckirdy did not expressly give permission. Mr Hey should not have used the account without permission from Mr Mckirdy on this occasion, who was the owner of the account. I am satisfied this resulted in Mr Hey engaging in misconduct.

[83] However, I am of the view that the evidence suggests Ms Ikin likely gave Mr Hey permission to use Mr Mckirdy’s account. Mr Hey gave a detailed description of the conversation that occurred, however Ms Ikin’s evidence was somewhat vague. While Ms Ikin was not the owner of the account, I accept this may have led Mr Hey to believe it was okay for him to use Mr Mckirdy’s account.

[84] Further, the evidence appears to make it clear that Mr Hey was friendly with Mr Mckirdy, and I accept Mr Hey’s evidence that in the past Mr Mckirdy has allowed Mr Hey to use his house account. For these reasons, I do not accept that this incident on 2 November could necessarily be classed as stealing and should have resulted in a warning letter rather than a termination.

[85] For the reasons above I find that the Respondent did not have a valid reason for dismissing Mr Hey.

Notified of Reason

[86] I am satisfied Mr Hey was notified at the meeting on 12 November prior to being dismissed that a reason for his dismissal was due to the incident that occurred on 2 November. However, it is clear from Mr Ryan’s own evidence that Mr Hey was only notified of the reasons in relation to stealing stock and being late after he was terminated.

Opportunity to Respond

[87] I am also satisfied Mr Hey was given an opportunity to respond to the incident on 2 November, however was not given an opportunity to respond to the issues concerning stealing stock or being late, as he was only notified of these reasons after being terminated.

Unreasonable refusal of a support person

[88] There is no evidence to suggest Mr Hey was denied a support person at the meeting on 12 November.

Warnings - unsatisfactory performance

[89] I accept Mr hey was warned in relation to being late to work.

Size of employer's enterprise and human resources specialists

[90] Mr Hey submitted despite not having a dedicated HR team, Pacific Golf should be aware of the process, and despite saying this was the first time he has gone through this process at the Commission, this was the third unfair dismissal application against Pacific Golf.

[91] I accept that although Pacific Golf is not a small business as defined by the Act, it is not a large business, and the absence of a HR team has likely affected the way in which the Respondent dealt with Mr Hey’s dismissal.

Other relevant matters

[92] There are no other factors I consider relevant in this case.

Conclusion

[93] After weighing the criteria under s.387 I am of the view that Mr Hey’s dismissal was harsh, unjust and unreasonable. I must now turn to remedy.

Remedy

[94] Mr Hey did not seek reinstatement. Having considered the evidence, I am of the view that there has been an irrevocable breakdown in the working relationship, and therefore reinstatement would be inappropriate in any event. Consideration must now turn to section 392 and whether a remedy of compensation should be ordered.

[95] Section 392 of the Act provides:

“392 Remedy—compensation

Compensation

(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

Criteria for deciding amounts

(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer’s enterprise; and

(b) the length of the person’s service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that the FWC considers relevant.

Misconduct reduces amount

(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

Shock, distress etc. disregarded

(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.

Compensation cap

(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:

(a) the amount worked out under subsection (6); and

(b) half the amount of the high income threshold immediately before the dismissal.

(6) The amount is the total of the following amounts:

(a) the total amount of remuneration:

(i) received by the person; or

(ii) to which the person was entitled;

(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and

(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.”

[96] The approach to the calculation of compensation is set out in a decision of a Full Bench of the Australian Industrial Relations Commission in Sprigg v Paul’s Licensed Festival Supermarket. 1 That approach, with some refinement, has subsequently been endorsed and adopted by Full Benches of the Commission in Bowden v Ottrey Homes Cobram and District Retirement Villages inc T/A Ottrey;2 Jetstar Airways Pty Ltd v Neeteson-Lemkes3and McCulloch v Calvary Health Care.4

[97] I have had regard to the authorities above.

The effect of the order on the viability of the employer’s enterprise

[98] The was no issue raised about the viability of the business and the Respondent confirmed it was currently trading.

The length of service

[99] Mr Hey worked for the Respondent for a period of three years. There is no basis for a reduced amount of compensation on account of Mr Hey’s length of service.

The remuneration would have received, or would have been likely to have been received, if Mr Hey had not been dismissed

[100] Mr Hey was terminated on 12 November 2019 and was not paid notice and was not entitled to notice as he was a casual employee. He provided evidence that he enjoyed his work with the Respondent and would have continued in employment for the foreseeable future.

[101] Estimating the length that Mr Hey would have remained employed in all the circumstances involves a degree of speculation. There is evidence that suggests that the relationship was becoming progressively more strained between Mr Hey and management, including Mr Ryan and Mr Harper. I am inclined to the view that given this issue, and the clear evidence of Mr Hey’s constant being late for work and the written warning, that the relationship may not have been long lived. I am satisfied had Mr Hey not been dismissed it is unlikely that Mr Hey would have remained employed for more than eight weeks.

[102] Mr Hey said he was paid $580 gross per week as a casual on regular and systematic hours. Mr Ryan did not dispute the monetary earnings as claimed by Mr Hey and did not dispute he was not paid notice. Assessing the period of eight weeks times $580 equals $4,640.

The efforts of Mr Hey to mitigate loss suffered because of the dismissal

[103] Mr Hey said he obtained employment the day after his dismissal. I do not intend to reduce the amount on the basis of a failure to mitigate loss.

The amount of any remuneration earned by the person from employment or other work during

the period between the dismissal and the making of the order for compensation.

[104] Mr Hey gave evidence that he earned between $300 and $350 a week between 13 November 2019 and 21 March 2020 where he was stood down from his new employment due to Covid-19. Mr Hey gave evidence he received a stand down letter from Gumdale Tavern, and his employment was subsequently terminated. The Respondent did not challenge this evidence.

[105] Mr Hey did not provide any pay slips from Gumdale Tavern, so to calculate the remuneration earned, it is appropriate to use an average weekly figure based on Mr Hey’s evidence being $325 per week. $325 per week for 8 weeks equals $2,600. $4,640 minus $2,600 is $2,040.

The amount of any income reasonably likely to be so earned by Mr Hey during the

period between the making of the order for compensation and the actual compensation

[106] Mr Hey is currently unemployed and there is no evidence to suggest that Mr Hey will earn any other income between the making the order and the actual compensation.

Other relevant matters

[107] There are no other matters I consider relevant to the determination of appropriate compensation as required by section 392 of the Act.

Misconduct reduces amount

[108] I am satisfied that that Mr Hey engaged in misconduct by using Mr Mckirdy’s house account without permission from Mr Mckirdy and this contributed to the employer’s decision to dismiss Mr Hey. On that basis it is appropriate to reduce the amount in accordance with section 393 of the Act. I intend to the reduce the amount by 10%. 10% of $2,040 is $204 resulting in amount of $,1836

[109] I intend to order that Pacific Golf Club Pty Ltd pay Mr Daniel Hey the amount of $1,836 and 9.5% superannuation on that amount gross taxed according to law within 21 days of the date of this decision.

COMMISSIONER

Appearances:

Mr Daniel Hey appearing on his own behalf
Mr Craig Ryan appearing for the Respondent

Hearing details:

2020,
Brisbane:
June 16.

Printed by authority of the Commonwealth Government Printer

<PR720715>

 1 AIRCFB, Munro J, Duncan DP, Jones C, 24 December 1998) [(1998) 88 IR 21].

 2   [2013] FWCFB 431.

 3   [2014] FWCFB 8683.

 4   [2015] FWCFB 2267.